Khimijibhai Mills v. Additional Commissioner Of Commercial Taxes, Belgaum Zone

(1.) THE division Bench, after noticing the relevant provisions of the Karnataka Sales Tax Act, 1957 (for short, "the Act") and the relevant case laws to which we would refer to a little later, has referred the following question for the opinion of a larger Bench :

"whether in accordance with the provisions of Section 22-A of the Karnataka Sales Tax Act as amended with effect from April 1, 1992 provisions to exercise any power would mean only calling for the record or passing of the order under Section 22-A adlso . "

Facts ;

(2.) S. T. AS. Nos. 42

46 of 1996 have been filed under Section 24 of the Act against the order dated March 21, 1996, passed in ZAC. SMR. 64/b-28/1995-96 on the file of the Additional commissioner of Commercial Taxes, Belgaum Zone, Belgaum, nullifying the appeal order No. DC. AP. BG. KST. 496, 497, 498, 499 of 1989-90, 38, 39 and 40 of 1991-92 dated October 31, 1991 passed by the then Deputy Commissioner of Commercial Taxes (now JCCT) (Appeals), belgaum and restoring the assessment orders dated August 31, 1989 for the years 1985-86 and 1986-87 and orders dated January 7, 1991 for the assessment years 1987-88, 1988-89 and 1989-90 of the then Commercial Tax Officer (now Assistant Commissioner of Commercial taxes) II Cr. , Belgaum, respectively.

(3.) S. T. As. Nos. 47

49 of 1996 are also filed under Section 24 of the Act against the order dated march 21, 1996, passed in ZAC. SMR. 59 of 1995-96 on the file of the Additional commissioner of Commercial Taxes, Belgaum, nullifying the appeal Order No. DC. AP. BG. KST. 870, 871 of 1989-90 KST. 41, 42 and 43 of 1991-92 dated October 28, 1991, of the then d. C. C. T. (now J. C. C. T.) (Appeals), Belgaum, and restoring the assessment orders dated January 7, 1991 for the assessment years 1987-88 and 1988-89 passed by the C. T. O. (now A. C. C. T.), II cr. , Belgaum, and assessment orders dated March 31, 1989 for the period from June 1, 1986 to november 2, 1986, passed by the then C. T. O. (now A. C. C. T.), II Circle, Belgaum, dated March 31, 1989.

(4.) APPELLANTS being aggrieved by the orders passed by the Additional Commissioner in exercise of his powers under Section 22-A of the Act revising the orders of the first appellate authority, have come up in appeal before this Court, inter alia, on the ground that the orders passed by the revisional authority were beyond the period of limitation prescribed in the said section. According to the appellants, the revisional authority was required to pass the orders under section 22-A within four years of the passing of the orders sought to be revised.

(5.) IT was not disputed before the division Bench that the revisional authority had initiated the proceedings within a period of four years. We have examined the records as well and on perusal of the same, we are satisfied that the proceedings had been initiated within the period of four years, but, final orders were passed beyond the period of four years of the passing of orders sought to be revised.

(6.) AGAINST the assessment framed by the assessing authority, the Revenue does not have the right to file an appeal. In order to protect the rights of the Revenue, the Legislature has conferred power on the assessing authority to assess or reassess the escaped turnover under Section 12-A within a period of eight years from the expiry of the year to which the tax relates ; under Section 21 revisional powers have been conferred on the Joint Commissioners on his own motion to call for and examine the record of any order passed or proceedings recorded under the provisions of the Act by an officer not above the rank of the Deputy Commissioner for satisfying himself as to the legality or propriety of such proceedings in so far as it is prejudicial to the interest of the revenue and pass such order with respect thereto as he thinks fit ; under Section 22-A (1) and (2)respectively revisional powers have been conferred on the Additional Commissioner and commissioner against the orders mentioned in those sub-sections to call for and examine the record of any proceedings on their own motion if the Additional Commissioner/commissioner considers that any order passed therein by any officer sub-ordinate to him is erroneous and in so far as it is prejudicial to the interest of the Revenue, can stay the operation of such order, for such time as deemed fit, and after giving the assessee an opportunity of being heard and after making or causing such enquiry as 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 or directing a fresh assessment. Sub-section (3) prescribes the period of limitation within which the powers conferred on them can be exercised.

(7.) IN order to decide the question referred, it would be necessary to refer to the history of legislative amendments of Section 22-A from time to time. The legislative amendment from time to time have been :

"1-4-1964 to 31-12-1967 (Act 9 of 1964) : (2) No order shall be made under Sub-section (1), after the expiry of four years from the date of the order sought to be revised. Explanation.

In computing the period of limitation for the purposes of Sub-section (2), any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. "

1-1-1968 to 31-3-1992 (Act 16 of 1967) :

"22-A, Revision by the Commissioner or the Joint Commissioner of orders prejudicial to revenue.

(1) The Commissioner or the Joint Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any officer subordinate to him is erroneous in so far as it is prejudicial to the interests of the revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order 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) The power under Sub-section (1) shall be exercisable only within a period of four years from the date of the order sought to be revised was passed. Explanation.

In computing the period of limitation for the purposes of Sub-section (2), any period during which any proceeding under this section is stayed by an order of injunction of any court shall be excluded. From 1-4-1992 (Act 4 of 1992) : 22-A. Revisional powers of Joint Commissioner and Commissioner.

(I) The Joint commissioner may on his own motion call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by any officer who is not above the rank of a Deputy Commissioner, is erroneous in so far as it is prejudicial to the interest of the revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment or directing a fresh assessment.

(2) The Commissioner may on his own motion call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any officer subordinate to him is erroneous in so far as it is prejudicial to the interest of the Revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment or directing a fresh assessment.

(3) The Joint Commissioner or the Commissioner shall not pass any order under Sub-section (1)or Sub-section (2), as the case may be, if, (a) the time for appeal against the order has not expired ; (b) the order has been made the subject-matter of an appeal under Section 20 or Section 22 or of a revision in the High Court ; or (c) more than four years have expired after the passing of the order sought to be revised.

(4) Notwithstanding anything contained in Sub-section (3), the Joint Commissioner or the commissioner, may pass an order under Sub-section (1) or (2), as the case may be, on any point which has not been raised and decided in an appeal or revision referred to in Clause (b) of sub-section (3). . . . . . . . . . . . . . . . . "

(8.) BY Karnataka Act 5 of 1993, Sub-section (3) of Section 22-A was again amended. It was made retrospective in operation with effect from April 1, 1992. The amended Section 22-A with effect from April 1, 1992 reads :

"22-A. Revisional powers of Additional Commissioner and Commissioner.

(1) The Additional commissioner may on his own motion call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by any officer who is not above the rank of a Joint Commissioner, is erroneous in so far as it is prejudicial to the interest of the revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment or directing a fresh assessment.

(2) The Commissioner may on his own motion call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any officer subordinate to him is erroneous in so far as it is prejudicial to the interest of the Revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment, or directing a fresh assessment.

(3) The Additional Commissioner or the Commissioner shall not exercise any power under sub-section (1) or Sub-section (2), as the case may be, if,- (a) the time for appeal against the order has not expired ; (b) the matter has been subject to an appeal under Section 22 or of a revision in the High Court ; or (c) more than four years have expired after the passing of the order sought to be revised. (Emphasis supplied). . . . . . . . . . . . . .

(9.) A perusal of the legislative amendment of Section 22-A would indicate that from April 1, 1964 to December 31, 1967 the words of Sub-section (2) were "that no order shall be made under Section 22 (1) after expiry of four years from the date of the order sought to be revised". From January 1, 1968 to March 31, 1992 the words were "that the power under Sub-section (1)shall be exercisable only within a period of four years from the date of the order sought to be revised". By Act 4 of 1992 with effect from April 1, 1992 the words of Sub-section (3) were "that the Joint Commissioner or Commissioner shall not pass any order under Sub-section (1) as the case may be, if more than four years has expired after the passing of the order sought to be revised". By Act 5 of 1993 with effect from April 1, 1992 the Legislature has again reverted back to the words "exercise of power". But, instead of using the words "exercisable within a period of four years" has used the words "shall not exercise any power", if more than four years have expired after the passing of the order sought to be revised. At times, the exercise of power has been referable to the passing of the order, whereas at some point of time, as at present, the exercise of power is referable not to the passing of the order but to the exercise of the power to revise the orders. A debate has been going on in the courts from time to time as to whether exercise of power would be relatable to the initiation of the proceeding or to the passing of the final order. So long as the words used were that the authorities shall not pass an order after expiry of four years, reference could be to the passing of final order. Whereas in the case of exercise of power by calling for the record could be relatable to the initiation of proceedings. (Emphasis supplied).

(10.) THIS point was examined for the first time by the Karnataka High Court (successor to High court of Mysore) in the case of S. Subba Rao v. Commissioner of Commercial Taxes in Mysore, bangalore [1967] 19 STC 257. [LQ/KarHC/1966/119] In the said case, a division Bench while examining the powers of the Commissioner under Section 21 (2) of the Mysore Sales Tax Act, 1957, which is in pari materia to Section 22-A which is under consideration before us, it was held that when the case records therein are called for within the period mentioned in Section 21 (3) of the Mysore Sales tax Act, then the question of limitation for passing the final order did not arise. It was held that the expression "shall be exercisable" found in Section 21 (3) of the Mysore Sales Tax Act refers to the commencement of exercise of power referred to therein and not to the completion of exercise of that power. While examining the scope of the powers of the Commissioner under section 21 (2) it was held :

"is the exercise of that power merely means passing of an order which he thinks fit The power conferred on the Commissioner under Section 21 (2) as could be gathered from its language includes three different facets, viz. , (1) calling for the records mentioned therein, (2) examination of those records, and (3) passing such orders, with respect thereto as he thinks fit. The commissioner begins to exercise his power under Section 21 (2) as soon as he calls for the records in question and the exercise of that power comes to an end when he passes an order in respect thereto. All that Section 21 (3) says is that the power conferred under Section 21 (2) is exercisable within four years from the date of the order of assessment, that is proposed to be revised. As mentioned earlier, the exercise of the power under Section 21 (2) commences as soon as the records mentioned therein are called for. If that act is done within the period mentioned in section 21 (3), then no question of limitation arises. Mr. Srinivasan is not right in his contention that the powers of the Commissioner to call for the records, to examine them and to pass such orders as he thinks fit are three independent powers and all those powers should be exercised within the time fixed in Section 21 (3). They are all facets of one single power, namely, the power to revise and that power is exercisable within the time mentioned in Section 21 (3). We are also unable to agree with Mr. Srinivasan that the power to call for the records under section 21 (2) is not a part of the quasi-judicial power of the Commissioner to revise the orders of his subordinates. The power to call for the records is a part of the revisional power of the commissioner. The expression shall be exercisable found in Section 21 (3) refers to the commencement of the exercise of the power referred to, and not the completion of the exercise of that power. Like all periods of limitation, Section 21 (3) also refers to initiation of the proceedings and not its completion. "

(11.) THIS judgment was later on followed in Busunur Industries v. State of Karnataka [1986] 61 stc 123 (Kar) [LQ/KarHC/1985/74] . In this case their Lordships were considering the powers under Section 22-A (2)of the Act. Following the decision in the case of Subba Rao [1967] 19 STC 257. [LQ/KarHC/1966/119] (Mys) it was held :

"in this case the court has ruled that the period of limitation of four years under Section 21 (3) of the Act as it stood then, which corresponds to Section 22-A (2) of the Act should be reckoned from the date the records were called for and not from the date the order was made by the commissioner (sic). We are of the view that this ruling is a direct authority on the very question urged before us and we are bound by the same. 13. We have carefully read the language of Section 21 (3) of the Act that is analogous to Section 22-A (2) of the Act and the above ruling. We are of the view that the said ruling is in accord with the language of Section 22-A (2) of the Act. We are of the view that the explanation added to section 22-A (2) of the Act to exclude the period occupied by injunctions and stay orders on which reliance is placed by Sri Srinivasan to urge as additional ground for reconsideration of subba Raos case [1967] 19 STC 257 (Mys) does not shed any light on the construction of section 22-A (2) of the Act at all. We do not find any good ground to doubt the correctness of the ruling in Subba Raos case [11967] 19 STC 257 (Mys) and refer the same to a larger Bench. " (Emphasis supplied).

(12.) THE matter was again considered by a division Bench of this Court in Keshawa Trading company v. Commissioner of Commercial Taxes, Bangalore [1986] 62 STC 102. While following the earlier two judgments referred to above, their Lordships dismissed the appeal filed by the assessee. In this case, the Deputy Commissioner forwarded the records of his office to the commissioner of Commercial Taxes, in exercise of the powers under Section 22-A of the Act. Records were received by the Commissioner on March, 23, 1977. Office of the Commissioner prepared a note which read as under : "the above cases may lie over till the Supreme Courts decision in B. R. Shettys AIR1981 SC 1206 , 1981 (1)SCALE571 , (1981)2 SCC564 , [1981 ]3 scr280 , [1981 ]47 STC369 (SC), 1981 (13)UJ361 (SC) case is received as we cannot initiate action under Section 22-A for the present. " this note was approved by the Commissioner on July 8, 1977. The Supreme Court decided B. R. Shettys case AIR1981 SC 1206 , 1981 (1)SCALE571 , (1981)2 scc564 , [1981 ]3 SCR280 , [1981 ]47 STC369 (SC), 1981 (13)UJ361 (SC) and the same is reported as State of Karnataka v. B. Raghurama Shetty [1981] 47 STC 369. [LQ/SC/1981/179] Thereafter, the commissioner issued show cause notice on May 27, 1981 purporting to exercise of power under section 22-A (2) of the Act. The assessees contention was that the exercise of powers by the commissioner was beyond the period of limitation prescribed and therefore the notice issued by the Commissioner was illegal and therefore required to be quashed. As against this, the contention of the Revenue was that the note was placed before the Commissioner and the commissioner took the decision as per departmental note extracted above. That the commissioner could be stated to have initiated action in exercise of power conferred upon him by that action and therefore notice was not barred by limitation. High Court did not accept the contention of the assessee that the initiation of proceedings was beyond the prescribed period of limitation. Following the decisions in Subba Raos case [1967] 19 STC 257 (Mys) and Busunurs case [1986] 61 STC 123 (Kar) [LQ/KarHC/1985/74] it was held that the Commissioner had initiated the proceedings when he examined the records sent by the Deputy Commissioner, but, decided to await the decision of the Supreme Court in B. R. Shettys case AIR1981 SC 1206 , 1981 (1)SCALE571 , (1981)2 SCC564 , [1981 ]3 SCR280 , [1981 ]47 STC369 (SC), 1981 (13)UJ361 (SC). The appeal filed by the assessee was dismissed.

(13.) ASSESSEE being aggrieved by the judgment of this Court, carried a further appeal to the supreme Court. Special leave was granted. The apex Court reversed the order of the High Court on this point. Accepting the contention of the assessee and rejecting that of the Revenue, it was held as follows :

"6. This stand of the Revenue is not correct for the simple reason that the note extracted earlier clearly suggests that no action was initiated under Section 22-A as the judgment of this Court was awaited in B. R. Shettys case [1981] 47 STC 369 [LQ/SC/1981/179] which was pending in this Court. Hence it was not possible to initiate any action under Section 22-A for the present. The words we cannot initiate action under Section 22-A for the present leave no room for doubt that no action was initiated and, therefore, it was not correct to state in the show cause notice that since the records had been received for examination on March 23, 1977 the action under Section 22-A must be taken to have been initiated on that date. It is also pertinent to note that the facts clearly show that it was the Deputy Commissioner who forwarded the records to the Commissioner on March 18, 1977 and the records were received by the Commissioner on March 23, 1977. Thereafter, the commissioner had to make up his mind whether or not he considered it necessary to initiate action under Section 22-A of the Act. In this behalf he accepted the suggestion in paragraph 3 of the departmental note extracted earlier and agreed that he could not initiate action under Section 22-A since this Courts decision in B. R. Shettys case [1981] 47 STC 369 [LQ/SC/1981/179] was awaited. Whether he was right in doing so or not is not relevant but it is obvious that he did not initiate any action even after the receipt of the records for the reason mentioned in paragraph 3 of the departmental note. We have, therefore, no hesitation in coming to the conclusion that the reason trotted out in the show cause notice for saving the action from being barred by limitation has no basis and cannot stand judicial scrutiny. We are, therefore, of the opinion that the conclusion reached by the High Court in the impugned decision in this behalf is clearly erroneous. " [a. Vaikuntappa setty and Co. v. Commissioner of Commercial Taxes [1999] 112 STC 647 (SC)]. (Emphasis supplied).

(14.) THEREAFTER, the matter was again examined by this Court in the case of Satyanarayana engineering Works v. Assistant Commissioner of Commercial Taxes, Davanagere [1999] 112 stc 578. Counsel appearing for the assessee in the said case had raised the contention that supreme Court in A. Vaikuntappa Settys case [1999] 112 STC 647 [LQ/SC/1996/1596] , had overruled the view taken by this Court in Subba Raos case [1967] 19 STC 257 (Mys.). The division Bench after examining the earlier judgments of this Court in Subba Rao case [1967] 19. STC 257 [LQ/KarHC/1966/119] (Mys.), busunur Industries case [1986] 61 STC 123 [LQ/KarHC/1985/74] and Keshawa Trading Company [1986] 62 STC 102 and the judgment of the Supreme Court in A. Vaikuntappa Settys case [1999] 112 STC 647 [LQ/SC/1996/1596] , rejected the contention of the counsel for the assessee that the Supreme Court had overruled the view of this Court to the effect that exercise of revisional power under Section 22-A was relatable to initiation of proceedings for revising the order by calling for the record only and not to the passing of the final order revising the order sought to be revised. It was held that the supreme Court had accepted the plea of the assessee on a limited point and did not decide on the larger question which had been decided in S. Subba Raos case [1967] 19 STC 257 (Mys) and busunur Industriess case [1986] 61 STC 123 (Kar) [LQ/KarHC/1985/74] . The contention of the counsel for the assessee that the Supreme Court took a different view and reversed the view taken by this Court was not accepted. It was held :

"10. A perusal of the observation of the Supreme Court shows that what was held was that after the receipt of the records, the Commissioner did not initiate the action and postponed the same till the decision in B. R. Shettys case AIR1981 SC 1206 , 1981 (1)SCALE571 , (1981)2 SCC564 , [1981 ]3 SCR280 , [1981 ]47 STC369 (SC), 1981 (13)UJ361 (SC). Without going into the question as to whether the Commissioner was right in postponing the decision and awaiting the decision of the Supreme Court in B. R. Shettys case AIR1981 SC 1206 , 1981 (1)SCALE571 , (1981)2 SCC564 , [1981 ]3 scr280 , [1981 ]47 STC369 (SC), 1981 (13)UJ361 (SC), it was held that for the reasons given in the show cause notice, the limitation for initiating the proceedings was not saved. The finding recorded by the High Court on the point of law was not reversed. The reversal was on a point of fact relating to the interpretation to be placed upon the orders passed by the Commissioner postponing the initiation of proceedings to await the decision of the Supreme Court in B. R. Shettys case AIR1981 SC 1206 , 1981 (1)SCALE571 , (1981)2 scc564 , [1981 ]3 SCR280 , [1981 ]47 STC369 (SC), 1981 (13)UJ361 (SC). "

(15.) COUNSEL appearing for the assessee in Satyanarayana Engineering Works case [1999] 112 stc 578 (Kar) relying upon a judgment of the Andhra Pradesh High Court in State of Andhra pradesh v. Toshiba Anand Batteries Ltd. [1995 ]96 STC664 (AP) in which their Lordships differed with the opinion expressed in Subba Raos case [1967] 19 STC 257 (Mys.) and Busunur Industries case [1986] 61 STC 123 (Kar) [LQ/KarHC/1985/74] , had contended that the matter be referred to a larger Bench for consideration. This contention was also rejected by observing thus :

". . . . . . . . . . . . . . . . . . . . We do not agree with the suggestion made by the counsel. Three different division benches of this Court have examined this point at different point of time and came to the same conclusion. Simply because another High Court has taken a different view by itself is no reason to reconsider the view taken by this Court. Otherwise, with due respect to the honourable Judges of the Andhra Pradesh High Court, we do not agree with the reasoning adopted by them. The conclusion arrived at by them are against the plain language of the statute. Reliance was placed on State of Andhra Pradesh v. M. Ramakishtaiah and Co. [1994] 93 STC 406 (SC) to come to the conclusion that the proceedings must conclude within four years from the date of passing of the order in revision. With respect, we say that the conclusion drawn by them from this judgment, is again on a wrong premises. Apex Court upheld the order of the High Court which was under challenge in the said case by affirming the finding recorded by the High Court that the order passed by the Deputy Commissioner was not made on the date it purported to have been made and the same could have been made after the expiry of the period of four years. There is no finding in this judgment that the proceedings can either be initiated by issuing a notice within four years of the passing of the order sought to be revised or that the proceedings must conclude within four years of the passing of the order which was sought to be revised. Relying upon the view taken by this Court in the earlier judgments and for the reasons stated above, we do not find any merit in this appeal and dismiss the same with no order as to costs. "

(16.) SRI Gandhi, learned counsel appearing for the appellants, relying upon the judgment of the andhra Pradesh High Court in Toshiba Anand Batteries Ltd. case [1995] 96 STC 664 [LQ/TelHC/1994/471] and a subsequent judgment of the same High Court in Hyderabad Wire and Allied Products v. Commissioner of Commercial Taxes [1999] 115 STC 286 and the judgments of the Supreme court in State of Andhra Pradesh v. M. Ramakishtaiah and Co. [1994] 93 STC 406 [LQ/SC/1994/240] in which the judgment of the Andhra Pradesh High Court has been upheld and in A. Vaikuntappa Setty and co. v. Commissioner of Commercial Taxes, Bangalore [1999] 112 STC 647 (SC), in which the judgment of this Court in Keshawa Trading Co. [1986] 62 STC 102, was reversed, argued that the division Bench judgments of this Court in Subba Raos case [1967] 19 STC 257 (Mys.), busunur Industries case [1986] 61 STC 123 [LQ/KarHC/1985/74] and Satyanarayana Engineering Works case [1999] 112 STC 578 require reconsideration. According to him the view taken by the Andhra Pradesh high Court is the correct enunciation of law as the judgment of Andhra Pradesh High Court has been upheld by the Supreme Court whereas the judgment of this Court in Keshawa Trading companys case [1986] 62 STC 102, has been reversed. In substance, the argument is on the same lines as that of the counsel for the assessee in Satyanarayana Engineering Works case [1999] 112 STC 578 (Kar).

(17.) WE have given our anxious consideration to the arguments raised by Mr. Gandhi but are unable to persuade ourselves to agree with the same. Legislative amendments of Section 22-A from 1964

1992 would indicate that the Legislature has been using two types of phraseology at different points of time. From January 1, 1964 to December 31, 1967 the words were "no order shall be made". . . . . . . . . "after the expiry of four years from the date of the order sought to be revised". From January 1, 1968 to December 31, 1992 the words used were ". . . . . . . . . . . . . the power under Sub-section (1) shall be exercisable only within a period of four years from the date of the order sought to be revised was passed". From April 1, 1992 the Legislature reverted back to the words which were in operation from January 1, 1964 to December 31, 1987 and provided that the Joint Commissioner or Commissioner "shall not pass any order under Sub-section (1) or sub-section (2). . . . . . . . . . . . . . . . . . . . . if more than four years have expired after the passing of the order sought to be revised". Finding that the words in the amended provisions were creating problem, the Legislature amended Section 22-A by Act 5 of 1993 with retrospective effect from April 1, 1992 and introduced the words in Sub-section (3) as ". . . . . . . . . . . . . . shall not exercise any power under Sub-sections (1) and (2). . . . . . . . . . . . . . if more than four years have expired after the passing of the orders sought to be revised". A close reading of Sub-sections (1) and (2) of Section 22-A would indicate that the Additional Commissioner or Commissioner, as the case may be, on his own motion, can call for and examine the records of any proceedings under the Act, if he considers that any order passed by any officer subordinate to him is erroneous and prejudicial to the interest of the Revenue. Firstly, the power that can be exercised is to call for and examine the records ; secondly, if necessary, to stay the operation of such order for such period as he deems fit ; thirdly, after giving 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. These three powers were described in Subba Raos case [1967] 19 STC 257 (Mys.) to be the three facets of the same power. The Commissioner exercises his power to revise the order of the subordinate authority as soon as he calls for the record of the proceedings of the subordinate authority. Limitation prescribed in the section is for initiation of the proceedings to revise and not to the passing of the final order revising the order of the subordinate authority. All that section 22-A (3) says is that power conferred under Section 22-A (1) and (2) is exercisable within four years from the date of the order of assessment that is proposed to be revised. Exercise of the power commences as soon as the records are called for. If that act is done within four years, the jurisdiction vests in the revisional authority to revise the order of subordinate authority. Section 22-A does not put a limitation on the revisional authority to pass the final order within a specified period. Contention that power of the Additional Commissioner/commissioner to call for the records, to examine them and to pass such order as he thinks fit are three independent powers and all those powers should be exercised within the time fixed under Section 22-A (3) of the Act cannot be accepted. It becomes unworkable. For example, if the revisional authority calls for the records a month prior to the expiry of the period of four years, then the revisional authority cannot be expected to conclude the proceedings and pass a final order within one month after affording due opportunity to the assessee. This is not the intention of the Legislature. Whenever the Legislature had that intention, Legislature expressed it by saying that no order under Section 22-A shall be made after the expiry of four years. Instead, the Legislature has now used the words exercise the powers under Sub-sections (1) and (2) within a period of four years which means that initiation of proceedings has to be within a period of four years. Calling for records, examining them and passing such orders as deemed fit have rightly been held to be the facets of one single power, namely, the power to revise. Additional Commissioner/ commissioners power to call for records, examine them, and to pass such orders as he thinks fit are facets of the one single power, namely, the power of revision as held in Subba Raos case [1967] 19 STC 257 (Mys.).

(18.) WE respectfully approve the reasoning adopted by this Court in Subba Raos case [1967] 19 stc 257 [LQ/KarHC/1966/119] (Mys.) and the subsequent case in Busunur Industries case [1986] 61 STC 123. [LQ/KarHC/1985/74]

(19.) IN so far as the judgment of the Supreme Court in A. Vaikuntappa Setty and Co. s case [1999] 112 STC 647 [LQ/SC/1996/1596] , reversing the decision of this Court in Keshawa Trading Companys case [1986] 62 STC 102, is concerned, it has rightly been held in Satyanarayana Engineering Works case [1999] 112 STC 578 (Kar) that the Supreme Court had accepted the plea of the assessee in that case on a limited point and did not go into the larger question which has been decided by this court in Subba Raos case [1967] 19 STC 257 (Mys.). We do not accept the contention that the judgment of the Supreme Court referred to above took a different view and indirectly reversed the larger question decided in Subba Raos case [1967] 19 STC 257 (Mys) that, that the limitation prescribed under Section 22-A is for initiating the proceedings by sending for the records within four years from the passing of the order sought to be revised and not to the passing of the final orders within four years from the passing of the order sought to be revised. Relevant observation of the Supreme Court in A. Vaikuntappa Setty and Co. s case [1999] 112 stc 647 [LQ/SC/1996/1596] has already been extracted in the earlier part of the judgment. A perusal of the observation of the Supreme Court shows that what was held was that after the receipt of the records, the Commissioner did not initiate the action but postponed the decision till the decision in B. R. Shettys case AIR1981 SC 1206 , 1981 (1)SCALE571 , (1981)2 SCC564 , [1981 ]3 SCR280 , [1981 ]47 STC369 (SC), 1981 (13)UJ361 (SC). It was held that for the reasons given in the show cause notice, the limitation for initiating the proceedings was not saved. The finding recorded by the High Court on the point of law was not reversed. The reversal was on the point of fact relating to interpretation to be placed upon the orders passed by the Commissioner postponing the initiation of proceedings to await the decision of the Supreme court in B. R. Shettys case AIR1981 SC 1206 , 1981 (1)SCALE571 , (1981)2 SCC564 , [1981 ]3 SCR280 , [1981 ]47 STC369 (SC), 1981 (13)UJ361 (SC).

(20.) WE do not agree with the view taken by the Andhra Pradesh High Court in State of Andhra pradesh v. Toshiba Anand Batteries Ltd. [1995 ]96 STC664 (AP) and hyderabad Wire and Allied Products v. Commissioner of Commercial Taxes [1999] 115 STC 286. Four division Benches of this Court have examined this point at different points of time and come to the same conclusion. Simply because another High Court has taken a different view differing with the view of this Court is no reason to take a contrary view. Otherwise also, we do not agree with the reasoning adopted by the Andhra Pradesh High Court. The conclusions arrived at by the Andhra Pradesh High Court are against the plain language of the statute. Reliance upon the decision of the Supreme Court in State of Andhra Pradesh v. Ramakishtaiah and co. [1994] 93 STC 406 [LQ/SC/1994/240] , to come to the conclusion that the proceedings must conclude within four years from the date of passing of the order under revision, is also not correct. With respect, we may say that the said conclusion arrived at is on a wrong premise. The apex Court had upheld the order of the Andhra Pradesh High Court under challenge in the said case by affirming the findings recorded by the High Court that the order passed by the Deputy Commissioner was not made on the date it was purported to have been made and the same could have been made after the expiry of four years. There is no finding in the said judgment that the proceedings have to be concluded by passing the final order within a period of four years of the passing of the order sought to be revised. We respectfully differ with the view expressed by the Andhra Pradesh High court in Toshiba Anand Batteries case [1995 ]96 STC664 (AP) and hyderabad Wire and Allied Products case [1999] 115 STC 286.

(21.) ON the reading of Section 22-A a situation could be envisaged where the revisional authority could delay unreasonably or postpone indefinitely the passing of the final order after initiating the proceedings for revision thereby keeping the assessee in a suspended animation and keeping the damocles sword hanging over his head, which could work to the assessees detriment and prejudice. Arising of such a situation has now been remedied by the Legislature by introducing section 22-B in the Act by Act No. 7 of 1997. It provides that the authorities in exercise of their jurisdiction under Sections 12-A, 21 and 22-A of the Act shall pass the orders referred to in the said sections within a period of three years from the date of initiation of such proceedings or calling for the records as the case may be. Section 22-B reads thus :

"22-B. Limitation in regard to passing of orders in respect of certain proceedings.

(1)Notwithstanding anything contained in Sections 12-A, 21 and 22-A, where any proceedings are initiated under Section 12-A or any records have been called for under Section 21 or 22-A, the authorities concerned shall pass orders referred to in the said sections, within a period of three years from the date of initiation of such proceedings or calling for the records, as the case may be : provided that in respect of proceedings initiated or records called for before the date of commencement of the Karnataka Taxation Laws (Amendment) Act, 1997, orders shall be passed within a period of four years from such commencement. (2) In computing the period specified in Sub-section (1), the period during which a proceeding has been deferred on account of any stay granted by any court or any other authority shall be excluded. "

(22.) APART from remedying the legitimate grievance of an assessee that he could not be kept under suspended animation by postponing the decision indefinitely, the Legislature has provided an answer to the question itself. Legislature has made its intention clear and known. By providing a period of three years for the authorities to pass the final order referred to in sub-sections (1) and (2) of Section 22-A of the Act from the date of calling for the records, the legislature has made it clear that Section 22-A deals with initiation of proceedings within a period of four years by calling for the records, whereas Section 22-B provides a limitation to conclude the proceedings initiated under Section 22-A within a period of three years. Enactment of Section 22-B also indicates that the period of four years provided in Sub-section (3) of Section 22-A was for initiation of proceedings and not for conclusion of the proceedings by passing a final order as contended by Sri Gandhi, counsel for the appellants. If the intention of the legislature was to conclude the proceedings within a period of four years as suggested by Mr. Gandhi, then there was no purpose of enacting Section 22-B.

(23.) LOT of emphasis was laid before us that the use of the word "any" by the Legislature in sub-section (3) of Section 22-A would indicate that "any" or "all" the powers vested with the revisional authority under Section 22-A were required to be completed within a period of four years. We do not find any substance in this submission either. The words of the section are ". . . . . . . . . . . . . . shall not exercise any power" which, in the context of the situation would mean exercise of power to initiate the proceedings and not concluding the same as well. As observed in the foregoing paragraphs, the limitation for conclusion of the proceedings has now been provided by Section 22-B, introduced by Act 7 of 1997. The earlier words used by the legislature was ". . . . . . . . . . . . . . shall be exercisable only within a period of four years" and now the words used are ". . . . . . . . . . . . . . . . shall not exercise any power" which, though to be in negative form, is in substance the same. Emphasis in the earlier provision was in affirmative terms to exercise the power only within four years, whereas now the emphasis is in the negative terms by saying that the authority shall not exercise the power beyond the period of four years. There is no material difference either to the exercise of the power to revise or to the period of limitation prescribed.

(24.) FOR the reasons stated above, we reiterate the view expressed by this Court in Subba Rao case [1967] 19 STC 257 (Mys.), Busunur Industries case [1986] 61 STC 123 [LQ/KarHC/1985/74] and Satyanarayana engineering Works case [1999] 112 STC 578 and answer the question referred thus :

"that Section 22-A envisages and provides for limitation of a period of four years for initiating the proceedings by sending for the records only and would not include the passing of the final order under Section 22-A as well. "

(25.) THE division Bench had referred only the question of law to the larger Bench and not the whole case, The matter be now placed before the Division Bench as per roster for deciding the case on merits.

(26.) COSTS in the appeal shall be the cost in the reference.