Dr. B.P Saraf, J.:— These 8 writ petitions involve common questions of law and as such they were taken up together for hearing and are being disposed of by this common judgment.
2. The main question for determination in these cases relates to the scope and ambit of the power of the Commissioner to exercise suo motu power of revision under sub-section (1) of section 21 of the Tripura Sales Tax Act, 1976 (hereinafter ‘the Act’). The facts of these cases lie in a narrow compass. To avoid repetition, facts of Civil Rule No. 182/92 only are being stated. The petitioner, who is a dealer carrying on business of manufacture, sale and supply of bricks etc. was assessed by the Superintendent of Taxes, Agartala under Section 9(3) of the Act after examining his books of account etc. The periods involved were periods ending 31.3.77, 31.3.78 and 31.3.79 While making the assessments the Superintendent of Taxes considered the sale figure of taxable and non-taxable goods disclosed by the petitioner and on consideration of the facts and circumstances of the case determined the turnover of the petitioner and ???ompleted the assessments. That was done on 19.5.81 by three different orders. After completion of assessments, the petitioner received a notice issued by the Commissioner of Taxes informing that he had called for the records of the assessments of the petitioner for the 3 years stated above and on perusal of the same he was of the opinion that the same had been hurried and superficial and therefore in the interest of revenue and in exercise of the powers under Section 21 of the Act h??? wanted to re-examine the books of account for the said periods. By the said notice the petitioner was asked to show cause why the orders of the Superintendent of Taxes should not be modified. He was also directed to produce all ???ecords relating to production, sale, payment of wages and other evidence he wished to adduce in support of his contention in ???espect of those assessments. The aforesaid notice is set out below:
“REVISION CASE NO. 89/82/130.131
SDR/ST/813(B)/76
COMMISSIONER OF TAXES
VERSUS
M/S PRIYAVART DEWAN SINGH.
I called for the records of assessment of M/s Priyavart Dewan Singh TST No. SDR/ST/813 (B)/76 for the period 1976-77, 1977-78, 1978-79 ending on 31st March, 1979 to satisfy myself on the legality and propriety of the orders passed by the Superintendent of Taxes, Agartala.
2. I have perused the orders of the Superintendent of Taxes. The Superintendent of Taxes was satisfied with the books of accounts of the dealer for these years and has accepted the turnover estimated by the dealer.
3. The Superintendent of Taxes has not elaborated on the books that had been examined and the basis of his satisfaction. I would have expected the Superintendent of Taxes to mention the reconcilation that had been obtained after a scrutiny of records relating to payment of wages, consumption of fuel, production of bricks, & sale of bricks. This was particularly necessary because the dealer had not filed any return for the year 1978-79. In the absence of this valuable information, I am of the opinion that the assessment has been hurried and superficial.
4. Therefore, in the interest of revenue of the State and in exercise of powers vested under Section 21 of TST Act, 1976, I would like to re-examine the books of accounts of the dealer for the period from 1976-77 to 1978-79 ending on 31st March, 1979.
5. M/s Priyavart Dewan Singh is hereby required to show cause as to why orders of the Superintendent of Taxes dated 27.5.1981 in respect of assessment years 1976-77, 1977-78 and 1978-79 ending on 31st March, 1979 should not be modified. He is also directed to appear before the undersigned on 3.7.82 at 1100 hours with all records relating to production, sale, payment of wages and any other evidence he wishes to adduce in support of his contention in respect of this assessment.
S/d-Sukumar N. Oommen
Commissioner of Taxes.”
3. The petitioner applied for time by filing a petition through his advocate which was not granted on the ground that the advocate did not file his Vakalatnama and, as such, be had no locus standi to appear. The petition for adjournment was rejected. The Commissioner also held that the petitioner was evading to produce the records and thereby committed an offence punishable under Section 29(5) of the Act and passed an order to register a complaint against the petitioner with the Judicial Magistrate for the aforesaid offence. An appeal was filed before the Tripura Sales Tax Tribunal. The Tribunal did not go into the main contentions of the petitioner relating to the jurisdiction of the Commissioner to issue notice on the ground that it was premature. It, however, observed: “It is not correct to construe the provision of section 21 to mean that there must be some error obvious on the face of the records. Any assessment order can be taken up on revision by the Commissioner if he is of the view that it is prejudicial to the interest of the revenue”. The Tribunal also directed the Commissioner to give another opportunity to the petitioner to produce the vakalatnama and other records. The petitioner thereafter moved this Court by filing the present writ petition challenging inter alia the jurisdiction of the Commissioner to initiate proceedings for suo motu revision under sub-section (1) of section 21 of the Act as also the interpretation given by the Tribunal to Section 21(1) that any order can be taken up for revision, by the Commissioner if he is of the view that it is prejudicial to the interest of the revenue even if there is no error in the same. The petitioner has also challenged the finding of the Commissioner holding that by seeking adjournment the petitioner had committed an offence under section 29(5) of the Act and his order to file a complaint before the Judicial Magistrate for prosecution of the petitioner.
4. We have heard Mr. B. Das, the learned Advocate for the petitioner and Mr. M. Mazumdar, the learned Government Advocate.
5. We shall first deal with challenge on the ground of Hack of jurisdiction and for that purpose examine the scope and ambit of the powers of the Commissioner. Subsection (1) of Section 21 of the Act, empowers the Commissioner to exercise suo motu power of revision and interfere with the orders passed by any person appointed under sub-section (1) of Section 4 of the Act to assist him if he considers that the order which is sought to be revised is erroneous in so far as it is prejudicial to the interest of the revenue. Sub-section (4) imposes certain restrictions on the exercise of the power which are however, not relevant for the present case. Sub-section (1) which is relevant for the present purpose is reproduced below:
“21. Revision by Commissioner:— (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if be considers that any order passed therein by any person appointed under sub-section (1) of Section 4 to assist him, is erroneous in so far as it is prejudicial to the interest of the revenue, be may, after giving the dealer an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary pass such orders thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.
(2)* * ** * *
(3)* * ** * *
(4)* * ** * *
6. From a reading of sub-section (1) of section 21 it is clear that power of suo motu revision can be exercised by the Commissioner only if, on examination of the records of any proceedings under this Act, he considers that any order passed therein by any person appointed to assist him is “erroneous in so far as it is prejudicial to the interest of the revenue”. It is, therefore, not an arbitrary or unchartered power. It can be exercised only on fulfilment of the requirements laid down under sub-section (1). The consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interest of the revenue must be based on materials available on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such actions will be against the well accepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quass judicial controversies as it must in other spheres of human activity-(See Parasuram Pottery Works Co. Ltd. v. I.T.O, (1977) 106 ITR 1(10) SC).
7. As observed in Sirpur Paper Mills Ltd. v. ITO, (1978) 114 ITB 404 AP by Raghuvir, J. (as his Lordship then was), the department cannot be permitted to bring in fresh litigation because of new views they entertained on facts or new versions which they present as to what should be the inference or proper inference as of the facts disclosed or the weight of the circumstances. If that is permitted, litigation would have no end, “except when legal ingenuity is exhausted”. To do so, is “to divide one argument in to two and to multiply the litigation”.
8. The power of suo motu revision under sub-section (1) is in the nature of supervisory jurisdiction and the same can be exercised only if the circumstances specified therein exist. Two circumstances must exist to enable the Commissioner to exercise power of suo-motu revision under this sub-section, (i) the order is erroneous (ii) by virtue of the order being erroneous prejudice has been caused to the interest of the revenue. It is not sufficient that the order is erroneous. It must be erroneous and also prejudicial to the interest of the revenue. If an order is erroneous but not prejudicial to the revenue, the Commissioner cannot exercise power under this sub-section. Like wise, it is not sufficient to exercise power under Section 20(1) that the order in question is prejudicial to the interest of the revenue. It must be erroneous first and if it is so then it can be revised in so far as it is prejudicial to the interest of the revenue. It has, therefore, to be considered firstly as to when an order can be said to be erroneous. We find that the expressions “erroneous”, “erroneous assessment”, and “erroneous judgment” have been defined in Black's Law Dictionary. According to definitions “Erroneous” means “involving error; deviating from the law”. “Erroneous assessment” refers to an assessment that deviates from the law and is therefore invalid, and is a defect that is jurisdictional in its nature, and does not refer to the judgment of the assessing officer in fixing the amount of valuation of the property. Similarly ‘erroneous judgment’ means: ‘One rendered according to course and practice of court, but contrary to law, upon mistaken view of law, or upon erroneous application of legal principles’.
9. From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an officer acting in accordance with law makes certain assessment and determines the turnover of a dealer, the same cannot be branded as erroneous by the Commissioner simply because according to him the order should have been written more elaborately. This section does not visualise a case of substitution of judgment of the Commissioner for that of the officer, who passed the order, unless the decision of the subordinate officer is held to be erroneous. Cases may be visualised where assessing officer while making an assessment examines the accounts, makes his enquiries, applies his mind to the facts and circumstances of the case and determines the turn over either by accepting the accounts or by making some estimates himself. The Commissioner on perusal of the records may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the turnover at a higher figure than the one determined by ???he assessing officer. That would not vest the Commissioner with power to re-examine the accounts and determine the turnover himself at a higher figure. It is because the officer has exercised the quasi judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interest of the revenue. But that by itself will not be enough to vest the Commissioner with the power of suo motu revision because the first requirement, namely, that the order is erroneous, is absent. Similarly if an order is erroneous but not prejudicial to the interest of the revenue, then also the power of suo motu revision cannot be exercised. Any and every erroneous order cannot be subject matter of revision because the second requirement also must be fulfilled. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed.
10. As observed in Dawjee Dadabhoy and Co. v. Jain, (1957) 31 ITR 872 (Cal) (881) “The words prejudicial to the interest of the revenue” have not been defined, but it must mean that the orders or assessment challenged are such as are not in accordance with law, in consequence whereof the lawful revenue due to the State has not been realised or cannot be realised. It can mean nothing else”. The aforesaid observations were also applied by the Gujarat High Court in Addl. C.I.T v. Mukur Corporation, (1978) III ITR 312 (Guj). We are of the opinion that the aforesaid interpretation given by the Calcutta High Court to the expression “prejudicial to the interest of the revenue” is the correct interpretation.
11. We therfore hold that in order to exercise power under sub-section (1) of section 21 of the Act there must be material before the Commissioner to consider that the order passed by the Officer was erroneous in so far as it was prejudicial to the interest of the revenue. We have already held what is erroneous. It must be an order which is not in accordance with the law or which has been passed by the authority without making any enquiry in undue haste. We have also held as to what is prejudicial to the interest of the revenue. An order can be said to be prejudicial to the interest of the revenue if it is not in accordance with the law in consequence whereof the lawful revenue due to the State has not been realised or cannot be realised. There must be material available on record called for by the Commissioner to satisfy him prima facie that the aforesaid two requisites are present. If not, be has no authority to initiate proceedings for revision. Exercise of power of suo motu revision under such circumstances will amount to arbitrary exercise of power. It is well settled that when exercise of statutory power is dependent upon the existence of certain objective facts, the authority before exercising such power must have materials on records to satisfy it in that regard. If the action of the authority is challenged before the Court it would be open to the courts to examine whether the relevant objective factors are available from the records called for and examined by such authority. Our aforesaid conclusion gets full support from a decision of Sabyasachi Mukharji, J. in Russel Properties (P) Ltd. v. A Choudhury, Addl. CIT, (1977) 109 ITR 229 (Cal), In our opinion any other view in the matter will amount to giving unbridled and arbitrary power to revising authority to initiate proceedings for revision in every case and start re-examination and fresh enquiries in matters which have already been concluded under the law. As already stated it is quasi judicial power hedged with limitation and has to be exercised subject to the same and within its scope and ambit. So far as calling for the records and examining the same is concerned, undoubtedly it is an administrative act, but on examination “to consider” or in other words to form an opinion that the particular order is erroneous in so far as it is prejudicial to the interest of the revenue, is a quasi judicial act because on this consideration or opinion the whole machinery of re-examination and reconsideration of an order of assessment, which has already been concluded and set at rest is set in motion. It is an important decision and the same cannot be based on the whims or caprice of the revising authority. There must be materials available from records called for by the Commissioner.
12. We have examined the facts of the present case in the light of the aforesaid legal position. On perusal of the affidavits and records, it appears that there was no material to show that the Superintendent of Taxes, who made the assessment, did not make the requisite enquiries or did not examine the requisite records. On the other hand it is evident from the assessment order itself that the petitioner produced all the relevant books of account, including Daily Sales Register, Consolidated monthly Sales Accounts, Manufacturing Register, Delivery Challans, Statement on Production & Sales etc. and the same were duly examined by the assessing officer and on consideration of the same assessments were made. The Commissioner also does not dispute this position. It is not a case where no enquiries were made by the assessing officer OF assessment was completed in undue haste, without due enquiries. The grievance of the Commissioner is that the assessing officer, namely, the Superintendent of Taxes did not elaborate in his order discussion on the books that he had examined and the basis of his satisfaction and stated in the said notice itself that he expected the assessing officer to mention the reconcilation that had been obtained after a scrutiny of records relating to payment of wages, consumption of fuel, production of bricks and sale of bricks and observed that in his opinion in the absence of such valuable information the assessment had been hurried and superficial and in the interest of the revenue he would like to re-examine the books of account of the dealer. The dealer had been asked to produce the requisite books for re-examination of the Commissioner. We have given our careful consideration to the circumstances in which the Commissioner initiated the proceedings for suo motu revision and we are constrained to observe that it does not justify exercise of power under sub-section (1) of section 21. Admittedly the officer had made all the necessary enquiries and examined the records. Not writing the order in the from or manner the Commissioner would have liked him to write, would not make the order erroneous. There is no provision in the Act or the Rules requiring the officer to write the order in particular form or to record particular facts, calculations etc. in his order. The assessing officer performs a quasi judicial function and till he acts as such, makes requisite enquires, examines the materials and comes to a quasi-judicial conclusion his order cannot be branded as erroneous. Besides, there is no material to show as to how by non—mentioning of the details or reconcilation etc. obtained after the scrutiny of the records etc. in the order of assessment, any prejudice has been caused to the revenue. There is nothing to justify an inference that more tax could have been exigible had the officer mentioned the details in the order as expected by the Commissioner. Under such circumstances, we do not find any justification for initiation of proceedings under sub-section (1) of section 21 of the Act in the instant case.
13. Mr. Majumdar, the learned Government Advocate, submitted that the matter may be remanded to the Commissione??? to be decided afresh in the light of the interpretation given by this Court to Section 21(1) of the Act. We have considered the submission. This Court normally does not interfere with the assumption of power of suo motu revision at the initial stage. In this case it was done so because the Tribunal interpreted Section 21 and held that it was not necessary for exercising power under Section 21(1) of the Act that the order in question must be erroneous, it is enough if the Commissioner is of the opinion that the order is prejudicial to the interests of the revenue. The petitioner was aggrieved by the interpretation of ???he Tribunal and approached this Court. We had therefore to ???nterpret Section 21(1) of the Act and as stated earlier we find that ???he interpretation given by the Tribunal is not ???orrect.
14. We have also heard the submissions of both the parties at length and perused the records. As we do not find any material even on record at this stage to justify exercise of power of suo motu revision, it will not be fair after 7 years to send the matter back to the Commissioner, more so when we find that there was no material to justify exercise of suo motu revisional power. We are, therefore, not inclined to accept the submission and hold that the initiation of proceedings under Section 21(1) of the Act in the instant case is not tenable in law.
15. Before concluding we may deal with two more submissions of the iearned counsel for the petitioner. Firstly, we may deal with the order passed by the Commissioner refusing to give adjournment and directing that the petitioner be prosecuted under Section 29(5) of the Act for failure to produce the records called for by him. Section 29 of the Act deals with offence and penalties. Sub-section (5) thereof makes failure or negligence to comply with any requirement under the provisions of the Act an offence punishable with imprisonment which may extend to six months or with fine not exceeding one thousand rupees or with both. We have perused the order of the Commissioner. We are distressed to note the way a seniormost functionary of the department has acted in the matter. If a person is required to appear or to produce some accounts or documents in connection ???ith any proceeding and be applies for time, the authority concerned may decide whether to extend the time or not and may allow or reject the same. This is a quasi judicial act and has to be performed accordingly. If the prayer is rejected, natural consequences will follow and the matter may be decided ex parte on the basis of the materials on record. The party may thereby lose the opportunity of appearing and showing cause against the proposed action. But that does not make the person applying for time an offender. That is stretching the law too far. Besides the facts of ths instant case indicate that the power of prosecution which is a very drastic power has been used in a light-hearted manner without even ca???ing for the elementary principles of law that in order to saddle a person with a criminal liability and to charge him with an offence punishable with imporisonment, mere breach of any statutory requirement is not enough. We find it difficult to approve the action of the Commissioner in ordering prosecution of the petitioner in the instant case, It, however, appears that the Tribunal directed the Commissioner to give a fresh hearing to the petitioner. It is stated at the Bar that no prosecution had been launched in view of the order of the Tribunal. That-being the position no further order in this regard is needed. Another submission of the learned counsel for the petitioner is that the Commissioner cannot exercise power of revision in any case under the Act whatsoever because the powers under Section 43 of the Act can be delegated by hint to persons appointed under sub-section (1) of Section 4 of the Act only to assist him. In other words, the submission is that all officers appointed under the Act simply assist the Commissioner and orders passed by them are in fact orders passed by the Commissioner and, as such, the Commissioner cannot exercise the power of revision. We are not at all impressed by the aforesaid submission, which is based apparently on erroneous appreciation of the provisions of the Act. Section 4 of the Act provides for appointment of a Commissioner of Taxes and such other persons to assist him, as the State Government may think fit. The Act itself does not specify the classes of officers who may be so appointed nor does it specify the powers, functions and duties of such officers. Sub-section (2) of Section 4 provides that persons appointed under sub-section (1) shall exercise such powers as may be conferred and perform such duties as may be required, by or under this Act,. Section 4, so far as it is relevant is quoted below;
“4. Taxing Authority and Tribunal.—
(1) The State Government may, for carrying out the purposes of this Act, appoint a Commissioner of Taxes and such other persons to assist him as it thinks fit.
(2) Persons appointed under sub-section (1) shall exercise such powers as may be conferred, and perform such duties as may be required, by or under this Act.
(3) The State Government may, instead of appointing any person under subsection (1); invest, by notification, any officer to exercise any power under this Act and also specify therein the area in which power is to be exercised and thereupon such officers shall be deemed to have been appointed under sub-section (1).
******
(9) All persons appointed under this section shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860”.
16. The authorities that can be appointed to assist the Commissioner have been specified in Rule 4 of the Tripura Sales Tax Rules, 1976. Rule 4 is reproduced below:
“4. Taxing Authorities: (1) There shall be the following authorities to assist the Commissioner—
(i) Assistant Commissioner of Taxes,
(ii) Superintendent of Taxes,
(iii) Inspector of Taxes.
(iv) Any other persons appointed as such by the State Government.
(2) Subject to the provisions of the Act and the rules made thereunder, the Commissioner, may, by notification in the official Gazette, delegate the powers to be exercised by above classes of officers and shall specify the area or the person in respect of which powers are to be exercised by each of the above classes of officers”.
17. Under the Act, all powers are vested in the Commissioner, who is empowered under Section 43 of the Act to delegate the same to any person appointed under sub-section (1) of Section 4 to assist him. Section 43 reads as follows:
“43. Delegation of Commissioner's Powers:— The Commissioner may, subject to such restrictions and conditions as may be prescribed, delegate, by notification in the official Gazette, any of his powers under this Act to any person appointed under sub-section (1) of Section 4 to assist him”
18. There is no dispute at the bar that by notification made under section 43, power of assessment under Section 9 of the Act has been delegated by the Commissioner to the Superintendent of Taxes, who has made the assessment in the present case in exercise of that power. It is clear from the provision of Sub-section (2) of Section 4 that the person appointed under sub-section (1) of Section 4 of the Act, which include not only the Commissioner of Taxes but also “other persons appointed to assist him”, shall exercise such powers as may be conferred and perform such duties as may be required by or under the Act. The Superintendent of Taxes by virtue of power delegated to him by a notification under section 43 of the Act read with the relevant Rules has been vested with the power to make an assessment under Section 9. He is, therefore, the officer having the power to make an assessment. The submission made by the learned counsel for the petitioner that officer appointed under the Act can only assist the Commissioner is misconceived. The expression “to assist him” cannot be react in isolation. It is descriptive of the officers other than the Commissioner who are described as persons appointed to assist him. But the law makes it very clear that such persons shall exercise all the powers conferred on them. The power of assessment having been conferred on the Superintendent off Taxes the same has been exercised by him as such. The Superintendent of Taxes admittedly being an officer appointed to assist the Commissioner, the Commissioner can exercise power of revision in respect of order passed by him. The submission of the learned counsel on this score therefore is without any substance and, is therefore, rejected.
19. In view of what is stated above, the petitions are allowed. Proceeding for suo motu revision under Section 21(1). of the Act, in all the eight cases, pending before the Commissioner of Taxes, is quashed. No order as to costs.