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State Of U.P Through The Sales Tax Officer v. Jaipuria Brothers Ltd. .
Factual and Procedural Background
The respondent, Jaipuria Brothers Ltd., was the sole selling agent of Swadeshi Cotton Mills Co. Ltd., Kanpur from 5 October 1946 and sold cloth and yarn on behalf of that manufacturer. The respondent held a licence under Section 6 of the U.P. Sales Tax Act, 1948 and, considering itself an agent and not a "dealer" within Clause (c) of Section 2 of the Act, did not file any return for the assessment year 1948–1949.
The Sales Tax Officer (Kanpur) issued a notice under Section 21 of the Act on 20 March 1952 and, despite the respondent's protest that it was not a dealer, assessed the respondent on 31 March 1952 to tax based on estimated turnover that had escaped assessment for 1948–1949. The respondent appealed to the Judge (Appeals) — the appeal was allowed and the assessment annulled.
The Commissioner of Sales Tax, U.P. filed a revision before the Judge (Revisions) (the revisional authority). By order dated 28 March 1955 the Judge (Revisions) allowed the revision, set aside the Judge (Appeals) order and remanded the case for fresh assessment after scrutiny of account books.
Pursuant to that remand, the Sales Tax Officer issued a notice on 10 June 1955 calling for accounts for re‑assessment for 1948–1949. The respondent objected that a fresh assessment was barred by the time limit in Section 21; the Sales Tax Officer overruled this objection by order dated 2 September 1955. The respondent then filed a writ petition under Article 226 of the Constitution.
The learned single Judge allowed the writ petition (order dated 4 November 1955), holding that an assessment in 1955 on turnover escaping assessment in 1948–1949 was barred by the three‑year limitation under Section 21 as it stood then, and issued a mandamus restraining the Sales Tax Officer and the Commissioner from proceeding with the assessment. The State filed the present special appeal against that order.
Legal Issues Presented
- Whether, in view of Section 21 of the U.P. Sales Tax Act (as it stood in March 1952), the Sales Tax Officer could lawfully make an assessment in 1955 of turnover which escaped assessment for the year 1948–1949, having regard to the three‑year limitation prescribed by Section 21.
- Whether the Judge (Revisions) had jurisdiction to set aside the assessment and remand the case for fresh assessment (i.e., whether his order of 28 March 1955 was beyond jurisdiction and therefore null and void).
- Whether the 1956 amendment to Section 21 (and, in particular, the second proviso to sub‑section (2) of the amended Section 21) could validate or otherwise affect the legality of the 28 March 1955 revisional order or permit assessment notwithstanding the earlier limitation period.
Arguments of the Parties
Appellant (State / Learned Standing Counsel) — Principal Contentions
- Relying on the amended Section 21 (post‑1954 and particularly the 1956 Amendment Act), and specifically on the second proviso to sub‑section (2) of the new Section 21, the limitation of time for making an assessment or re‑assessment does not apply to an assessment made in consequence of directions contained in an order of the Judge (Revisions). Therefore, even if the old Section 21 was restrictive, the amended provision permits the Sales Tax Officer lawfully to proceed with the assessment on remand.
- The order of the Judge (Revisions) dated 28 March 1955 was not a wrong order under the old Section 21 merely because it could not immediately be enforced; the revisional authority did not lack inherent jurisdiction to pass such an order.
Respondent (Jaipuria Brothers Ltd.) — Principal Contentions
- The respondent argued that any fresh assessment in 1955 was barred by the limitation in Section 21 (three years) applicable to turnover escaping assessment for 1948–1949, and that therefore the Judge (Revisions) had no jurisdiction to remand for a fresh assessment; the revisional order of 28 March 1955 was null and void.
- It was contended that the 1956 amendment to Section 21 could not validate or cure a void revisional order which the Judge (Revisions) lacked power to make at the time; reliance was placed on certain Income‑tax authorities and on the decision in Firm Bangali Mal Satish Chandra Jain v. The Sales Tax Officer, Agra (1958 A.L.J. 228) to support the contention that retrospective amendments or subsequent enactments cannot validate acts done without jurisdiction.
- Alternatively, the respondent argued that even if the amended Section 21 confers power, the Judge (Revisions) had not in fact exercised any such newly‑conferred power when making the 1955 order, and hence the order could not be validated by later amendment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Privy Council decision reported as 1938 P.C. 175 | The Privy Council observed that once a final assessment is arrived at, it cannot be reopened except in the circumstances detailed in Sections 34 and 35 of the Income Tax Act; the Commissioner's powers under the revisional provision must be exercised subject to the express provisions and time limits in the Act. | The Court distinguished that authority: it held that those observations about the Income‑tax code did not affect interpretation of the powers of the Judge (Revisions) under Section 10 of the Sales Tax Act, because the statutory framework and revisional powers under the Sales Tax Act differ. |
| Commissioner of Income‑Tax, Bombay… v. Edulji F.E. Dinshaw (1943 I.T.R. 340) | Cited by the respondent to support the proposition that revisional or supervisory powers in the income‑tax context are constrained by express statutory provisions limiting reopening of assessments. | The Court treated this income‑tax authority as distinguishable and following the Privy Council approach; it held that those income‑tax authorities do not control interpretation of the revisional powers under the Sales Tax Act. |
| Commissioner of Income‑Tax, Bombay v. Mangaldas Motilal & Co. (1944 I.T.R. 89) | Similar income‑tax precedent relied upon by respondent to argue limitations on revisional power and reopening of assessments. | The Court considered the income‑tax decisions to follow the Privy Council line and found them inapplicable to the Sales Tax Act's separate scheme of appellate and revisional powers. |
| Firm Bangali Mal Satish Chandra Jain v. The Sales Tax Officer, Agra (1958 A.L.J. 228) | Held that an amendment to an Act did not validate an earlier act (a Governor's notification) which had been invalid when made; a subsequent amendment cannot retrospectively validate an act not lawfully done on the date it was made. | The Court regarded this authority as distinguishable: it explained that the Bangali Mal decision concerned validation of a void notification and did not support the respondent's contention that the revisional order of 28 March 1955 was beyond jurisdiction and hence void. The present Court held the revisional order was intra vires and required no validation. |
Court's Reasoning and Analysis
The Court allowed the appeal and analysed the matter by reference to the statutory scheme of the Sales Tax Act and the relevant provisions in issue (Sections 9, 10 and 21). The reasoning proceeded in key steps, based strictly on the text of the opinion:
- The Court accepted that under the old Section 21 the Sales Tax Officer could assess turnover that had escaped assessment, and that such an assessment in respect of the year 1948–1949 could validly be made up to 31 March 1952. The Sales Tax Officer had in fact made an assessment on 31 March 1952 which was thereafter the subject of appeal.
- The Court examined Section 9 (sub‑section 3 and 4) of the Sales Tax Act which sets out the powers of the appellate authority (Judge (Appeals)). Sub‑section (3) empowers the appellate authority, inter alia, to set aside an assessment and direct the assessing authority to pass a fresh order after such further inquiry as may be directed. Sub‑section (4) provides that every order passed in appeal shall be final subject to revisional powers under Section 10.
- Noting there is no prescribed time limit for disposal of an appeal, the Court observed that in practice the appellate order directing fresh assessment might be made after the three‑year limitation in old Section 21 had expired. To avoid rendering the appellate power ineffective, the Court construed Section 21 so that the three‑year limitation applies to the initial assessment by the Sales Tax Officer but does not defeat a re‑assessment or fresh assessment made in pursuance of directions issued by the appellate authority.
- The Court then considered Section 10 (sub‑section 3) — the revisional power. It noted that the Judge (Revisions) may call for and examine the record of any order made by any Appellate or Assessing Authority and may pass such order as he thinks fit. The Court concluded that the revisional authority's powers are at least as wide as the appellate authority's powers and include the power to set aside an assessment and direct a fresh assessment after such further inquiry as may be directed.
- Applying this reading, the Court held that the order of the Judge (Revisions) dated 28 March 1955 — which set aside the assessment and remanded for fresh assessment after scrutiny of accounts — was an order within jurisdiction and valid. It did not contravene the Sales Tax Act.
- The Court addressed the respondent's reliance on income‑tax authorities (including the Privy Council authority and related cases) and the Bangali Mal decision. It explained that (i) the income‑tax cases concerned a different statutory scheme where specific sections (Secs. 34 and 35 of the Income Tax Act) exhaustively governed reopening of assessments and thus are not applicable to interpretation of the Sales Tax Act's revisional powers; and (ii) the Bangali Mal decision related to validation of an invalid notification and was distinguishable on its facts and legal context.
- The Court also observed that the position is made absolutely clear by the amended Section 21 (as substituted by the Uttar Pradesh Sales Tax (Amendment) Act XIX of 1956). The amended section expressly contemplates that an order of assessment made pursuant to a notice served within the extended period or an assessment made in consequence of directions of appellate/revisional authorities is not to be defeated by the ordinary time limits. However, the Court emphasised that the second proviso to sub‑section (2) of the amended Section 21 does not itself confer a new power on the revisional authority; rather it makes explicit that the time‑limitation provisions do not apply to assessments made under directions of appellate or revisional authorities.
- On this basis the Court concluded the revisional order of 28 March 1955 was intra vires, did not require validation, and the Sales Tax Officer is competent to proceed with fresh assessment in pursuance of that order.
Holding and Implications
Holding: The appeal was allowed. The order of the learned Judge (allowing the respondent's writ petition and issuing a mandamus restraining the Sales Tax Officer and the Commissioner from proceeding with assessment) was set aside, and the respondent's petition was dismissed. The Court made no order as to costs.
Implications and direct effects:
- The Court held that the Judge (Revisions) validly exercised revisional powers on 28 March 1955 when he set aside the earlier assessment and remanded the case for fresh assessment; that order was not null and void and required no subsequent validation.
- Accordingly, the Sales Tax Officer is competent to conduct the fresh assessment in pursuance of the revisional order (and, in any event, the amended Section 21 of 1956 makes the position clear with respect to time‑limitations).
- The decision reverses the single Judge's mandamus restraining assessment and permits the state authorities to continue the re‑assessment process; no costs awarded.
- The Court expressly distinguished the income‑tax authorities and the Bangali Mal decision as not controlling the interpretation of the Sales Tax Act's revisional and appellate powers; the opinion does not purport to establish a novel principle outside those conclusions about statutory construction and the interaction of Sections 9, 10 and 21 of the Sales Tax Act.
Dayal, J.:— This is a special appeal against the order of a learned Judge allowing the respondent's petition under Art. 226 of the Constitution of India and issuing a writ of mandamus to the Sales Tax Officer, Kanpur, and the Commissioner of Sales Tax, Uttar Pradesh, not to proceed to assess the respondent to sales tax in respect of its turnover for the year 1948-1949 under Sec. 21 of the U.P Sales Tax Act.
2. The respondent, Jaipuria Brothers Ltd. stated in its writ petition that it was the sole selling agent of the Swadeshi Cotton Mills Co. Ltd., Kanpur, the manufacturer, with effect from 5th of October, 1946; that it sold cloth and yarn for and on behalf of the said manufacturer; that it held a license under Sec. 6 of the U.P Sales Tax Act, 1948 (hereinafter called the Act); and that considering itself to be an agent and not a dealer within the definition of that term in Cl. (c) of Sec. 2 of the. Act did not file any return for the assessment year 1948-1949 under the Act. The Sales Tax Officer, Kanpur, issued a notice to the respondent under Sec. 21 of the Act on the 20th of March, 1952, and inspite of the protest of the respondent that it was not a dealer, assessed the respondent to sales tax on the 31st March, 1952. The assessment was based on the estimated turnover of the respondent's business which had escaped assessment for the assessment year 1948-1949. The respondent appealed against that assessment order to me Judge (Appeals) Sales Tax, Kanpur. The appeal was allowed and the assessment order was annulled. Against this order of the Judge (Appeals) Sales Tax Kanpur, the Commissioner Sales Tax, U.P filed a revision before the Judge (Revisions) Sales Tax, U.P By order dated 28th of March, 1955, the Judge (Revisions) Sales Tax allowed the revision application, set aside the assessment order of the Judge (Appeals) Sales Tax and remanded the case for fresh assessment after proper scrutiny of the account books in the light of the observations made in his order.
3. In pursuance of this order of the Judge (Revisions) Sales Tax the Sales Tax Officer issued a notice on the 10th of June, 1955, to the respondent calling upon him to appear before the Sales Tax Officer with his complete accounts books, statements and other relevant documents for verification for the purposes of re-assessment for the year 1948-1949. The respondent objected to the fresh proceedings for re-assessment on the ground that any fresh assessment was barred in view of the limitation prescribed in Sec. 21 of the Act. The Sales Tax Officer overruled the objection by his order dated 2nd September, 1955; Thereafter the respondent filed the writ petition.
4. The learned Judge held that the Sales Tax Officer had no jurisdiction to make an assessment in 1955 on the turnover of the respondent's business which escaped assessment to the tax in the year 1948-1949, as such assessment is to be made within a period of three years next succeeding that to which the tax related; that period ending on the 31st of March, 1952. He repelled the contention for the State that the assessment to be made in the present case was not an assessment on any escaped tum-over. He also repelled the contention that Sec. 21 of the Act did not include cases received by the Sales Tax Officer for making assessment on escaped turnover on remand from the Judge (Revisions). He accordingly, by his order dated 4th November, 1955, allowed the petition and issued a mandamus to the Sales Tax Officer and the Commissioner not to proceed with the assessment under Sec. 21 of the Act against the respondent.
5. The relevant portion of Sec. 21 of the Act, as it stood in March, 1952, is:—
“If for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to the tax,……the assessing authority may, at any time within a period of three years next succeeding that to which the tax… relates, assess the tax payable on the turnover which has escaped assessment…….after issuing a notice to the dealer and after making such inquiry as he considers necessary.”
6. This Section was amended in 1954. The amendment did not, however, make any significant difference to the above quoted relevant portion of the previous section.
7. On the 28th of May, 1956, the Uttar Pradesh Sales Tax (Amendment) Act XIX of 1956 was published in the Uttar Pradesh Gazette Extraordinary. It had received the assent of the President on May 26, 1956. Sec. 15 of this amendment Act is:—
“For Sec. 21 of the Principal Act the following shall be and be always deemed to have been substituted:—
“21.(1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year, the assessing authority may, after issuing notice to the dealer and making such enquiry as may be necessary, assess or re-assess him to tax:
Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment, or full assessment, as the case may be.
Explanation — Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment.
(2) No order of assessment under sub-Sec. (1) or under any other provision of this Act shall be made for any assessment year after the expiry of four years from the end of such year:
Provided that where the notice under sub-Sec. (1) has been served within such four years the assessment or re-assessment to be made in pursuance of such notice may be made within one year of the date of the service of the notice even if the period of four years is thereby exceeded:
Provided further that nothing contained in this section limiting the time within which any assessment or re-assessment may be made shall apply to an assessment or re-assessment made in consequence of, or to give effect to, any finding or direction contained in an order under Secs. 9, 10 or 11.
Explanation — Where the assessment proceedings relating to any dealer remained stayed under the orders of any Civil or other competent Court, the period during which the proceedings remained so stayed shall be excluded in computing the period of limitation for assessment provided under this sub-section.”
8. The learned standing counsel relying on Sec. 21 of the Act after the aforesaid amendment submitted that in view of proviso 2 to sub-Sec. (2) of this Section the limitation of time for making an assessment or re-assessment does not apply to the assessment or re-assessment made in consequence of the directions contained in the order of Judge (Revisions), and that therefore even if the order in appeal correctly interpreted the provisions of the old Sec. 21 of the Act, the order is to be quashed, when in view of the amended Section the Sales Tax Officer can lawfully proceed with the assessment of the turnover which escaped assessment. It is contended for the respondent that this provision of the amended Sec, 21 of the Act does not help the appellant as it does not validate the order of the Judge (Revisions) dated the 28th of March, 1955, that order being a null and void order, as the Judge (Revisions) had no jurisdiction to pass an order directing the Sales Tax Officer to do what he could not do in view of the provisions of the then Sec. 21 of the Act. Reliance was placed on the cases of Commissioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdas,1 Commissioner Of Income-Tax, Bombay…(Referor); v. Edulji F.E Dinshaw…Assessee.* 1943 I.T.R 340. and Commissioner of Income-tax, Bombay v. Mangaldas Motilal & Co. 1944 I.T.R 89.. It was further contended for the respondent that in view of the amended Sec. 21 of the Act the Judge (Revisions) can be deemed to have had the power to pass an order of the kind that he did on the 28th of March, 1955, but as he however did not pass that particular order in the exercise of the power conferred on him by the second proviso to sub-Sec. (2) of the amended Sec. 21 of the Act, that order continues to be had and reliance is placed on the case of Firm Bangali Mal Satish Chandra Jain v. The Sales Tax Officer, Agra 1958 A.L.J 228.. In reply the learned standing counsel submits that the order of the Judge (Revisions) dated the 28th March, 1955, was not a wrong order under the old Sec. 21 of the Act, that it would not become a wrong order merely because it could not be enforced or supplemented. It is submitted that the Judge (Revisions) did not suffer from any inherent lack of jurisdiction to pass that order.
9. We are of opinion that this appeal should be allowed. It is not disputed that the Sales Tax Officer could have assessed tax on the turnover of the respondent's business which escaped assessment to the sales tax in 1948-1949 upto 31st March, 1952. The Sales Tax Officer did make such an assessment on the 31st March, 1952. An appeal against that assessment order lay to the Judge (Appeals) under Sec. 9 of the Act. Sub-Sec. 3 of Sec. 9 lays down the powers of the appellate authority for disposing of the appeal. This sub-section is:—
“The appellate authority may, after giving the appellant a reasonable opportunity of being heard
(a) confirm, reduce, enhance or annul the assessment, or
(b) set aside the assessment and direct the assessing authority to pass a fresh order after such further inquiry as may be directed, or
(c)…………….”
10. Sub-Sec. 4 of Sec. 9 is: “Every order passed in appeal under this section shall subject to the powers of revision conferred by Sec. 10 and of any reference made to High Court under Sec. 11 be final.”
11. It is clear from these provisions that the Judge (Appeals), the appellate authority, could after setting aside the assessment, direct the assessing authority to pass a fresh order after such further enquiry as he might direct. Such a direction for fresh assessment is to be made only when the appeal is disposed of. There is no limit fixed for the disposal of the appeal. When the Sales Tax Officer is competent to make the assessment on the last date of limitation according to the provisions of Sec. 21, it is obvious that the order of the appellate authority would be made beyond that period of three years; and that if the provisions of Sec. 21 be interpreted as the learned Judge has interpreted them, then this power of the appellate authority will be of no effect in such cases in which the appeal itself could not be disposed of within the limited period prescribed by Sec. 21. The provisions of the various enactments in the same Act should as far as possible be so interpreted that none becomes ineffective, or inconsistent with the other provisions. To reconcile the provisions of sub-Sec. 3 of Sec. 9 and of the old Sec. 21 of the Act, the provisions of Sec. 21 would be so construed that any assessment of the turnover which had escaped assessment, in pursuance of the directions of the appellate authority be held not to be subject to the period of limitation within which the fresh assessment is to be made. The limitation of time is with respect to the assessment by the Sales Tax Officer in the first instance on the turnover which has escaped assessment and is not on any re-assessment or fresh assessment under the directions of the appellate authority.
12. Sub-Sec. (3) of Sec. 10 of the Act, as it stood in 1955, was: “The Revising Authority may in his discretion at any time suo motu or on the application of the Commissioner of Sales Tax or the person aggrieved, call for and examine the record of any order made by any Appellate or Assessing Authority under this Act, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order as he thinks fit: Provided that no such application shall be entertained in any case where an appeal lay against the order, but was not preferred.”
13. The Judge (Revisions), the Rivising Authority, could therefore on the revision of the Commissioner, Sale Tax, pass any order which he thought fit. His power is not restricted in any way, and therefore is at least as wide, if not more, than the power of the appellate authority. He can therefore pass an order setting aside the assessment made by the Tax Officer under old Sec. 21 of the Act and direct the Assessing Authority to pass a fresh order after such further enquiry as may be directed. The order of the Judge (Revisions) of the 28th March, 1955, did not go beyond this. By this order the Judge (Revisions) set aside the assessment order and remanded the case for fresh assessment after proper scrutiny of the account books in the light of the observations made by him. We are therefore of opinion that the order of the Judge (Revisions) was an order within his jurisdiction. It was a good order and that in view of the interpretation we have placed on old Sec. 21, of the Act, the Sales Tax Officer was competent to proceed with a fresh assessment on such turnover of the respondent as had escaped assesment in 1948-1949. The position is absolutely clear in view of the new Sec. 21 of the Act after the amendment of 1956. The order of Judge (Revisions) was a good order and the Sales Tax Officer is competent to conduct the proceedings of fresh assessment in pursuance of that order.
14. We do not agree with the contention for the respondent that the order dated 28th March 1955 by the Judge (Revisions) was an order passed beyond his jurisdiction and was therefore null and void. That order required no validation. The second proviso to Sub-Sec. (2) of new Sec. 21 of the Act confers no fresh powers on the Judge (Revisions). It only provided that the provisions about the time within which the Sales Tax Officer is to assess the turnover which had escaped assessment does not apply to an assessment made on such turnover under the directions of the appellate or revisional authority; and therefore there is no question of the Judge (Revisions) not exercising the power which he newly acquired under the amended Sec. 21 of the Act.
15. The cases relied upon by the learned counsel for the respondent are distinguishable. In 1938 P.C 175, the Income Tax Officer made an assessment to the best of his judgment under Sec. 23(4) of the Income Tax Act, 1922, and did not assess the super tax in view of the registration of the firm. The assessee paid the amount of taxes levied. Subsequently the Commissioner of Income Tax exercising his powers under Sec. 33 of the Income Tax Act revised the order of, the Income Tax Officer regarding the registration of the assessee firm, ordered its cancellation, and directed the Income Tax Officer to take further necessary action. In pursuance of this order the Income Tax Officer issued another order assessing super tax on that firm and served a notice of demand. This order was issued more than one year after the close of the fiscal year ending on 31st March, 1927, and more than one year after the date of the earlier demand of the income-tax. The assessee appealed to the Assistant Commissioner of Income Tax and challenged the power of the Income Tax Officer to make that order. The appeal was dismissed. The assessee then applied to the Commissioner requesting him to exercise his powers under Sec. 33 of the Income Tax Act or, in the alternative, to refer the matter to the High Court under the provisions of Sec. 66(2) of the Income Tax Act. The High Court held that the Income Tax Officer had no power to make that order in view of the provisions of Secs. 34 and 35 of the Income Tax Act. Their Lordships of the Privy Council agreed with that view and said at page 179: “But when once a final assessment is arrived at, it cannot, in their Lordships' opinion be reopened except in the circumstances detailed in Secs. 34 and 35 of the Act (to which reference is made hereafter) and within the time limited by those Sections……………………. The Commissioner's powers under Sec. 33 can only be exercised subject to the provisions of the Act, of which the provisions in Secs. 34 and 35 are in this respect of the greatest importance.” According to Sec. 34 of the Income Tax Act, an Income Tax Officer can issue a notice for assessment of tax on income, profits or gains, which has escaped assessment within one year of the end of the assessment year, and then to proceed to assess or re-assess such income, profits or gains. Sec. 35 of the Income Tax Act empowers the Income Tax Officer to rectify any mistake apparent from the record of the assessment within one year from the date of any demand made upon the assessee. Their Lordships observed at page 180:
“In view of these express provisions of the Act, it is in their Lordships' opinion quite impossible to suppose that the Income-tax Officer may in every kind of circumstance and after any lapse of time-make fresh assessments or issue fresh notices of demand; or that the Commissioner can direct him so to do. In their Lordships' opinion, the provisions of the two sections are exhaustive, and prescribe the only circumstances in which and the only time in which such fresh assessments can be made and fresh notices of demand can be issued.” These observations can have no effect on the interpretation of the powers of Judge (Revisions) under Sec. 10 of the Sales Tax Act.
16. Sub-Sec. 3 of Sec. 10 of the Sales Tax Act does not provide that the Judge (Revisions) or the revisional authority can, subject to the provisions of the Sales Tax Act, pass such orders as he thinks fit. The orders are not subject to the provisions of the Act. There is a substantial difference between the powers of the Commissioner of Income-tax under Sec. 33 of the Income-tax Act and the powers of the revisional authority under Sec. 10 of the Sales Tax Act. We have, however, held already that taking into consideration the provisions of sub-Sec. (3) of Sec. 9 of the Act with respect to the powers of the appellate authority, the powers of the revisional authority includes the powers to set aside an assessment and direct a fresh assessment, and that order of the Judge (Revisions) dated 28th of March, 1955, in no way contravenes the provisions of the Sales Tax Act.
17. The case reported in the Income Tax Law Reports simply followed the Privy Council case in cases arising out of the orders of the Income-tax Act.
18. The case reported in 1958 A.L.J 2284 simply held that any notification which was issued by the Governor under certain provisions of the Sales Tax Act and which was declared invalid by the Court required validation and was not validated by merely an amendment of the provisions of the Act to the effect that the Governor did have a power to issue a similar notification on the date of the notification which had been held void, had been made; because in issuing that notification the Governor had not exercised the power which he neither possessed in fact on the date of issuing the notification but was deemed to possess that power that day on account of the subsequent amendment under the Act.
19. In view of the above, we are of opinion, with respect to the learned Judge, that the order under appeal is wrong, and should be set aside. We accordingly allow the appeal, set aside the order of the learned Judge and dismiss the petition of the respondent. In the circumstances of the case we make no order as to costs.
20. Appeal allowed.
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