The Calcutta High Court has dismissed a review application filed by the Revenue authorities, ruling that a Senior Joint Commissioner cannot invoke suo motu revisional powers under Section 85 of the West Bengal Value Added Tax Act, 2003, to revise an order passed by a Joint Commissioner under Section 86 of the same Act.
Justice Kausik Chanda held that when a Joint Commissioner exercises revisional power under Section 86 as a delegate of the Commissioner, the resulting order is deemed to be an order of the Commissioner himself and cannot be subjected to further revision by another delegatee.
Background of the Case
The matter pertains to the assessment year 2010-11 (3rd and 4th quarters). The writ petitioners, Sanjay Sur and another, who are engaged in the cotton trade as exporters, applied for 73 declarations in Form “H” before the Sales Tax Officer, Barasat Charge. The request was rejected by an order dated March 3, 2013.
Challenging this rejection, the petitioners filed an application under Section 86 of the West Bengal Value Added Tax Act, 2003. By an order dated March 26, 2014, the Joint Commissioner, Commercial Taxes, allowed the prayer and directed the issuance of the 73 Form “H” declarations.
Subsequently, the Revenue filed an application under Section 85 of the Act before the Senior Joint Commissioner, challenging the Joint Commissioner’s order. On January 7, 2015, the Senior Joint Commissioner passed an order restricting the issuance of Form “H” to only six sellers. The petitioners challenged this order in a writ petition (WPO No. 782 of 2015), which was allowed by a Coordinate Bench on April 10, 2023, quashing the Senior Joint Commissioner’s order. The Revenue then filed the present application seeking a review of the April 10, 2023, order.
Arguments of the Parties
Appearing for the Revenue, Senior Advocate Md. T. M. Siddiqui argued that the Single Judge had proceeded on an erroneous premise by framing the issue as whether the power of suo motu revision could be invoked twice. He contended that the Senior Joint Commissioner, being a superior authority, was competent to revise the order of the Joint Commissioner under Section 85.
Mr. Siddiqui relied on the statutory language of Section 85, specifically the phrase “order passed by a person appointed under sub-section (1) of Section 6 to assist him,” arguing that this empowered the Senior Joint Commissioner to revise orders passed by the Joint Commissioner. He further submitted that if the judgment were allowed to stand, it would result in an unwarranted reduction of approximately Rs. 40 crores from the taxable turnover, causing prejudice to the State revenue.
On behalf of the respondents, Advocate Prabhat Kr. Singh argued that both the Joint Commissioner and the Senior Joint Commissioner are delegates of the Commissioner. Therefore, orders passed by them are deemed to be orders of the Commissioner himself. He contended that a suo motu revision of a revisional order by the Senior Joint Commissioner would amount to a “second revision” by the same authority, which is impermissible.
The respondents further argued that Section 85 and Section 86 are substantially similar, providing revisional powers either suo motu or upon application. Once jurisdiction is exercised under one provision, the other cannot be invoked for the same order.
Court’s Analysis and Observations
The Court examined the scheme of the Act, specifically Sections 3, 6, 85, and 86. Justice Chanda observed that when a delegatee exercises power under Section 86, they do so as an extension of the Commissioner’s authority.
The Court observed:
“An order passed by a Joint Commissioner under Section 86, pursuant to delegation, therefore assumes the character of an order of the Commissioner himself. Such an order cannot be regarded as an order of a subordinate officer under Section 6(1) once the revisional jurisdiction has been exercised.”
The Court rejected the Revenue’s argument regarding the administrative hierarchy between a Senior Joint Commissioner and a Joint Commissioner. Justice Chanda noted:
“The fact that a Senior Joint Commissioner occupies a higher administrative position than a Joint Commissioner does not alter the legal position. Both officers exercise delegated authority derived from the same superior source, namely the Commissioner. In the absence of an express statutory provision, one delegatee cannot revise or sit in appeal over the exercise of delegated power by another delegatee when such power is exercised on behalf of the Commissioner himself.”
The Court held that permitting such a course of action would create an “impermissible cycle of successive revisions,” where an order revised under Section 86 could be revised under Section 85, and potentially again under Section 86.
Justice Chanda relied on a Division Bench judgment of the Gujarat High Court in Ashwin Industries v. Deputy Commissioner of Sales Tax, Baroda (1979), which held that revisional jurisdiction cannot be re-invoked regarding the same subject matter once it has been exhausted by an officer exercising the same powers.
Decision
The High Court concluded that the order passed by the Senior Joint Commissioner on January 7, 2015, could not be sustained as Section 85 does not authorize the revision of an order which, in law, is deemed to be an order of the Commissioner.
Dismissing the review application, the Court stated:
“Accordingly, it must be held that an order passed under Section 86 by a Joint Commissioner acting as a delegatee of the Commissioner cannot be subjected to further revision under Section 85 by a Senior Joint Commissioner.”
The Court clarified that the dismissal of the review application does not preclude the Revenue from taking recourse to other legal remedies to challenge the order of the Senior Joint Commissioner.
Case Details:
- Case Title: Sales Tax Officer, Barasat Charge and Others vs. Sanjay Sur and Another
- Case No: R.V.W.O No.5 of 2024 with I.A. No. G.A. 2 of 2024
- Coram: Justice Kausik Chanda
- Counsel for Petitioners: Mr. Md. T. M. Siddiqui, Sr. Adv., Mr. Tanoy Chakraborty, Adv., Mr. Saptak Sanyal, Adv.
- Counsel for Respondents: Mr. Prabhat Kr. Singh, Adv., Mr. Prashant Kr. Singh, Adv.
