1. The petitioner is a firm of building contractors carrying on the business of construction work in Delhi. During the year 1954-55 the petitioner was registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi. The petitioner deposited a sum of Rs. 9,639 as sales tax for the year 1954-55 along with one consolidated return. By order dated 31st January, 1956, the Assessing Authority assessed the petitioner to a sales tax of Rs. 10,211-3-0 and also levied a penalty of Rs. 400 for not depositing the tax due along with the return. The petitioner's appeal was rejected on 20th July, 1956, and aggrieved by the said order he filed a revision before the Commissioner of Sales Tax inter alia on the ground that the petitioner was not a dealer under the Act and, therefore, not liable to sales tax. By order dated 21st December, 1956, the Commissioner of Sales Tax allowed the revision and quashed the assessment. He, however, remanded the matter to the Assessing Authority with a direction to take steps to cancel the registration certificate of the dealer after collecting from it the tax saved by making tax-free purchases on the basis of the registration certificate. In Mithan Lal v. State of Delhi A.I.R. 1958 S.C. 682 the Supreme Court decided that in Delhi, sales tax could be validly levied on the transfer of goods involved in building contracts. It appears that it was in view of this decision that the petitioner was served with a notice by the Commissioner of Sales Tax, Delhi, being notice dated 18th March, 1959, calling upon the petitioner to show cause why the assessment order dated 21st December, 1956, be not reviewed. The validity of this notice has been impugned before me and two points have been agitated in support of the petition:

(1) In view of Section 11 (2a) of the Act no order of assessment can be made after the expiry of four years and, therefore the order dated 21st December, 1956, cannot be reviewed; and (2) the Assessing Authority having made an order in pursuance of the remand by the Commissioner, the Commissioner's order cannot be reviewed now.

2. In support of the first contention reliance has been placed on State of Orissa v. Debaki Debi and Ors. [1964] 15 S.T.C. 153. This was a case under the Orissa Sales Tax Act, 1947. The second proviso to Section 12(6) of the Orissa Act is in the following terms :

Provided further that no order assessing the amount of tax due from a dealer in respect of any period shall be passed later than thirty-six months from the expiry of such period.

3. The impugned orders in State of Orissa's case, ([1964] 15 S.T.C. 153) were made by the Collector of Sales Tax in purported exercise of power of revision under Section 23(3), which is in the following terms :

(3) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Collector 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 Revenue Commissioner may, in like manner, revise any order passed by the Collector.

4. The assessees challenged the orders before the High Court, and the High Court thought that Section 12(7), which deals with escapement of assessment, includes also the order of assessment made by the revising authority under Section 23(3) and in that view held that the orders of assessment passed beyond thirty-six months were barred by limitation. The Supreme Court, however, did not accept that view of the High Court and observed :

We therefore find it difficult to agree with the High Court that Section 12(7) includes also the reassessment made by the revising authority under Section 23(3).

5. Their Lordships of the Supreme Court then proceeded to consider whether the bar of limitation provided in the proviso to Section 12(6) applied to an order under Section 23(3). Their Lordships were of the view that the said proviso, though inserted by the draftsmen in the form of a proviso to Section 12(6), was in substance a main provision and was not in terms limited only to the orders of assessment made under Section 12, but applied to and governed any order assessing the amount of tax which would manifestly include an assessment under any provisions of the Act besides Section 12. Their Lordships then proceeded to answer the argument on the assumption that the proviso to Section 12(6) applied only to orders of assessment made under Section 12 and observed :

Assuming, however, for argument's sake that it applies only to orders of assessment under Section 12, that construction is of no help to the appellant unless it can be said that the impugned orders of assessment were not made under Section 12. We find it difficult to see how that can be said. It is true, no doubt, that the orders were made by virtue of powers conferred by Section 23. But Section 23 itself does not clothe the appellate or revising authority with any independent powers of assessing the tax due under the Act, independent of the powers under Section 12.

A close examination of the terms of Section 23 would make this position clear. Let us first take the case of the powers of the appellate authority under Section 23(2). Among the orders he might pass in disposing of an appeal are '(b) set aside the assessment...and direct the assessing authority to pass a fresh order after such further enquiry as may be directed.' Mr. Sastri did not dispute the position that if the appellate authority exercised the power Underlined the 'assessing authority' can proceed to carry out the fresh assessment only under Section 12 and that, in that event, his right to proceed further in the way of assessment would be subject to the limitation of 3 years prescribed by the second proviso to Section 12(6). The result would thus be that the appellate authority could pass an order setting aside the assessment at any time but the assessing authority cannot give effect to the order to make a fresh assessment if by that date three-year period is past. This would virtually mean that if on the date the appeal was disposed of the 3 year period was over or nearly over, the powers which the appellate authority could exercise would be restricted to those set out in clause (a) of section 23(2), a result which would never have been contemplated. In other words, if the construction suggested by the appellant were accepted, we would have the anomalous situation that if the appellate authority set aside the assessment and remanded it for fresh orders, no fresh assessment can be done, but that if, instead of so doing, he himself effected the same reassessment, there would be no bar of limitation. On such a construction therefore it would be at the option of the appellate authority, depending on the precise order he passed, to decide, whether the period of limitation which the statute had prescribed should be attracted to an assessment or not. That should be sufficient to reject the appellant's argument that Section 23(2) was itself the source of power to effect an assessment. We need hardly add that what applies to an appeal under Section 23(2) applies to a revision under Section 23(3), as the powers of the revising authority and the orders it might pass are not conceived of as differing in any manner from those of the appellate authority. We have, therefore, no hesitation in holding that even when an appellate or revisional authority is effecting a fresh assessment by enhancing it, it is exercising the power which is conferred by Section 12, and, so to speak, doing the duty which an assessing authority would or ought to have performed. Any order of assessment made by the appellate authority or as in the present appeals by the revising authority must therefore be held to be orders passed under Section 12 as well as under Section 23. Consequently, the period of limitation prescribed in the second proviso in Section 12(6) will in terms become applicable.

6. It is argued that on the basis of the said decision of the Supreme Court I must hold that an order under Section 20(4) of the Bengal Finance (Sales Tax) Act, 1941, being in effect an order of assessment under Section 11(1) cannot be made after the expiry of the period prescribed under Section 11(2a). Ground of injustice and hardship has also been put forth as militating against the intention of the Legislature to permit review after the lapse of even a hundred years. On the other hand, the respondents' contention is that if the petitioner's argument is accepted then even the appeals and revisions must in all cases be disposed of within four years, which might create serious difficulties in the administration of the law. So far as this argument on behalf of the respondents is concerned, it finds an answer in the majority judgment of their Lordships of the Supreme Court in State of Orissa's case [1964] 15 S.T.C. 153. It was observed :

The fact that no period of limitation has been prescribed by the Legislature itself for the passing of any order of assessment by the appellate authority or the revising authority is a further reason for thinking that the Legislature intended that the period of limitation prescribed in Section 12(6) should apply to all orders of assessment irrespective of whether they were original orders, or appellate orders or revisional orders.

7. The respondents have further argued that the proviso added to Section 11 after Sub-Section (2a) in 1959 clarifies the intention of the Legislature as it has now been provided that the bar of limitation shall not apply where an assessment order is made in consequence of or to give effect to any order of an appellate or revisional authority or of a Court. It is, however, not in dispute that this proviso is not applicable to the case in hand having been introduced in 1959. I must, therefore, ascertain the meaning of the statute as in force, before the year 1959.

8. I have carefully considered the decision of the Supreme Court and am of the opinion that on the parity of reasons which found favour with the majority of their Lordships, it must be held that the petitioner is right in his contention. True that the proviso which fell for consideration before the Supreme Court was couched in much wider language, being applicable to all assessment orders made even in the exercise of power of appeal or revision, but the Supreme Court did not rest the decision on that point alone. The Supreme Court further held that any order of assessment made by the appellate authority or the revising authority must be treated as an order under Section 12. From the above the only deduction possible appears to me to be that an order of assessment made on a review must be treated as an order of assessment under Section 11(1). That being so, the bar of limitation provided in Section 11 (2a) would be applicable. I would like to make it clear that I am concerned with the construction of the Act as it stood before 1959 and am, therefore, not obliged to consider the effect of the proviso added to Section 11 after Sub-Section (2a) in 1959. Ignoring that proviso the result of accepting the respondents' argument would be as anomalous in this case as under the Orissa Act. Their Lordships of the Supreme Court when considering Section 23(2) of the Orissa Act, the section dealing with the powers of the appellate authority, pointed out that if the appellate authority exercised the power of setting aside the assessment order and directing the assessing authority to pass a fresh order, the power of the assessing authority would be subject to the limitation of 3 years and that the same period of limitation should apply if the appellate authority were to make the assessment order itself. There is no difference between the language of Section 23(2) of the Orissa Act and Section 20(2) of the Act under consideration and that is why I have said that the anomalies visualised by the Supreme Court under the Orissa Act would equally arise under the present Act. If Section 23(2) of the Orissa Act did not provide the source of power to effect an assessment, Section 20(4) also cannot provide that source. Consequently, when the appellate or revisional authority exercises power under Section 20, it is in effect making an order of assessment under Section 11(1). That would, in my opinion, be equally true of the power of review exercised under Section 20(4). It is hard to accept that the Legislature intended that the power of review can be exercised without any bar of limitation and even after a 100 years. It follows that it was not open to the Assessing Authority to review the order dated 21st December, 1956, after the expiry of 4 years from the end of the year 1954-55. The hearing of notice for review was fixed for 8th April, 1959, that is, a date beyond the expiry of 4 years from the end of March, 1955. The bar of limitation being fully applicable it was legally not possible for the Commissioner to review his order dated 21st December, 1956, on 8th April, 1959. That being so, the petition must be allowed and a writ of prohibition issued to the Commissioner of Sales Tax restraining him from proceeding further in pursuance of the notice for review dated 18th March, 1959. In view of this it is not necessary to decide the other questions.

9. The petition is, therefore, allowed as indicated above. The parties will, however, bear their own costs.