K S NAZAR ALI MILLS Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THIS reference under Section 13 (1) of the Madhya Bharat Sales Tax Act, 1950, has come up before me for hearing on a difference of opinion having arisen between my learned brothers Newaskart. , and Samvatsar J. , who first heard the reference, The facts and circumstances in which the reference has been made, have been stated in the opinion expressed by my learned brothers. It is not necessary for me to repeat all these facts and circumstances. The relevant facts, however, can be very shortly stated. Section 11 of the Madhya Bharat Sales Tax act gives a right of appeal to an assessee against any assessment or order of refund or penalty to the prescribed authority. It also prescribed the form in which an appeal is to be preferred, the procedure for its hearing, limitation for filing an appeal, the powers of the appellate authority and inter alia says that every order passed in appeal under the Section shall, "subject to the powers of revision conferred by Section 12 of the Act and of reference made to High Court under Section 13 shall be final". The next Section (Section 12) deals with the revisional powers of the Commissioner of Sales Tax. It runs as follows:

(2.) BEFORE the Commissioner of Sales Tax, the assessee contended that under section 12 of the Act as it stood at the time of the commencement of the assessment proceedings, he could file a revision petition without paying the amount of the tax assessed on him; that this right vested in him when the assessment proceedings were initiated; that this vested right could not be taken away except by express enactment or necessary intendment; and that the amendment of Section 12 making a substantial restriction on the assessce's right of revision requiring a payment of the entire assessed amount as a condition precedent to the entertain ability of the revision petition could not affect his right of revision from a decision in the proceedings which commenced prior to the amendment of Section 12. On these contentions and at the instance of the assessee, the Commissioner of Sales Tax referred four questions to this Court for expression of opinion. One of the questions referred was, however, not pressed before the Division Bench. The remaining three questions referred by the commissioner of Sales Tax are as under:

(3.) WHETHER the amendment though coming into force after the assessment of the case governs the revision application in respect of such assessment, but submitted after such amendment came into force and if so, whether by virtue of such amendment a condition of prepayment of tax assessed can be imposed precedent to the entertainment of such revision. According to the learned Judges, who first heard this reference, all these questions overlapped each other, but the main issue raised in the reference was whether section 12 conferred on an assessee a right of revision akin to a right of appeal vesting in the as- sessee on the date o the commencement of the assessment proceedings. Nevaskar J. took the view that Section 12 conferred a right of revision on the assessee and that this right vested in him at the time of the initiation of the assessment proceedings and was not affected by the amendment in Section 12 of the Act, and further that in the present case the assessee had a legal right to have his petition for revision heard by the Commissioner without payment of tax as required by the third proviso to Section 12 (2) of the Act. Samvatsar J. was of the opinion that Section 12 merely conferred the power of revision on the Commissioner and did not confer on the assessee any right to a general relief.