P. Venkatrama Reddy, J.:— In this writ petition, the petitioner is questioning the notice dated August 11, 1990, issued by the Commissioner of Commercial Taxes under section 20(1) of the Andhra Pradesh General Sales Tax Act, 1957, proposing to revise the order of the Deputy Commissioner of Commercial Taxes dated October 7, 1986, with a view to levy surcharge under section 6-B and additional tax under section S-A in respect of the turnover falling within the purview of section 5-B of the Act. Normally we would not have entertained a writ petition when the revisional authority has not taken a final decision after considering the objections of the petitioner. However, as some of the contentions raised go to the root of the jurisdiction of the Commissioner to revise, we have thought it fit to adjudicate the matter in the interests of both parties rather than prolonging the litigation.

2. The facts giving rise to this writ petition are as follows: The first assessment under the A.P General Sales Tax Act for the year 1982–83 was made on March 31, 1984, by the Commercial Tax Officer. He subjected the turnover of Rs. 22,47,212 to tax at different rates. As regards the turnover of Rs. 21,14,414 falling under section 5-B, he applied the concessional rate of 4 per cent. No surcharge and additional tax was levied thereon as the assessing authority obviously felt that the total tax liability of the assessee under section 5-B should be computed at the rate of 4 per cent only. This assessment was reopened by the successor assessing authority under section 14(4) and a revised assessment order was passed levying and demanding an amount of Rs. 8,458 towards surcharge. Against this reassessment order dated September 11, 1985, the petitioner preferred an appeal. The appellate authority by order dated January 16, 1987, allowed the appeal following a decision of the Sales Tax Appellate Tribunal holding that no surcharge apart from 4 per cent could be levied in respect of the turnover falling within the ambit of section 5-B.

3. As the matters stood thus, the Deputy Commissioner proposed to exercise revisional powers under section 20(2) of the Act whereby he wanted to set aside the original assessment order dated March 31, 1984, passed by the Commercial Tax Officer so as to add surcharge to the tax otherwise payable. A show cause notice to this effect was issued by the Deputy Commissioner dated May 14, 1986. The petitioner filed objections stating, inter alia, that the original assessment order was no longer in existence in view of the reassessment order passed subsequently and, therefore, the revision was unwarranted. The assessee also contested the liability to pay the surcharge. The Deputy Commissioner, Secunderabad, by his order dated October 7, 1986, did not accept the first contention of the petitioner and he observed that there was no revised assessment order levying surcharge, which is factually an incorrect observation. However, with regard to the merits, the Deputy Commissioner accepted the contention of the petitioner and held that no surcharge is leviable in view of the decision of the Tribunal. The Deputy Commissioner, therefore, dropped the proposed revision. The Commissioner of Commercial Taxes issued a revision notice dated January 15, 1989 under section 20(1) of the Act proposing to set aside the order of the Deputy Commissioner dated October 7, 1986 and to modify the original assessment order dated March 31, 1984 subjecting the turnover of Rs. 21,14,414 to surcharge at 10 per cent of the tax due. The Commissioner stated in the said notice that the order of the Sales Tax Appellate Tribunal relied upon by the Deputy Commissioner has not been accepted by the department and a tax revision case has been filed in this Court by the State. No further action has been taken thereon till August 11, 1990, on which date the Commissioner issued a “revised show cause notice” whereunder the Commissioner proposed to revise the order of the Deputy Commissioner dated October 7, 1986 and to levy additional tax and surcharge under section S-A and section 6-B, respectively, on the turnover of Rs. 21,14,414. Thus, by this revised notice, the Commissioner proposed to levy additional tax under section S-A in addition to levy of surcharge already proposed by his predecessor. In this revised notice, the Commissioner has relied upon the judgment of this Court in India Fruits Private Ltd. v. Commercial Tax Officer, [1988] 68 STC 114. It is this notice issued by the Commissioner that has been challenged in this writ petition.

4. The first contention raised by the learned counsel for the petitioner is that by virtue of the embargo placed by section 20(2-A) of the Act, the Commissioner has no jurisdiction to initiate the revision proceedings. We are of the view that this contention is not tenable. Section 20(2-A) enjoins that the power of revision “shall not be exercised in respect of any issue or question which is the subject-matter of an appeal before or which was decided on appeal by the Appellate Tribunal under section 21”. The bar enacted by sub-section (2-A) of section 20 on the revisional powers exercisable by the Commissioner or Deputy Commissioner does not apply to the instant case because the Appellate Tribunal has not decided any issue or question in an appeal relating to the petitioner much less the same assessment. In Minerals and Metals Trading Corporation of India Limited v. Deputy Commissioner, Commercial Taxes, [1978] 42 STC 372, a Division Bench of this Court consisting of Divan, C.J and Chennakesav Reddy, J., negatived the contention that section 20(2-A) bars revision in a case where the same issue had been decided in favour of the assessee by the Tribunal in an appeal relating to an earlier assessment year. The learned Judges observed:

“…………section 20(2-A) of the Andhra Pradesh General Sales Tax Act cannot be so read as to bring in the concept of res judicata. The fact that, in appeal, any particular issue or question is either pending decision of the Tribunal or has already been decided by the Tribunal cannot operate as res judicata for other assessment years and cannot prevent the exercise of revisional powers by the Deputy Commissioner except in relation to the particular assessment year in respect of which an appeal is pending before the Sales Tax Appellate Tribunal or in respect of which the question or issue has been decided by the Tribunal. It should be borne in mind that, if the sales tax authorities are aggrieved by the issue or question decided by the Sales Tax Appellate Tribunal either in the appeal, which was pending at the time or in a particular appeal which has already been decided, they can always approach the High Court on a reference so that the matter can be ultimately decided or they can come to the High Court in the exercise of the revisional powers. Under these circumstances, this contention based on section 20(2-A) cannot help the petitioner.”

5. The above decision of the Division Bench rests on the principle that each assessment year is a separate unit and the plea of res judicata cannot be applied in tax matters in relation to a different period of assessment We are in agreement with the view expressed by the learned Judges in the above case. The idea underlying section 20(2-A) is to give finality and primacy to the decision of the Tribunal vis-a-vis an issue or question decided by the Tribunal in a lis between the same parties in respect of a particular period of assessment, subject, of course, to the result of a revision to the High Court. To construe it otherwise would lead to anomalous consequences. For instance, if the Appellate Tribunal has decided a particular issue or question in any case, it would for all the time to come, fetter the hands of the revisional authority from revising the order of the subordinate authority notwithstanding the fact that the High Court or Supreme Court had taken a contrary view subsequently. We have, therefore, no hesitation in rejecting the first contention of the petitioner.

6. The next contention raised by the learned counsel for the petitioner is that the Commissioner invoked revisional jurisdiction under section 20(1) on a misconception that the Deputy Commissioner could have lawfully revised the order of assessment dated March 31, 1984. The learned counsel points out that the dropping of the revision by the Deputy Commissioner was in no way illegal or improper. But, on the other hand, if the Deputy Commissioner had proceeded to revise the assessment order dated March 31, 1984, he would have acted without jurisdiction. What the Deputy Commissioner could not have lawfully done, the Commissioner by revising the order of the Deputy Commissioner cannot do. The learned counsel elaborates thus: By the time the revision proceedings were initiated by the Deputy Commissioner, the reassessment was already done by the Commercial Tax Officer by levying surcharge in addition to the tax on a part of the turnover. Thus when the surcharge had already been levied, the question of exercising revisional powers by another authority (may be higher authority) to levy the very same surcharge does not arise. Although this fact was pointed put to the Deputy Commissioner in reply to the revision notice issued by him, he overruled the said objection under a mistaken impression that no such reassessment was made. However, he dropped the proposed revision on a different ground based upon the merits. Irrespective of the merits, the Deputy Commissioner could not have in any case revised the assessment so as to levy surcharge when the surcharge was in fact levied by then under a reassessment order dated September 11, 1985. The counsel further submits that the reassessment made by the Commercial Tax Officer having been set aside subsequently by the appellate authority, the Commissioner is incompetent to levy or direct the levy of surcharge merely by setting aside the revisional order of the Deputy Commissioner. We see force in this contention. In the face of the reassessment order passed by the Commercial tax Officer subjecting a part of the turnover to surcharge in addition to the tax already levied, it was unnecessary and in fact beyond the jurisdiction of the Deputy Commissioner to go back to the original assessment and adjudicate upon the legality or propriety of that assessment. The omission, if any, in the original assessment order to levy surcharge was filled up by the reassessment order which came into existence by the time the Deputy Commissioner took up the revision. The said reassessment order having been set aside on appeal by the appellate authority by his order dated January 16, 1987, the said order of the appellate authority holds the field as on today. Unless and until that order is disturbed by the revisional authority or otherwise, no surcharge can be demanded from the petitioner. The Commissioner has proceeded on an erroneous assumption that the revision of the order of the Deputy Commissioner would automatically pave the way for demand of surcharge under section 6-B. But in our view, this result does not follow in law. Firstly, the Deputy Commissioner could not have proceeded with the revision of original assessment order for the purpose of imposing surcharge when the surcharge was already levied by then by a reassessment order. Evidently, the Deputy Commissioner did not touch upon the revised assessment order at that time as he was under the mistaken impression that no reassessment was at all made in relation to surcharge. Secondly, the force and effect of the appellate order dated January 16, 1987 cannot be ignored by the Commissioner. In our view, so long as the order of the appellate authority stands, no demand for surcharge could be raised or directed to be raised. The desired effect of raising a demand for surcharge can only be brought about by revising the order of the appellate authority. But as the revision notice now stands, there is no such proposal. We, therefore, deem it fit to issue a writ prohibiting the Commissioner from proceeding with the levy of surcharge pursuant to the impugned notice. However, we leave it open to the Commissioner, if he so chooses to initiate fresh proceedings for the purpose of revising the order of the appellate authority dated January 16, 1987.

7. Then we come to the last question—as to the propriety of the proposed levy of additional tax under section S-A pursuant to the impugned revision. On this point, we are clearly of the view that the Commissioner has no jurisdiction to levy or give any direction for the levy of additional tax under section 5-A. The levy of additional tax was not at all proposed by the Deputy Commissioner in the revision notice issued to the assessee and no question of dropping the same arose for consideration. The illegality, if any, in not imposing additional tax attaches to the original assessment order. If at all, the assessment order had to be revised on the ground that there was failure on the part of the assessing authority to subject the turnover to additional tax under section S-A. But, for the obvious reason that the period of limitation prescribed for revising the said assessment order expired long back, the Commissioner has rightly not taken steps for revising the original assessment order. The Commissioner cannot exercise the powers of reassessment or revision in respect of the assessment made in the year 1983 at this distance of time. It is incomprehensible as to how the Commissioner could levy additional tax by revising the Deputy Commissioner's order dropping the proposed revision in respect of surcharge. Hence the proposal to levy additional tax under section 5-A is beyond the power and jurisdiction of the Commissioner and we declare so.

8. On the merits of the case, viz., whether surcharge is leviable in addition to 4 per cent rate of tax specified in section 5-B, we do not propose to express any opinion at this stage. If there are any further proceedings, it is certainly open to the petitioner to urge before the Commissioner or other authority that the decision of this Court in India Fruits' case, [1988] 68 STC 114, has no application. We, therefore, allow the writ petition and issue a writ of prohibition interdicting the respondent from proceeding further with the impugned revision notice. There will be no order as to costs. Advocate's fee Rs. 250.

9. Writ petition allowed.