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Judgment
I have heard Mr. Kishore Mallya, learned Counsel for the petitioner and Smt. S. Sujatha, learned Government Pleader on behalf of the respondents.
The petitioner challenges the order passed by the 1st respondent in exercise of the power under Section 21 of the Karnataka Sales Tax Act. The assessment was completed by the 2nd respondent. Thereafter, within a period of 4 years, revision proceedings were initiated. But it was completed beyond the period of 4 years by the order impugned herein. The petitioner challenges the same on the following contentions:
The power under Section 21 exercised should be initiated and completed within a period of 4 years.
The basic factual requirements under Section 21 do not exist in the case.
As regards the first contention is concerned, I am of the view that the question is no more res integra. This Court as early as in S. Subba Rao v Commissioner of Commercial Taxes in Mysore, Bangalore, (1967)19 STC 257 (Kar.), which was followed in M/s. Keshava Trading Company and Others v Commissioner of Commercial Taxes in Karnataka, Bangalore, 1985 Kar. L.J. (Tri. Supp.) 109 (HC), has taken the view that the proceedings under Section 21 should be initiated within a period of 4 years and it is not necessary it be completed within that period. Particularly in the later decision, namely, Keshava Trading Company''s case, supra, their Lordships stated as hereunder:
"16. The term "exercisable" derived from the word "exercise" is defined as (i) "capable of being exercised, employed or enforced" and (ii) "capable of being exercised" in the Oxford English Dictionary, Vol. III, Page 401 and Webster''s Third New International Dictionary - Unabridged, Vol. I, Page 795, respectively. These very dictionaries and Words and Phrases - Permanent Edition, Vol. 15-A, define the term "exercise" as hereunder:
"5. d. To perform or practice acts of (justice, cruelty, oppression, duplicity, etc.).
e. To discharge, fulfil (functions); to exert, wield, possess (dominion, jurisdiction, etc.)."
(The Oxford English Dictionary, Vol. III, Page 402)
"(1) Exercise: 1a: the act of bringing into play or realizing in action: Exertion, use (avoid accidents by the -of foresight) (the violent....; of royal authority -T.B. Macaulay).
b. the discharge of an official function or professional occupation (-of his judicial duties).....
(2) Exercise: 1b: to carry on (an occupation) or carry out the functions of (an office)....".
(Webster''s Third New International Dictionary - Unabridged, Vol. I, Page 795)
"To exercise discretion is to choose between doing and not doing a thing, the doing of which cannot be demanded as an absolute right of the party asking it to be done. The proposition for the exercise of judicial discretion is always based on a given state of facts and addresses itself to the favour of the judge. It is not based on the right of the party seeking to have the thing done, founded in the law applicable to the facts involved, but is always an appeal ex gratia".: Alden v Hinton, 6 DC 217.
"''Exercise'' is put to action....."
(vide: Words and Phrases - Permanent Edition - Vol. 15-A, Page 356).
On these meanings that are apposite in the context, the term "exercisable" must, at any rate, mean taking action or doing something, if not doing something with which aspect, we are not concerned in these cases. On these meanings, the application of mind by the Commissioner and his decision to await the decision of the Supreme Court, clearly falls within the meaning of the term "exercisable" or "initiation" used in the two cases of this Court noticed earlier. If the Commissioner had thus initiated action within four years as ruled in Subba Rao''s case, supra and Busunur Industriesv State of Karnataka, (1986)61 STC 123 (Kar.), it is undoubtedly open to him to complete the same even after the expiry of four years".
This is a categorical pronouncement on the issue. Mr. Kishore Mallya, learned Counsel for the petitioner, invited my attention to the decision of the Khetmal Parekh and Company v State of Andhra Pradesh, (1976)38 STC 531 (AP), and that of the Kerala High Court in (1993)200 ITR 238 (Ker.) which indicates that the initiation and completion of the proceedings should be within the statutory period. Though the judgment is rendered with reference to the statute in question in (1993)200 ITR 238 (Ker.), the Division Bench of the Kerala High Court stated thus:
"We are unable to accept the above plea put forward by the Revenue. It is trite law that statutory powers must be exercised bona fide, reasonably, without negligence, and for the purpose for which they were conferred. (See Halsbury''s Law of England, Third Edition, Volume 30, Page 688, paragraph 1327). If the repository of a statutory power should exercise it reasonably, we are unable to understand the dichotomy in the said process -that the initiation of the proceedings should be within a reasonable time, but the rendering of the final order can be at any time, arbitrarily. No such distinction can be drawn. The said distinction has no legal basis to stand on. It is true that in Gwalior Rayon Silk Manufacturing (Wvg.) Company v Commercial Income-tax, (1982)134 ITR 318 (M.P.), a case which arose under the Companies (Profits) Surtax Act, a Bench of the Madhya Pradesh High Court held that, in the absence of any statutory provision prescribing any period of limitation for the completion of an assessment, it cannot be held that the assessment must be made within a reasonable time or else it would be barred by limitation. The Court referred to the decision of the Supreme Court in State of Gujarat v Patel Raghav Natha, AIR 1969 SC 1297 and S.B. Gurubaksh Singh v Union of India, (1976)37 STC 425 and held that, in those cases, what the Supreme Court held was that, for the exercise of the suo motu power of revision, the revisional authority should initiate the proceedings within a reasonable time. The Division Bench of the Madhya Pradesh High Court took the view that the said decisions of the Supreme Court cannot be an authority for the proposition that the assessment itself should be passed or completed within a reasonable time. To similar effect are the decisions of the Bombay High Court in Indian Hume Pipe Company Limited v Commissioner of Income-tax, (1991)189 ITR 683 (Bom.), and the decisions of the Madras High Court in Vijaya Production Private Limited v Commissioner of Income-tax, (1980)122 ITR 136 (Mad.) and Natarajan v Deputy Commercial Tax Officer, (1981)48 STC 193 (Mad.). We should say that, in none of these decisions, has any legal basis been given for drawing a dichotomy between initiation of proceedings and the campletion thereof. The Supreme Court has categorically held that even in the absence of a "time limit" prescribed by the statute, the repository of the power should initiate the proceedings within a reasonable time; by the same token, even for the completion of the proceedings, the same logic should apply and the final order should be passed within a reasonable time, even in the absence of a fetter in that behalf in the statute concerned. In our view, both "termini" stand on the same footing. If suo motu revisional proceedings can be invoked only within a reasonable time, by the same logic, the proceedings themselves should be rendered or passed within a reasonable time. The repository of statutory power should be reasonable, that means that Damocles'' sword should not hang endlessly at the caprice of any statutory authority".
Their Lordships were of the opinion that if the initiation is done within a reasonable time, there is no reason why the same should not be directed to be completed within the same period. But in view of the Division Bench ruling of this Court on the same subject in S. Subba Rao''s case, supra, interpreting Section 21 of the Karnataka Sales Tax Act, I do not think this Court can take a different view in the matter.
As regards the second contention is concerned, regarding the existence of factual premises as to whether the power under Section 21 of the Act can be initiated, I am of the view that this is primarily a question of fact to be examined by competent authority conferred with appellate jurisdiction. The petitioner is directed to pursue the remedy of statutory appeal under Section 22 of the Act. Without prejudice to the said right, the writ petition is dismissed.