2007 PLP (Trib (PTD)

CH. FARRUKH MAHMUD, MEMBER (JUDICIAL).

This appeal has been directed against the order dated 28-6-2005 passed by the learned Collector.

2. The instant appeal was filed on 16-11-2006. There is an office objection that the appeal is barred by time. It is submitted on behalf of the respondent that the appeal could be filed within 60 days from the date of order i.e. till 28-8-2005 whereas the same has been filed on 16-11-2006. On the other hand, the learned counsel appearing on behalf of the appellant submits that no copy of the impugned order was received by the appellant and no notice for hearing was issued by the learned Collector. However, for re-hearing the appellant received a notice for 6-10-2006 he, therefore, applied for copy of the impugned order which was received on 8-11-2006. Whereafter; the instant appeal was filed hence, the appeal from the date of receipt of impugned order may be treated to have been filed within time. The appellant has tiled an application for condonation of delay and also filed an affidavit in support of the contention and grounds raised in the said application. There is no rebuttal of the said contention. The application for condonation of delay is, therefore, accepted and the appeal is treated to have been filed within time from the date of receipt of the impugned order.

3. The learned counsel appearing on behalf of the appellant submits that the impugned order dated 28-6-2005 passed by the learned Collector is not in accordance with the provisions contained in section 45-A(4) of the Sales Tax Act, 1990. It is, .therefore, prayed that the order may be declared illegal.

4. To appreciate the contention raised by the appellant, it is necessary to examine section 45A(4) of the Sales Tax Act, 1990 which reads as under:

"45A(4) 'The Collector may, suo motu, call for and examine the record of any proceeding under this Act or the rules made thereunder for the purpose of satisfying himself as to the legality or propriety of any decision or order passed by an officer of Sales Tax subordinate to him, and pass such order as he may deem fit."

5. The learned counsel has specifically stressed on the following orders used in the above said section:

"for the purpose of satisfying himself as to the legality or propriety of any decision or order passed by an officer of the Sales Tax subordinate to him. "

6. It is pointed out that in the impugned order the words used are as under:

"Order-in-Original No.298/03 dated 23-8-2003 is re-opened to adjudge its legality and propriety."

7. It is vehemently argued that the learned Collector has erred in understanding the law. He has reopened the case to adjudge its legality and propriety whereas he should have first adjudged the legality and propriety of the decision/order and after satisfying himself, the .learned Collector was competent to re-open the case.

8. On the other hand, the representative of the respondent submits that the Collector had ample powers to look into the matter and after examining the Collector may pass-any order which he deems fit. 8A. After hearing both the parties, it is observed that no doubt, the Collector has ample powers to call for and examine the record and to pass any order as he may deem fit but for that purpose the Collector is bound to first satisfy himself as to the legality or propriety of the decision/order made by any officer subordinate to him. In the instant case, the impression from the impugned order appears that the learned Collector had reopened the case in order to adjudge its legality and propriety which is against the very spirits of the provisions contained in section 45A('4) of the Sales Tax Act; 1990.

9. In view of the above discussion, the impugned order is not sustainable and the same is, therefore; set aside. The appeal stands accepted. C.M.A./93/Tax(Trib.) Appeal accepted.