Agarwal, C.J:— Under section 21(3) of the Bihar Sales Tax Act of 1944 the Board of Revenue was called upon by this Court to state a case on the following questions:
“(1) Whether in a proceeding under the Act costs may be awarded against a dealer except by the High Court under clause (6) of section 25; and
(2) Whether the Commissioner may legally dismiss in application for revision under section 24(4) without giving the applicant a reasonable opportunity of being heard in support of his application.”
The reference to the sections in the questions framed were to those of the Act of 1947 which replaced the Act of 1944, but which are in pari materia with the provisions of the former Act.
So far as the first question is concerned, that has been decided in Province of Bihar v. Jokhi Ram Ram Prasad by this Bench, which held that there was no power to grant costs under the Bihar Sales Tax Act except the power vested in the High Court by section 25(6) of the Act of 1947 which is equivalent to section 21(6) of the Act of 1944. The revisional powers of the Commissioner under the Act of 1944 are derived from section 20, sub-section (3) of which provides:
“Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner may, upon application or of his own motion, revise any order passed under this Act or the rules thereunder by a person appointed under section 3 to assist him, and subject, as aforesaid, the Board of Revenue may, in like manner, revise any order passed by the Commissioner:
Provided that before rejecting any application for revision of any such order the Commissioner or the Board of Revenue, as the case may be, shall consider it and shall record reasons for such rejection.”
Sub-section (5) provides:
“Before any order is passed under this section which is likely to affect any person adversely, such person shall be given a reasonable opportunity of being heard.”
It is contended that the effect of sub-section (5) is to confer upon a dealer who has been assessed a right to be heard by the Commissioner before his application to revise an order is rejected. That contention, in my opinion, is entirely untenable. The Proviso to sub-section (3) merely requires the Commissioner or the Board of Revenue, as the case may be, to consider an application before rejecting it, and does not require the aggrieved party to be heard. Sub-section (5) merely requires the revising authority to hear the party before an order adverse to him is made. An order refusing to revise is not an order which can be said adversely to affect either, party to the proceedings. If it had been intended that an application in revision should not be rejected without hearing the party making it, that would have been made clear in the proviso to sub-section (3). It is to be noted that the revisional jurisdiction both of the Commissioner and the Board of Revenue is entirely discretionary and when a discretionary jurisdiction is conferred on a Tribunal, it is impossible to hold that anybody has a vested right to be heard before an order refusing to exercise the discretionary jurisdiction of revision, passed. I would, therefore, answer the first question, referred to us in the negative, and the second question in the affirmative. As the petitioner succeeds on the first point and fails on the second, there will be no order for costs. Half the fee of Rs. 100 deposited by the applicant under section 21(1) will be refunded to him.
Meredith, J.:— I agree.
S.H
Reference answered.