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J.K Corp. Limited v. Sales Tax Officer, Koraput Ii Circle, Rayagada And Others

Orissa High Court

Aug 31, 1998

Judgment

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Factual and Procedural Background

All three writ petitions involved identical points of dispute and were heard together. Two petitions (O.J.C. Nos. 14993 and 14994 of 1997) challenged notices issued by the Commissioner of Sales Tax, Orissa under clause (a) of sub-section (4) of section 23 of the Orissa Sales Tax Act, 1947 read with rule 80 of the Orissa Sales Tax Rules, 1947. The notices purported to revise an order dated 11 September 1997 passed by the Additional Commissioner in Revision Case Nos. KO-497 and KO-498 of 1996–97 on the ground that the revisional order was allegedly erroneous and prejudicial to the interests of the Revenue.

The third petition (O.J.C. No. 2791 of 1998) alleged that the Additional Commissioner extended the time for compliance with his order (granting a refund voucher) from 30 September 1997 to 31 October 1997 without giving notice to the petitioner, and that this extension facilitated the Commissioner issuing the impugned notices on 7 October 1997.

The narrow legal question framed for decision was whether the Commissioner has jurisdiction to suo motu revise an order already passed in revision by the Additional Commissioner. Earlier decisions of this Court (notably Orient Paper Mills v. State of Orissa, [1988] 70 STC 333, and subsequent cases) had held that the Commissioner lacks power to revise an order already passed by the Additional Commissioner. The Commissioner relied on later apex court observations in State of Orissa v. Krishna Stores [1997] 104 STC 594 and related Supreme Court authority to invite reconsideration.

Legal Issues Presented

Whether the Commissioner of Sales Tax has jurisdiction under section 23(4)(a) read with rule 80 of the Orissa Sales Tax Rules to suo motu revise an order already passed in revision by the Additional Commissioner (to whom the Commissioner had delegated his revision powers under rule 79).
In O.J.C. No. 2791 of 1998: whether the Additional Commissioner’s extension of time for compliance with his order without giving the petitioner an opportunity was procedurally correct and whether that extension had the effect of enabling the Commissioner’s challenge; alternatively, what relief should follow if the extension was improperly granted.

Arguments of the Parties

Revenue's Arguments

The learned counsel for the Revenue relied on the decision in Orient Paper Mills' case ([1988] 70 STC 333) in support of the Commissioner's view (though the Court records that the cited decision in fact supports the opposite proposition).
The Revenue submitted that a fresh look at the matter was necessary because of certain observations by the Supreme Court in State of Orissa v. Krishna Stores ([1997] 104 STC 594) and related apex court authority (Commissioner of Sales Tax v. Halari Store [1997] 107 STC 579), suggesting that the Commissioner may have suo motu revisional power in some contexts.
The Revenue argued that delegation does not denude the delegator of power and that the Commissioner, as delegator, still retained the original power to act; hence the Commissioner could exercise revisional power notwithstanding delegation.
The Revenue contended there had been no delegation of suo motu revisional power to the Additional Commissioner (an argument addressed by the Court with reference to the actual delegation notification and rules).

Petitioners' Arguments

The learned counsel for the petitioners submitted that the apex court decisions relied upon by the Revenue (Krishna Stores and Halari Store) were distinguishable because they concerned the Commissioner’s power to suo motu revise appellate orders passed by an Assistant Commissioner, not revisions of orders passed by an Additional Commissioner in exercise of delegated power under rule 79.
The petitioner argued that the delegation notification (dated 18 May 1963) expressly delegated to the Additional Commissioner the powers exercisable by the Commissioner under clause (a) of sub-section (4) of section 23 and rule 79; consequently, the Additional Commissioner’s revisional order was made in exercise of delegated authority and had the legal consequences described by section 23.
In the matter of the time-extension (O.J.C. No. 2791/1998), the petitioner submitted that the Additional Commissioner should have granted an opportunity before extending the time, and that the extension had permitted the Commissioner to issue the impugned notices.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Orient Paper Mills v. State of Orissa, [1988] 70 STC 333 (Orissa)	Held that the Commissioner has no power to revise an order passed by the Additional Commissioner (where the power of revision had been delegated).	The Court relied on and reaffirmed this decision as correctly deciding that the Commissioner cannot suo motu revise an order that, by legal delegation, had been passed by the Additional Commissioner; this authority governs the present disputes and requires no departure.
O.J.C. No. 3562 of 1986 (disposed 6 Nov 1991)	Referenced as one of several cases reiterating the same view (that Commissioner lacks power to revise orders passed by Additional Commissioner).	Noted by the Court as part of the consistent line of authority supporting the proposition that the Commissioner cannot revise delegated revisional orders.
Food Corporation of India v. Sales Tax Officer, [1990] 78 STC 58 (Orissa)	Assessee-challenged view of the Commissioner; authorities discussed issue of Commissioner’s jurisdiction to revise orders passed by Additional Commissioner.	Referenced as another decision upholding the proposition that the Commissioner has no jurisdiction to revise orders passed by the Additional Commissioner.
State of Orissa v. Krishna Stores, [1997] 104 STC 594 (SC)	Apex Court observations concerning the Commissioner’s suo motu power to revise appellate orders passed by an Assistant Commissioner.	The Court considered the apex court’s observations but held them distinguishable because they dealt with revision of orders passed by an Assistant Commissioner, not with revision of orders already passed by an Additional Commissioner in exercise of delegated power.
Commissioner of Sales Tax v. Halari Store, [1997] 107 STC 579 (SC)	Observation that "any order made under the Act" is of wide connotation and includes assessment and appellate orders (relevance to scope of revision).	The Court held this authority did not apply to the present situation because it concerned a different category of subordinate authority (Assistant Commissioner) and did not justify a suo motu second revision after a delegated revisional order had attained finality under section 23(4).
Ashwin Industries v. Deputy Commissioner of Sales Tax, Baroda, [1982] 50 STC 322 (Gujarat HC)	Held that where suo motu revision power was delegated to Additional/Deputy Commissioner, their revisional orders could not be further revised by the Commissioner.	Quoted in Orient Paper Mills and relied upon by this Court for the proposition that delegated suo motu revision, once exercised, precludes a further suo motu revision by the Commissioner.
Huth v. Clarke, (1890) 25 Q.B.D. 391	General common-law principle: delegation does not necessarily imply giving up authority; delegator retains ultimate authority and power of resumption.	Quoted by the Court to explain the general legal meaning of "delegation" and that delegation ordinarily does not denude the delegator — but the Court then explained why that general principle did not permit the Commissioner to exercise rule 80 after a delegated revisional order had become final under section 23.
Roop Chand v. State of Punjab, AIR 1963 SC 1503	Reference to Huth's case and discussion of delegation principles by the Supreme Court.	Used to support the Court's exposition of the general rule that delegation does not ipso facto remove power from the delegator; the Court applied the general principle but distinguished its effect in the present statutory context.
Battelley v. Finsbury Borough Council, (1958) 56 LCR 165	Principle that the delegating body retains power to revoke the grant of delegation and may act concurrently except where bound by acts of the delegate.	Used as an illustration of the ordinary legal position on delegation; the Court cited it while explaining the general legal backdrop to the delegation issue before applying the statute-specific conclusions.

Court's Reasoning and Analysis

The Court proceeded in a structured fashion:

The Court identified the narrow legal question: whether the Commissioner could, under rule 80 (suo motu revision), revise an order already passed in revision by the Additional Commissioner under a delegation of powers (notification dated 18 May 1963 delegating powers under section 23(4)(a) and rule 79).
The notification was set out and the Court observed that the power of revision available to the Commissioner under section 23(4)(a) read with rule 79 had been expressly delegated to the Additional Commissioner.
The Court reviewed the statutory scheme: text of section 23(4) (including clauses (a), (c) and (cc) and proviso (d)) and rules 79 and 80 were reproduced. The Court emphasized:
- Rule 79 provides for applications to the Commissioner for revision (on application by a dealer),
- Rule 80 provides for the Commissioner to call for records and suo motu revise within specified time-limits (three years for Sales Tax Officer orders; two years for Additional Commissioner orders), and
- Section 23(4)(cc) attaches finality to orders passed under the subsection subject to any appeal.
The Court acknowledged the general legal doctrine that a delegator ordinarily retains power and is not denuded by delegation (citing Huth v. Clarke, Roop Chand, Battelley, and textual authorities such as Corpus Juris Secundum and Black's Law Dictionary). However, the Court then analysed the specific statutory context and held that the general doctrine did not permit the Commissioner to exercise rule 80 so as to effect a second revisional proceeding after the delegate (Additional Commissioner) had disposed of the matter in revision.
The Court found that rule 80 (suo motu revision by the Commissioner) was not equivalent to the power exercised by the Additional Commissioner under rule 79 (which relates to revision on application). The Commissioner had not initiated a fresh proceeding in the manner of rule 79 (he had not commenced a hearing afresh under the delegated procedure). Instead, by issuing notices under rule 80 after the Additional Commissioner had disposed of the revision, the Commissioner effectively sought a second revision in relation to an order that had attained finality under section 23(4)(cc).
The Court reasoned that the statutory scheme did not contemplate a second revision after a delegated revisional order had been passed and made final by the operation of section 23(4). Reliance was placed on the reasoning in Orient Paper Mills and on analogous holdings (e.g., Ashwin Industries) that where suo motu revision has been delegated and exercised, the delegator cannot further revise those orders.
On that basis, the Court concluded that the notices issued by the Commissioner under rule 80 in the two writ petitions were without jurisdiction and could not be sustained.
As to O.J.C. No. 2791 of 1998 (the time-extension point), the Court observed that while there was substance in the petitioner’s contention that an opportunity should have been given before extending time, it was unnecessary to delve deeply into the motive for the extension because the notices issued by the Commissioner were in any event without jurisdiction. The Court therefore directed the Sales Tax Officer to comply with the Additional Commissioner’s direction for grant of refund within three weeks.

Holding and Implications

CORE HOLDING: PETITIONS ALLOWED; THE IMPUGNED NOTICES ISSUED BY THE COMMISSIONER UNDER RULE 80 ARE QUASHED.

Implications and direct consequences:

The Court held that once the Additional Commissioner (to whom the Commissioner had delegated revision powers under section 23(4)(a) read with rule 79) exercised those delegated powers and passed a revisional order, the Commissioner could not thereafter validly invoke rule 80 to suo motu revise that same order — such an act would amount to a second revision that the statutory scheme does not contemplate.
Accordingly, the notices issued by the Commissioner in O.J.C. Nos. 14993 and 14994 of 1997 were quashed and those petitions were allowed.
In O.J.C. No. 2791 of 1998 the Court directed compliance by the Sales Tax Officer with the Additional Commissioner’s direction for grant of refund within three weeks; that petition was disposed of. The Court did not make any order as to costs.
The Court reaffirmed the prior view expressed in Orient Paper Mills ([1988] 70 STC 333) and related authorities; it found no reason to depart from that line of authority in the circumstances before it.

The opinion does not state that it has created a novel precedent; rather it reaffirms and follows the existing line of authority on the subject.

Show all summary ...

A. Pasayat, J.:— All the three cases involve identical points of dispute and are therefore disposed of by this common judgment. Challenge in O.J.C Nos. 14993 and 14994 of 1997 is to the legality of notices issued by the Commissioner of Sales Tax, Orissa (hereinafter referred to as “the Commissioner”) in purported exercise of powers under section 23(4)(a) of the Orissa Sales Tax Act, 1947 (in short, “the Act”) read with rule 80 of the Orissa Sales Tax Rules, 1947 (in short, “the Rules”) proposing to revise the order dated September 11, 1997 passed by the Additional Commissioner of Sales Tax, Southern Zone, Berhampur (in short, “the Additional Commissioner”) in Revision Case Nos. KO-497 and KO-498 of 1996–97. Basis of such notices is the view of the Commissioner that the revisional order is erroneous in so far as it is prejudicial to the interest of Revenue.

2. The factual aspects need not be dealt with in detail, as the only point that requires adjudication is whether the Commissioner has jurisdiction to suo motu revise an order passed by the Additional Commissioner. This question has been adjudicated about a decade back by a division Bench of this Court in Orient Paper Mills v. State of Orissa, [1988] 70 STC 333. It was held that the Commissioner has no power to revise the order passed by the Additional Commissioner or the Special Additional Commissioner as the case may be. This view has been reiterated in several other cases, one of them being O.J.C No. 3562 of 1986 disposed of on November 6, 1991. In Food Corporation of India v. Sales Tax Officer, [1990] 78 STC 58 (Orissa), the assessee-concem had challenged the view of the Commissioner, who held that he has no jurisdiction to revise the order passed by the Additional Commissioner.

3. The learned counsel for the Revenue relied on the decision in Orient Paper Mills' case, [1988] 70 STC 333 (Orissa) in that case to support the view of the Commissioner. Following the decision in Orient Paper Mills' case, [1988] 70 STC 333 (Orissa), it was held that the Commissioner has no jurisdiction to revise the order passed by the Additional Commissioner. Therefore, it is clear that for about a decade, the accepted position in law is that the Commissioner cannot revise an order passed by the Additional Commissioner. However, the learned Senior Standing Counsel for the Revenue submitted that a fresh look in the matter is necessary because of certain observations by the apex Court in State of Orissa v. Krishna Stores, [1997] 104 STC 594. It is also submitted that in the earlier cases the settled position in law that the delegator still retains the original power conferred on him was not considered. It is further stated that there has been no delegation of suo motu revisional power on the Additional Commissioner.

4. Learned counsel for the petitioner submitted that the decision in Krishna Stores' case, [1997] 104 STC 594 (SC) has no relevance because the point involved related to the question whether the Commissioner of Sales Tax suo motu can revise under clause (a) of sub-section (4) of section 23 of the Act read with rule 80 an appellate order passed by the Assistant Commissioner of Sales Tax. The apex Court decided that such power was available. In Commissioner of Sales Tax v. Halari Store, [1997] 107 STC 579 (SC), it was observed that the expression “any order made under the Act” is of wide connotation and includes both assessment and appellate orders. Coming to the question whether the said decisions have any relevance so far as the present case is concerned, it has to be noted that the aforesaid decisions have been rendered on an entirely different question and related to the jurisdiction of Commissioner to suo motu revise the appellate order passed by the Assistant Commissioner. The decisions, therefore, have no application to the present dispute.

5. Main plank of learned counsel for Revenue's argument to distinguish Orient Paper Mills' case, [1988] 70 STC 333 (Orissa), is that the power under rule 80 has not been delegated, and in any event the delegator still retains the original power.

6. With reference to the notification delegating power, it is stated by the learned counsel for the petitioner that section 23(4)(a) deals with both suo motu power of revision and also the power to revise any order made under the Act or Rules made thereunder by any person other than the Tribunal appointed under sub-section (3) of section 3 to assist the Commissioner upon an application by a dealer or person. Therefore, power of revision as available under section 23(4)(a) has been delegated. The notification reads as follows:

“Office of the Commissioner of Commercial Taxes, Orissa.

Dated, Cuttack, the 18th May, 1963.

No. 12358-CT. In exercise of the powers conferred by section 17 read with clause (d) of sub-section (4) of section 23 of the Orissa Sales Tax Act, 1947, (Orissa Act 14 of 1947), I, S.M.H Burney, I.A.S, Commissioner of Sales Tax, Orissa, with the prior approval of the State Government do hereby delegate the powers exercisable by me under clause (a) of sub-section (4) of section 23 of the said Act and rule 79 of the Orissa Sales Tax Rules, 1947, to the Additional Commissioner of Sales Tax and direct that the powers and duties under the said provisions shall be exercised and discharged by him.

Sd. S.M.H Burney,

Commissioner of Sales Tax, Orissa.”

7. It is to be noted that rule 79 deals with application to the Commissioner for revision. Undisputedly the power of revision available to the Commissioner under section 23(4)(a) read with rule 79 has been delegated. Commissioner by the impugned notices purported to exercise power under rule 80. The question is whether he can do it after the revisional order is passed by the Additional Commissioner as delegated by the Commissioner on an application filed by any person or dealer. This Court in all the three cases referred to in paragraph 2 above has held that it cannot be done. In Orient Paper Mills' case, [1988] 70 STC 333 this Court observed as follows:

“It is not difficult to consider the first aspect in view of the delegation of power by the Commissioner in favour of the Special Additional Commissioner under Notification No. 5118 dated 10th February, 1971 by which the Special Additional Commissioner exercised the power of revision of the Commissioner under section 23(4)(a) and (d) of the Act. So the orders dated 24th May, 1978 passed by the Special Additional Commissioner in annexure 6 series were in fact deemed to be orders passed by the Commissioner himself in exercise of power of revision. Therefore, in purported exercise of power under rule 80, the Commissioner could not revise the orders which by legal fiction were deemed to have been passed by himself. As a concept of law, it is unthinkable that a quasi-judicial authority having delegated his quasi-judicial function to a subordinate or co-ordinate authority shall again revise the order passed by that authority. An identical question arose for consideration before the Gujarat High Court in a case reported in [1982] 50 STC 322 : 1981 Tax LR 2965, (Ashwin Industries v. Deputy Commissioner of Sales Tax, Baroda). According to section 67(1) of the Gujarat Sales Tax Act, the Commissioner has power of revision of any order passed by any officer appointed to assist him on his own motion. According to section 27(2) of the aforesaid Act, Deputy Commissioners, Assistant Commissioners and Sales Tax Officers were appointed to assist the Commissioner. According to subsection (5) thereof, the Commissioner is authorised to delegate powers in favour of a Deputy Commissioner and after such delegation the Deputy Commissioner is authorised to perform all functions of the Commissioner delegated to him. According to sub-section (7) thereof, the State Government can delegate functions of the Commissioner to Additional Commissioners. In view of the aforesaid provisions, it was held that suo motu power of revision delegated to the Additional Commissioner or the Deputy Commissioner can be exercised by them and their orders passed in revision cannot further be revised by the Commissioner. The second aspect does not also present any difficulty. As would appear from section 29(2)(s)(ii), framing of rules is permissible according to law to lay down the procedure for appeals and revisions. In the guise of framing rules substantive law giving a fresh quasi-judicial power of revision unconnected with procedure could not be introduced to the Rules. Rule 80 is a substantive quasi-judicial power given to the Commissioner to be exercised in general on his own motion to correct errors prejudicial to the interest of the Revenue. Such a general, substantive and all pervasive quasi-judicial function could be contemplated in the statute but not under the Rules framed thereunder, particularly when the rule-making power does not authorise for framing of such a rule. Rule 80 is, therefore, an excessive delegation of substantive quasi-judicial power in favour of the Commissioner which ex facie seems unsupportable. But this Court exercising its power as a court of appeal under section 23(4)(c)(i) cannot quash rule 80 being itself a creature of the statute. This rule could only be quashed in an appropriate proceeding under article 226 of the Constitution.”

8. At this juncture it is necessary to take note of the relevant provisions. They so far as relevant are section 23(4) and rules 79 and 80. They read as follows:

“Section 23. Appeals and revisions.—

(1) to (3)……………………

(4)(a) Subject to such rules as may be made and for reasons to be recorded in writing, the Commissioner may, upon application by a dealer or person or on his own motion revise any order made under this Act or the rules made thereunder by any person other than the Tribunal, appointed under sub-section (3) of section 3 to assist him:

Provided that the Commissioner shall not entertain any such application for revision if the dealer or the person filing the same having a remedy by way of appeal under sub-section (1), or sub-section (3) did not avail of such remedy or the application is not filed within the prescribed period.

Explanation.—Any provision contained elsewhere in this Act which provides for determination of any specific matter shall not debar the Commissioner from determining such matter in exercise of the powers conferred upon him under this sub-section.

(b) If the Commissioner proposes to reject an application for revision under the foregoing provision he shall record the reasons for such rejection.

(c) Any dealer or person, as the case may be, the State Government aggrieved by any order passed by the Commissioner on his own motion may, within sixty days from the date of receipt of such order, prefer an appeal—

(i) if the order was passed by the Commissioner, to the High Court, and

(ii) if the order was passed by any authority subordinate to the Commissioner, to the Commissioner.

(cc) All orders passed under this sub-section shall, subject to orders passed in an appeal, if any, be final.

(d) Notwithstanding anything contained in section 17, the Commissioner shall not, except with the prior approval of the State Government delegate his powers under this sub-section to any other person appointed under sub-section (3) of section 3 to assist him.

Rule 79: Application to Commissioner for revision.—The application to the Commissioner for revision of an order passed by an Assistant Sales Tax Officer or a Sales Tax Officer, or an Assistant Commissioner, as the case may be, may be filed by the dealer within thirty days from the date of receipt by him of such order:

Provided that no such application shall be entertained by the Commissioner in respect of any order against which the applicant has a right of appeal under sub-section (1) or sub-section (3) of section 23:

Provided farther that the Commissioner may admit an application for revision received after the said period if it is shown to his satisfaction that the appellant had reasonable cause for not preferring the application in time.

Rule 80: Revision by the Commissioner suo motu.—The Commissioner may on his own motion at any time within three years from the date of passing of any order by the Sales Tax Officer or within two years from the date of passing of any order by the Additional Commissioner, Special Additional Commissioner or Assistant Commissioner, as the case may be, call for records of the proceedings in which such order was passed and if he considers that any order passed therein is erroneous in so far as it is prejudicial to the interest of the revenue he may after giving the dealer an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary revise any such order:

Provided that the Commissioner shall not revise any order under this rule—

(1) Where an appeal against the order is pending before the appellate authority under section 23, or

(2) Where time-limit for filing an appeal under section 23 has not expired.”

9. It is an accepted position in law that to “delegate” to another is not to denude yourself. As was observed by Wills, J. in Huth v. Clarke, (1890) 25 Q.B.D 391, “In my opinion the words, in its general sense and as generally used, does not imply, or point to, a giving up of authority, but rather the conferring of authority upon some one else”. As observed by Lord Coleridge, C.J 25 Q.B 304, the word “delegation” implies that powers are committed to another person or body which are as a rule, always subject to resumption by the power delegating. The person delegating does not denude himself. (Per Wharton's Law Lexicon, 1976 Reprint Edn. at page 316). Delegation implies also the power to withdraw delegation. As indicated in Wharton's Law Lexicon, delegation is a sending away; a putting into commission; the assignment of a debt to another; the entrusting another with a general power to act for the good of those who depute him. The word “delegate” means little more than an agent. An agent exercises no power on his own but only the powers of his principal. The observation in Huth's case, (1890) 25 QBD 391 was referred to in Roop Chand v. State of Punjab, AIR 1963 SC 1503. In general delegation of power does not imply parting with authority. The delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate. [See Battelley v. Finsbury Borough Council, (1958) 56 LCR 165)].

10. In Corpus Juris Secundum, Volume 26, “delegate” has been described as follows:

“As a noun, a person sent and empowered to act for another, one deputed to represent another in a more popular but less accurate sense, a regularly selected member of a regular party convention.

As a verb, in its general sense and as generally used, the term does not imply, or point to, a giving up of authority, but rather the conferring authority upon some one else.

At common law, it is the transfer of authority by one person to another, the act of making or commissioning a delegate.

Expression ‘delegation of authority or power’ is a term which like the word ‘delegate’ does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself.”

11. In Collins Cobuild English Dictionary the word “delegate” has been stated to be “a person who is chosen to vote or make decisions on behalf of a group of other people. If you delegate duties, responsibilities, or power to some one, you give them those duties, those responsibilities, or that power so that they can act on your behalf. If you are delegated to do something you are given the duty of acting on some one else's behalf by making decisions, voting, of doing some particular work.”

12. In Black's Law Dictionary, 6th Edition, the word “delegate” has been stated to mean a person who is appointed, authorised, delegated or commissioned to act in the stead of another. Transfer of authority from one to another. A person to whom affairs are committed by another. “Delegation” according to said dictionary means, the instructing another with a general power to act for the good of those who depute him; transfer of authority by one person to another.

13. According to Venkataramaiya's Law Lexicon, “delegation” as the word generally used does not imply a parting with powers by the person who grants the delegation, but points rather to a conferring of an authority to do things which otherwise the person would have to do himself.

14. There is no quarrel over the proposition that a delegator retains power, and is not denuded of the power by such delegation.

15. The Commissioner admittedly does not intend to exercise power delegated, i.e, the power of hearing revision applications under section 23(4)(a) read with rule 79. That power has already been exercised by the delegatee. The Commissioner intends to exercise the power of revision under rule 80. Exercise of power under rule 80 is not same as exercised by him under rule 79. It is to be noted here that the Legislature in its wisdom put a seal of finality on all orders passed under sub-section (4) of section 23 of the Act.

16. Under clause (c) of sub-section (4) of section 23 any dealer or person as the case may be, the State Government aggrieved by any order passed by the Commissioner on his own motion may, within sixty days from the date of receipt of such order, prefer an appeal. If the order is passed by the Commissioner, the appeal is to be filed before the High Court; and if the order is passed by any authority subordinate to the Commissioner, to the Commissioner. It is, however, to be noted that the right of appeal has been conferred in respect of an order passed by the Commissioner on his own motion. The expression “Commissioner” as defined in the Rules means the Commissioner of Sales Tax and includes any officer to whom the Commissioner of Sales Tax may delegate under section 17 his powers and duties under the Act, as provided in rule 2(e).

17. Further, under section 23(4)(d) notwithstanding anything contained in section 17, the Commissioner shall not, except with the prior approval of the State Government, delegate his powers under this sub-section to any other person appointed under sub-section (3) of section 3 to assist him. Under sub-section (3) of section 3, the State Government may appoint such other persons under any prescribed designation including an Additional Commissioner and a Deputy Commissioner to assist the Commissioner and they shall exercise, such powers and perform such duties as may be conferred or imposed by or under the provisions of the Act within such local area, as may be assigned to them by the Commissioner.

18. From notification dated May 18, 1963 referred to above it is quite clear that with regard to exercise of power of revision under section 23(4)(a), the Commissioner delegated his function to the Additional Commissioner, and in exercise of such power the latter disposed of the matter by the order which is now sought to be revised. The scheme of section 23 in fact does not provide for a second revision. Section 23(4)(cc) attaches finality to the first order passed in revision as indicated above. It has been submitted that the power delegated was sought to be exercised, because the delegator does not denude his original power. This submission has no force because the Commissioner has not initiated the proceeding for hearing the matter afresh in terms of power conferred under rule 79. The Commissioner could not have done this after disposal of the matter finally by the delegated authority, and the order has assumed finality. Even if the Commissioner would have initiated the proceeding for hearing the matter afresh, it would have amounted to an attempt to review of his own order because the delegated authority had exercised power of revision by the delegator, i.e, the Commissioner. Looked at from any angle the Commissioner's notices under rule 80 cannot be maintained. View expressed by this Court in Orient Paper Mills’ case [1988] 70 STC 333 and followed thereafter needs no departure as it is the correct one. The above being the conclusion, the inevitable result is that the two writ applications (O.J.C Nos. 14993 and 14994 of 1997) are to be allowed. The impugned notice vide annexure 1 in each of the two cases is quashed.

19. In O.J.C No. 2791 of 1998, it has been alleged that the Additional Commissioner who had passed order in the revision cases extended the time granted to the Sales Tax Officer for compliance with his order without any notice to the petitioner. The Additional Commissioner had fixed time-limit for grant of refund voucher up to September 30, 1997. By annexure 1-A without notice to the petitioner the time was extended up to October 31, 1997. The hidden purpose was to enable the Commissioner to issue notices which are subject-matter of challenge in O.J.C Nos. 14993 and 14994 of 1997. It is submitted that taking advantage of the extension the Commissioner has issued notices on October 7, 1997 which are impugned in the two writ applications referred to above. He could not have done it, had the Sales Tax Officer complied with the direction earlier given by the Additional Commissioner to grant refund by September 30, 1997.

20. It is not necessary to go into the merits of the submissions and to trace the purpose for which the extension has been granted by the Additional Commissioner. There is, however, substance in the plea of the learned counsel for the petitioner, that before such extension, was granted an opportunity should have been granted to the petitioner. Be that as it may, as has been held above, the notices issued by the Commissioner are without jurisdiction. In the circumstances, we direct the Sales Tax Officer to comply with the direction given by the Additional Commissioner in the matter of grant of refund within three weeks from today.

21. O.J.C No. 2791 of 1998 is accordingly disposed of. In the circumstances, we make no order as to costs in each of the cases.

S.C Datta, J.:— I agree.

22. Petitions allowed.