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PETITIONER: THE STATE OF ORISSA

       Vs.

RESPONDENT: DABAKI DEVI AND OTHERS(And connected appeals)

DATE OF JUDGMENT: 24/10/1963

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1413            1964 SCR  (5) 253  CITATOR INFO :  R          1968 SC 843  (7)  F          1976 SC1115  (8,9,10,11)

ACT: Sales  Tax-Revision against order of assessment-Time  limit- Orissa Sales Tax Act, 1947 (Orissa 14 of 1947), ss. 12, 23.

HEADNOTE: The  respondents  were  assessed  to  sales  tax  under  the provisions  of the Orissa Sales Tax Act, 1947, by the  Sales Tax Officer, who rejected their claim to certain  deductions from  their taxable turnover, but, on appeal, the  Assistant Collector  allowed the claim.  The Collector of  Sales  Tax, however, acting under s. 23(3) of the Act revised the orders of  the Assistant Collector by raising the taxable  turnover allowed  by him to be deducted.  The respondents  moved  the High  Court of Orissa under Art. 226 of the Constitution  of India  to  quash the orders of the Collector on  the  ground that  they were illegal under the Act as they had been  made more than thirty six months after the expiry of the quarters in  respect  of which the assessments  had  originally  been made.   The  High  Court took the view that  the  orders  in revision were really reassessments under sub-s. (7) of s. 12 of the Act of turnover which had escaped assessment or  been under assessed and as such they were barred by limitation. 254 Held:(i)  The  view taken by the High  Court  that  the impugned orders were really reassessments under s. 12(7)  of the Orissa Sales Tax Act, 1947, was erroneous. (ii) (per Das Gupta and Rajagopala Ayyangar, JJ., Sarkar, J.   dissenting).  Orders of assessment made by the revising authority must be considered to be orders passed under s. 12 as well as under s. 23 of the Act and, therefore, the period of limitation prescribed in the second proviso to s. 12  (6) became applicable. Gajo   Ram  v.  State  of  Bihar,  (1955)  7   S.T.C.   248, disapproved. per Sarkar, J.-(i) The time-limit of thirty-six months pres- cribed in s. 12(7) was only for calling for a return and not for  making the order of reassessment in respect of  escaped or under assessed turnover.

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(ii)An  order  made in revision under s. 23(3) was  not  an order  of  assessment and the period of  limitation  in  the second proviso to s. 12(6) was not applicable.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 454 to 465 of 1962. Appeals  by special leave from the judgment and order  dated July  8, 1958 of the Orissa High Court in O.J.S.  Nos.  289, 296 and 300 of 1956. K.N.  Rajagopal Sastri and R.N. Sachthey, for the  appellant (In all the Appeals). Santosh Chatterjee and B. Kishore, for respondent No. 2  (In C. A. Nos. 454 to 460 of 1962) and the Respondents (In  C.A. Nos. 461 to 465 of 1962.) The  Judgment of K.C. Das Gupta and N.  Rajagopala  Ayyangar JJ., was delivered by Das Gupta J. A.K. Sarkar J.  delivered a dissenting opinion. SARKAR  J.-These  appeals  raise the  question  whether  the Orissa Sales Tax Act, 1947, sets a time limit for making  an order  under  s.  23(3)  of the Act  revising  an  order  of assessment.   The question depends on the interpretation  of some of the provisions of the Act to which reference will be made in due course. The  facts are these.  The respondents had been assessed  to sales tax under the Act in respect of various quarters by  a Sales Tax Officer.  They appealed to the Assistant Collector of Sales Tax against the 255 assessments  contending  that  the  Sales  Tax  Officer  bad wrongly  rejected  their claim to  certain  deductions  from their   taxable   turnover.   The  appeals   were   allowed. Subsequently  the Orissa High Court delivered a judgment  in another  case  from  which it appeared  that  the  Assistant Collector  was wrong in allowing the deductions.   Thereupon the Collector of Sales Tax acting under s. 23(3) of the  Act which provided that "the Collector may, upon application  or of  his  own  motion, revise any  order  passed  under  this Act...by  a  person  appointed under s.  3  to  assist  him" revised the orders of the Assistant Collector by raising the taxable turnover allowed by him to be deducted. The  respondents moved the High Court of Orissa  under  Art. 226 of the Constitution to quash the orders of the Collector in  revision on the ground that they were illegal under  the Act as they had been made more than thirty-six months  after the  expiry  of  the  quarters  in  respect  of  which   the assessments  bad originally been made.  This contention  was accepted by the High Court.  Hence these appeals. The High Court held that the orders in revision were illegal as  they  were really reassessments of  turnover  which  had escaped assessment or been under-assessed and under sub-sec. (7) of s. 12 of the Act, such reassessment could not be made in  respect of any quarter after thirty-six months from  its expiry.   It  is not in dispute that many of the  orders  in revision  bad been made after the expiry of the said  period of thirtysix months.  It seems to me that the High Court was clearly in error in basing itself on sub-sec. (7) of s.  12. The material part of the sub-section is in these terms:  "If the turnover. of a dealer for any period.has     escaped assessment or has been under-assessed,the Collector may at any time within thirty-six months of the end of that  period call  for  a return........ and may proceed  to  assess  The time-limit of thirty-six months prescribed here is only  for

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calling  for a return.  The sub-section prescribes no  time- limit for making the 256 order of reassessment in respect of escaped or underassessed turnover.   Consequently  this provision does not  make  the orders  with which these appeals are concerned, in  any  way illegal. We were then referred to the second proviso in sub-sec.  (6) of s. 12 of the Act as specifying a time limit of thirty-six months for these orders.  The sub-section is in these terms: "Any  assessment  made under this section shall  be  without prejudice to any prosecution instituted for an offence under this Act: Provided  that when the Collector has imposed a  penalty  in addition  to  the  amount assessed under  this  section,  no further  proceedings  either revenue or  criminal  shall  be taken against the dealer. 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." The  sub-section would no doubt apply if the orders made  in this  case  were orders "assessing the amount  of  tax  due" contemplated  by it.  The question therefore is what do  the words  "order  assessing the amount of the tax due"  in  the proviso  mean.   Of  course, the whole of s. 12  has  to  be considered  for  deciding the meaning of these words  and  I will presently do so. In the meantime however I may  observe that  though  s. 12 talks of assessment by  a  Collector  it includes  assessment by other officers appointed  under  the Act  to assist the Collector for under s. 17  the  Collector can   delegate  his  powers  to  such  officers,   who   are subordinate to him. I  now  turn to s. 12.  It has seven  sub-sections  each  of which  except  sub-sec.  (6)  deals  with  assessment  in  a specified  case.   Each of’ them expressly provides  for  an order of assessment being made.  The first sub-section deals with a case where the assessing officer is satisfied without hearing  the  dealer or taking evidence that the  return  is correct.  The 257 second  sub-section  covers  a  case  where  he  is  not  so satisfied  and provides for the assessment being made  after hearing  evidence.   The third sub-section concerns  a  case where  the dealer fails to attend or produce  evidence  when called upon to do so under the preceding sub-section.   Sub- section  (4)  provides  for a case when a  dealer  does  not furnish returns which he is required by the Act to do.   The fifth   sub-section  relates  to  a  case  where  a   dealer wrongfully fails to apply for registration.  The sixth  sub- section has earlier been set out.  The last and seventh sub- section  as already seen, deals with assessment of  turnover which had escaped assessment or was under-assessed. Now it does not seem to me that an order made under s. 23(3) can properly be called an order "assessing the amount of tax due"  as contemplated by the Act at all first  observe  that the only section which expressly provides for assessment  of tax  is  s.  12.  No other section refers  to  an  order  of assessment.   It would follow that an order is not an  order of  assessment  of  tax due unless it  is  made  under  this section.   Then I find that an order made under s. 23(3)  is not  described  as  an order  of  assessment.   Indeed  that subsection  deals  with an order revising  an  order  passed under   the  Act  and,  therefore,  revising  an  order   of assessment  made under s. 12.  This also supports  the  view

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that the Act does not consider such an order as an order  of assessment.  Again the same conclusion is also suggested  by sub-sec.  (2)  of  s. 23 which  says  that,  "The  appellate authority in disposing of any appeal..................  may- (a)  confirm  reduce,  enhance or  annual  the  assessment." Obviously  it is not considered that an appellate  authority makes an assessment when it confirms, enhances or reduces an assessment.  If an appellate order enhancing the  assessment is  not  considered as an assessment order,  neither  can  a similar  order passed in revision be so considered.   In  my view.  the  Act does not contemplate an order which  is  not made  under  s. 12 as an order assessing the amount  of  tax due. 258 Then  again  I think it is clear from what I  have  set  out above  that sub-secs.(1) to (5) and (7) of s. 12  deal  with original  orders of assessment as distinguished from  orders made in appeals from or by way of revision of such  original orders  or by way of review of them.  Now the first part  of sub-sec. (6) and the first proviso to it deal expressly with orders made under the section.  Therefore they do not  apply to appellate or revisional orders.  The second proviso  with which  this case is concerned no doubt contains  no  express reference  to assessment under the section but it  would  be strange  if that proviso was intended to apply to orders  of assessment  made in appeals or by way of revision,  assuming that such orders could properly be called orders of  assess- ment.  If it was intended to provide a period of  limitation for  an  order  in appeal or by way  of  revision  then  the provision containing it would not have been put in s. 12 nor would  the order have been described as an "order  assessing the  amount  of  tax due." It may be  that  the  time  limit specified  in the second proviso does not apply to an  order of  assessment under sub-sec. (7).  That would  not  however affect  the  question.   A recent amendment  to  s.  12  has expressly provided that the time limit in the second proviso does not apply to an order under sub-sec. (7). Lastly,  it  seems to me that if the second  proviso  in  s. 12(6) fixes a period of thirty-six months from the end of  a period  within  which an order can be made  under  s.  23(3) revising  an order of assessment in respect of that  period, the  consequence  would be so disastrous for  the  tax-payer that it could not have been intended.  It would then be open to  the  Collector  to make  the  application  for  revision preferred  by a dealer against an assessment order  made  on him or against an appellate order, infructuous by the simple expedient  of allowing the thirty-six months’ time to  pass. It  is  important  to observe that  there  is  no  provision anywhere  in  the Act requiring the  revising  authority  to dispose of an application in 259 revision  filed before him within any particular  period  of time and the original order of assessment can be made at any time  within  the period of thirty-six  months.   Further  a dealer  has  no  remedy  against  any  delay  in  making  an assessment  so  long  as it is made  within  the  period  of thirty-six  months.   Therefore it is not unlikely  that  in many  cases  there  may not be much time  left  between  the filing  of  an application in revision by a dealer  and  the expiry  of  the period of thirty-six months.   If  the  time limit  specified in. the second proviso applied to an  order under  s.  23(3),  it would be open to  the  authorities  to deprive a taxpayer of his right to apply under s. 23(3).  An interpretation leading to such a result cannot be accepted. This aspect of the matter is made clearer by s. 23(1)  which

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gives  a  dealer the right to file an appeal  within  thirty days of the receipt of the order of assessment.   Obviously, if  an order in revision can be an assessment order, so  can an appellate order be.  The appellate order would then  have to  be  made within the period of thirty  six  months.   Now suppose  the period of thirty-six months expires within  the thirty days mentioned in s. 23(1), as it well may since  the order  of  assessment  can be made at any  time  within  the thirty-six months.  In such a case on the interpretation for which the respondent dealers contend, the right to file  the appeal  within the thirty days mentioned in s.  23(1)  would vanish;  there would be a conflict between s. 23(1) and  the second  proviso to s. 12(6).  An interpretation  leading  to such a result cannot be correct.  The position would be  the same in the case of an application for revision for the  Act provides  no time-,limit for making such an application  and therefore  contemplates  the making of it at any  time.   An interpretation of a provision in the Act which imposes,  not expressly  but  practically, a time limit on  the  right  to apply  ID  revision given by another provision  must  be  of doubtful  validity.   I  am  not  prepared  to  accept  that interpretation as it is neither the only interpretation  nor an interpretation which is clearly supported by the language used. 260 It  is  true that if an order in appeal or revision  can  be made at any time, the case may be kept hanging over the head of  the  dealer for a very long time at the  option  of  the authority  concerned.  This consideration however  does  not lead me to accept the view advanced by the respondents.  The calamity  and the anomaly resulting from it to which I  have earlier  referred, seems to me to be much more serious  than the inconvenience that it avoids.  Further the inconvenience imagined  seems to me to be more fanciful than real.  It  is not  likely that the authorities would deliberately keep  an appeal  or a revision application pending for no  reason  at all as that would not give them any advantage whatever. I would for these reasons allow the appeals. DAS GUPTA J.-These twelve appeals by the State of Orissa are in respect of twelve separate orders of assessment of  sales tax that were made by the Collector of Sales Tax, Orissa, in exercise of his powers of revision under s. 23 of the Orissa Sales Tax Act.  The several dealers who are the  respondents in the appeals moved the Orissa High Court under Art. 226 of the Constitution for the issue of appropriate writes direct- ing  the  State of Orissa not to collect the  amounts  which were  said to have been illegally assessed.   These  several petitions have been allowed by the High Court and the orders of assessment made by the Collector have been quashed.   The State  of Orissa has filed the present appeals ’against  the High Court’s orders on special leave granted by this Court. All the orders made by the Collector were passed later  than 36 months from the expiry of the period in respect of  which the  assessment was made.  The common question of law  which arises in these appeals is whether the High Court was  right in  holding that these orders are bad in law on  the  ground that they contravene the provisions of the second proviso to sub-s. 6 of s. 12 of the Orissa Sales Tax Act. Section  4 of the Act is the charging section and.  declares the  incidence of taxation on sales.  Section 5  deals  with the rate of tax.  It is unnecessary for 261 our present purpose to examine the provisions of ss. 6 to 10 which  deal  with the power of State Government  to  declare certain  goods as tax free goods, to exempt certain  dealers

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from  tax,  the power of the State Government  to  prescribe points at which the goods may be taxed, the registration  of dealers,  the publication of the list of registered  dealers and the matters of collection of tax by dealers.  Section 11 lays  down that such dealer as may be required to do  so  by the Collector by notice served in the prescribed manner  and every  registered dealer shall furnish such returns by  such dates  and to such authority as may be prescribed.   Section 12 of the Act, with which we are primarily concerned.  deals with  the question of assessment of tax.  In the first  five subsections  of this section the legislature has  laid  down the different modes in which assessment of tax may be  made. Under  the first sub-section the Collector shall assess  the amount  on  the  basis  of the return  furnished  if  he  is satisfied.  without requiring the presence of  a  registered dealer  or the production by him of any evidence  that  they are correct and complete.  The second and third sub-sections deal  with the case where he is not so satisfied.  In  such- cases  the Collector shall assess the amount  after  hearing such  evidence as the dealer may produce in support  of  the returns after the issue of a notice and such other  evidence as the Collector may require on specified points (sub-s. 2); if  the registered dealer fails to comply with the terms  of the  notice issued the Collector shall assess the amount  of tax  to  the best of his judgment (sub-s.3).  Sub-section  4 deals  with  the case where the registered dealer  does  not furnish returns by the prescribed date.  In such a case also the  Collector shall also assess the tax to the best of  his judgment  after  giving the registered dealer  a  reasonable opportunity  of  being heard.  Sub-section  5  provides  for assessment by the Collector of taxes due from a dealer about whom  he  is satisfied that he has been liable  to  pay  tax under the Act in respect of any period and has  nevertheless failed  to apply for registration Then comes  sub-section  6 which runs thus 262 "(6) Any assessment made under this section shall be without prejudice to any prosecution instituted for an offence under this Act: Provided  that when the Collector has imposed a  penalty  in addition  to  the  amount assessed under  this  section,  no further  proceedings  either revenue or  criminal  shall  be taken against the order: Provided  further that no order assessing the amount of  tax due  from a dealer in respect of any period shall be  passed later than thirtysix months from the expiry of such period". Sub-section  7 provides that if for any reason the  turnover of  a  dealer  has escaped assessment  or  has  been  under- assessed  the  Collector  may call for a  return  within  36 months of the end of the period in question and may  proceed to assess the amount of tax in the manner laid down in  sub- s. 5. After  the  assessment  order has been made under  s.  12  a dealer  may appeal to the prescribed authority against  such order.  This is provided by s. 23, sub-s. (1).  Then follows provisions  dealing  with  the  orders  which  an  appellate authority  might pass and with revisions which we shall  set out: "Subject  to such rules or procedure as may  be  prescribed, the  appellate authority, in disposing of any  appeal  under sub-section (1), may- (a)..confirm,  reduce,  enhance or annul the  assessment  or penalty, if any, or both or (b)..set aside the assessment or penalty, if any or both and

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direct  the assessing authority to pass a fresh order  after such further inquiry as may be directed. (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 263 motion, revise any order passed under this Act or the  rules thereunder  by a person appointed under s. 3 to assist  him, and, subject as aforesaid, the Revenue Commissioner may,  in like manner, revise any order passed by the Collector." While  nothing  as  regards the  period  within  which  such revisional  powers  may be exercised is stated in.  the  Act itself, the power is in terms made subject "to such rules as may be prescribed".  Rule 54  of the Rules made by the State Government under s. 29  of  the  Act  lays  down  that   the Collector may of    his  own motion exercise such powers  of revision within one year from the date of the passing of the order  made while the Revenue Commissioner may exercise  his powers  of  revision within one year from the  date  of  the passing of any order by the Collector. Though  in all these cases the impugned orders were made  by the  Collector of Sales Tax in purported exercise of  powers of  revision under s. 23(3), the petitioners in the  several petitions claim that the orders were in substance made under s. 12(7) of the Act.  The High Court was of opinion that  s. 12(7)  includes  also the order of assessment  made  by  the revising authority under s. 23(3) and in that view held that the  orders  of assessment passed beyond  thirty-six  months from  the  end  of the period in  question  were  barred  by limitation. The first contention urged on behalf of the State of  Orissa is that the High Court is wrong in holding that an order  of assessment  of  revising authority is necessarily  one  made under  s. 12(7).  The power of revision granted by s.  23(3) is  clearly a distinct and separate power from the power  to assess  after  calling  for  a  return  in  case  of  under- assessment  or escaped assessment.  The mere fact that in  a particular case the revising authority has by a fresh  order of  assessment made the dealer liable for tax in respect  of which he can be said to have been under-assessed or to  have escaped assessment does not make the two powers one and  the same.  We therefore find it 264 difficult  to  agree  with  the High  Court  that  s.  12(7) includes  also  the  re-assessment  made  by  the   revising authority under s. 23(3). The  question  however still remains whether  accepting  the position  that  the  orders made by  the  Collector  in  the present case were not orders under s. 12(7) they were  still orders  of assessment to which limitation prescribed by  the second  proviso  to  s. 12 (6) applied.  On  behalf  of  the appellant it is urged that the limitation prescribed in this proviso  applies only to orders of assessment made under  s. 12  and that the impugned orders were made not under  s.  12 but  under  s. 23 and so the limitation prescribed  in  this proviso does not apply to the impugned orders.  It is  worth noticing  first  of  all that what  appears  as  the  second ’proviso’   in  s.  12  (6)  has  no  connection  with   the legislative provision in the first part of the  sub-section. That  provision  which  has already beer  set  out  is  that assessment  made under s. 12 shall be without  prejudice  to any  prosecution  instituted for an offence under  the  Act. The  first  proviso is undoubtedly connected with  the  main provision.   The second proviso however contains nothing  by way  of saving or exception to that main provision.  It  has

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nothing  to do with the question of any prosecution.  If  we look at the substance of the matter, as we must, it  appears clear  that  the provision of a period of limitation  of  36 months  for the passing of an order of assessment of tax  is really  an independent legislative provision of the Act  and though it has been inserted by the draftsmen in the form  of ’a  proviso’  in  s. 12(6), it is in substance  not  a  real ’proviso’   to   the  main  provision.    That   independent legislative provision lays down that no order "assessing the amount  of tax shall be passed after the lapse of 36  months from  the expiry of the period" for which the assessment  is made.  The provision is not in terms limited only to  orders of  assessment made under s. 12 but on its language  applies to  and governs any order assessing the amount of tax  which would  manifestly include an assessment under any  provision of the 265 Act besides s. 12.  The consequence is that even if an order of  assessment made in exercise of powers of revision  under section 23 be held to be not an order Made under s. 12  this limitation  of 36 months from the expiry of the  period  for which the assessment is made will still be applicable. Mr.  Sastri  however submitted that as the  provision  under consideration  actually appears as a ’proviso’ in  s.  12(6) the  intention of the legislature was to make it  applicable to  only  those  orders  of assessment  to  which  the  main provision  which uses the words "Any assessment  made  under this  section"  related.  As the  main  provision  expressly relates  only  to orders of assessment under s.  12  it  was argued  that the period of limitation in the second  proviso was intended to govern only orders of assessment made  under s. 12. We have already set out the reasons for which we think  that this provision of limitation though it appears as a  proviso in  s.  12(6)  is  in  reality  an  independent  legislative provision, as its subject-matter has nothing whatever to  do with the main provision in s. 12(6), or the proviso to  sub- s.  6  which  precedes it. If therefore it is  in  truth  an independent  provision, unrelated to s. 12(6) we do not  see any  logic or reason for importing into it the  construction that  its operation must be confined to an assessment  under s. 12, for read by itself on any, reasonable construction it would  appear  to be a limitation imposed on  any  order  of assessment made under the Act. i.e., under any provision  of the  Act.   Assuming, however, for argument’s sake  that  it applies  only  to  orders of assessment under  s.  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  s. 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 s. 23.  But s. 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 s. 12. 266 A  close examination of the terms of s. 23 would  make  this position clear.  Let us first take the case of the powers of the appellate authority under s. 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 s. 12 and that in  that  event,  his

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right  to proceed further in the way of assessment would  be subject  to  the  limitation of 3 years  prescribed  by  the second  proviso to s. 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 cl. (a) of s. 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  reassess- ment,  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 s.  23(2) was itself the source of power to effect an assessment.  We need hardly add that what applies  to an appeal under s. 23(2) applies to  a  revision under s. 23(3), as the powers of the revising authority  and the orders it might pass are not conceived of as differ- 267 ing 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 is exercising the power which  is conferred  by s. 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 s. 12 as well as under  s.  23.   Consequently,  the  period  of   limitation prescribed in the second Proviso in S.   12(6) will in terms become applicable. But,  says Mr. Sastri, look at the anomalous  position  that will arise if this period of limitation of 36 months be held to  apply to appellate or revisional orders  of  assessment. In many cases, he rightly points out, it may happen that the original order of assessment will be made either on the last date  of the 36 months’ period or only shortly before  that. In all such cases no appellate order or revisional order  of assessment  can  possibly be made within this period  of  36 months  .  Mr. Sastri has tried to persuade us that  such  a result could not have been intended by the legislature.  So, he  says,  the legislature should be held to  have  intended that this period of limitation applies only to the  original orders  of assessment.  The obvious answer to this  argument is that if that was the intention of the legislature nothing could have been easier than to say so. It is pertinent  also to  point  out  in  this connection  that  except  for  this provision  in the second proviso to s. 12(6) the Act  itself contains  no provision as regards limitation for  orders  of assessment.   If  Mr. Sastri is right, the position  in  law would be that once an original order of assessment has  been made within this period of 36 months the appellate authority or  the revising authority may make his order of  assessment after any amount of delay.  We find it difficult to  believe that   the  legislature  while  prescribing  a   period   of

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limitation about original orders of assess- 268 ment  would  refrain  from prescribing any  such  period  of limitation  in respect of appellate or revisional orders  of assessment.   It is true that the rule-making authority  has itself prescribed in Rule 54 the period of one year from the date  of the passing of the order as the time  within  which the  Collector  or the Revenue Commissioner may of  his  own motion revise the order.  But this prescription of a  period within which the power may be exercised might not have  been made  at all or may at any time be deleted.  Even the  rule- making authority has not prescribed any period of limitation within which an appellate order of assessment can be made or the  time  within  which  the  Collector  or  the   revising authority  when  exercising revisional  jurisdiction  on  an application  by  the  dealer  must  pass  the  order.    The important  point  is  that  so far  as  the  legislature  is concerned  no  special rule for limitation  as  regards  any revisional order or appellate order had been made.  The fact that  no  period of limitation has been  prescribed  by  the legislature  itself for the passing of any order of  assess- ment 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 s. 12(6)  should apply  to all orders of assessment irrespective  of  whether they were original orders, or appellate orders or revisional orders. The difficulty pointed out by Mr. Sastri may really arise in certain cases.  It is reasonable to expect that in the large majority  of cases such a difficulty will not arise  if  the original  order of assessment is made expeditiously so  that it  will  be  possible for the appellate  authority  or  the revising  authority to act within this period of 36  months. If  in certain cases the difficulty does arise that is  not, in our opinion, a sufficient reason, in view of the  several considerations   mentioned   above,  to   think   that   the legislature intended, without saying so, that the period  of limitation  prescribed  applied only to original  orders  of assessment. 269 Mr.  Sastri  drew our attention to a decision of  the  Patna High Court in Gajo Ram v. State of Bihar’ " where construing a some what similar ’proviso in s. 10(6) of the Bihar  Sales Tax Act, 1944 that Court held that the 24 months’ period  of limitation prescribed there applied only to original  orders of  assessment.  The learned Judges appear to have been  im- pressed  by the argument that absurdity will result  if  the period of limitation for the- original orders of  assessment and orders of assessment made by the appellate or revisional authority  be  the same.  For the reasons  we  have  already mentioned,  that  argument  does  not appear  to  us  to  be convincing. We  have therefore reached the conclusion that the  impugned orders of assessment were barred by limitation, having  been made more than 36 months after the expiry of the period  for which the tax was assessed.  We-hold therefore that the High Court  was right in quashing the several orders  of  assess- ment. The appeals are dismissed with costs.  There will be one set of hearing fee for all the appeals. ORDER In accordance with the opinion of the majority, the  appeals are  dismissed with costs.  One set of hearing fee  for  all the appeals. (1)  7 Sales Tax Cases 248,

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