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CHAPTER IX
APPEAL, REVISION, REFERENCE AND RECTIFICATION.
73. Appeal.
(1) An appeal from every original order, not being an order mentioned in section 74, passed under this Act or the rules, shall lie,- (a) if the order is made by a an Assistant Commissioner or Commercial Tax Officer, or any other officer sub-ordinate thereto, to the Deputy Commissioner;
(b) if the order is made by a Deputy Commissioner, to the Joint Commissioner;
(c) if the order is made by a Joint Commissioner, Additional Commissioner, or Commissioner, to the Tribunal.
(2) In the case of an order passed in appeal by a Deputy Commissioner or, as the case may be, by a Joint Commissioner, a second appeal shall lie to the Tribunal.
(3) Subject to the provisions of section 84, no appeal shall be entertained unless it is filed within sixty days from the date of communication of the order appealed against.
(4) No appeal against an order of assessment shall ordinarily be entertained by an appellate authority, unless such appeal is accompanied by satisfactory proof of payment of the tax in respect of which an appeal has been preferred: Provided that an appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order on production of proof of payment of twenty per cent of the amount of tax payable under such order.
(5) The Commissioner, on receipt of notice that an appeal against the order passed in appeal by the Deputy Commissioner or, as the case may be, by the Joint Commissioner has been preferred by the other party to the Tribunal may, within thirty days of receipt of the notice, file a memorandum of cross objection against any part of the order passed in appeal by the Deputy Commissioner or, as the case may be, by the Joint Commissioner and such memorandum shall be disposed of by the Tribunal as if it were an appeal.
(6) Subject to such rules of procedure as may be prescribed, an appellate authority may pass such order on appeal as it deems just and proper.
(7) Every order passed in appeal under this section shall, subject to the provisions of sections 75, 78 and 79, be final.
74. Nonappealable orders.
No appeal or no application for revision shall lie against,—
(a) a notice issued under this Act calling upon a dealer for assessment or asking a dealer to show cause as to why he should not be prosecuted for an offence under this Act; or Appeal. Nonappealable orders.
(b) an order of the Commissioner under sub-section (1) of section 17;
(c) an order pertaining to the seizure or retention of books of account, register and other documents; or
(d) an order sanctioning prosecution under this Act; or
(e) an interim order in the course of any proceedings under this Act.
75. Revision.
(1)Subject to the provisions, of section 74 and to any rules made there under,-
(a) the Commissioner of his own motion within three years or on an application made to him within one year from the date of any order passed by any officer appointed under section 16 to assist him, may call for and examine the record of any such order and pass such order thereon as he thinks just and proper within two years from the date of service of notice for revision;
(b) the Tribunal, on application made to it against an order of the Commissioner (not being an order passed under sub-section (2) of section 73 in second appeal or under clause (a) in revision on an application) within four months from the date of the communication of the order may call for and examine the record of any such order, and pass such order thereon as it thinks just and proper.
(2) Where an appeal lies under section 73 and no appeal has been filed, no proceedings in revision under this section shall be entertained upon application: Provided that the proceedings in revision may be entertained upon an application where the applicant satisfies the Commissioner that he had sufficient cause for not preferring an appeal against the order in respect of which an application for revision is made.
(3) No order shall be passed under this section which adversely affects any person, unless such person has been given reasonable opportunity of being heard.
(4) Where the Commissioner or the Tribunal rejects any application for revision under this section, the Commissioner or, as the case may be, the Tribunal shall record the reasons for such rejection.
76. Court-fee on appeal and application for revision. Bom XXXVI of 1959.
Notwithstanding anything contained in the Bombay Court-fees Act, 1959, an appeal preferred under section 73 and an application for revision made under section 74 shall bear a court-fee stamp of such value as may be prescribed.
77. Applications of section 4 and 12 of Limitation Act, 1963. 63 of 1963.
In computing the period laid down under sections 73, 75 and 78, the provisions of section 4 and 12 of Limitation Act, 1963 shall, so far as may be, apply. Revision. Court-fee on appeal and application for revision. Bom XXXVI of 1959. Applications of section 4 and 12 of Limitation Act, 1963. 63 of 1963.
78. Statement of case to the High Court.
(1) Any person or the Commissioner, within ninety days from the date of the communication of the order of the Tribunal, passed in appeal or revision, being an order which affects the liability of any person to pay tax, interest or penalty, or which affects the recovery from such person of any amount under section 44, may, by application in writing (accompanied, where the application is made by that person, by a fee of one hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order; and where the Tribunal agrees, the Tribunal shall, as soon as may be, after the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that if in the exercise of its power under this sub-section, the Tribunal refuses to state the case which has been required to do on the ground that no question of law arises, that person, or as the case may be, the Commissioner may, within thirty days of such refusal either withdraw his application or apply to the High Court against such refusal.
(2) If the High Court, upon receipt of an application under sub section (1), is not satisfied as to the correctness of the decision of the Tribunal, it may require the Tribunal to state the case and refer to it; and accordingly, on receipt of any such requisition, the Tribunal shall state the case and refer it to the High Court.
(3) If The High Court is not satisfied that the statements in the case referred under this section are sufficient to enable it to determine the question raised thereby, it may refer the case back to the Tribunal to make such addition thereto or alterations therein, as the High Court may direct in that behalf.
(4) The High Court upon the hearing of any such case, shall decide the question of law raised thereby, and shall deliver its judgement thereon containing the grounds on which such decision is founded, and shall send to the Tribunal a copy of such judgement under the seal of the court and the signature of the Registrar, and the Tribunal shall dispose of the case accordingly.
(5) Where a reference is made to the High Court under this section, the costs including the disposal of the fee referred to in sub-section (1), shall be in the discretion of the Court.
(6) The payment of the amount of the tax, if any, due in accordance with the order of the Tribunal in respect of which an application has been made under sub-section (1) shall not be stayed pending the disposal of such application or any reference made in consequence thereof, but if such amount is reduced as a result of such reference, the excess tax paid shall be refunded in accordance with the provisions of section 36.
79. Rectification of mistakes.
(1) The Commissioner may at any time within two years from the date of the communication of the order passed by him, to the person affected by such order, on his own motion, rectify any mistake of fact apparent from the record, and shall within a like period rectify any such mistake which has been brought to his notice by any person affected by such order : Provided that, no such rectification shall be made if it has the effect of enhancing the tax or reducing the amount of refund or tax credit, unless the Statement of case to the High Court. Rectification of mistakes. Commissioner has given notice in writing to such person of his intention to do so and has allowed such person a reasonable opportunity of being heard.
(2) The provisions of sub-section (1) shall apply to the rectification of a mistake by the Tribunal or an appellate authority under section 73 as they apply to the rectification of a mistake by the Commissioner.
(3) Where any such rectification has the effect of reducing the amount of the tax, interest or penalty, the Commissioner shall, in the prescribed manner, refund any amount due to such person.
(4) Where any such rectification has the effect of enhancing the amount of the tax or penalty or reducing the amount of refund, the Commissioner shall recover the amount due from such person in accordance with the provisions of the Act.
80. Determination of disputed questions.
(1) If any question arises, otherwise than in proceedings before a court, or proceedings under section 33, 34 or 35, whether for the purposes of this Act-
(a) any person, society, club or association or any firm or any branch or department of any firm is a dealer, or
(b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term, or
(c) any transaction is a sale or purchase, or
(d) any particular dealer is required to be registered, or
(e) any tax is payable in respect of any particular sale or purchase or if tax is payable the rate thereof, or
(f) any tax credit is admissible under section 11 or section 12, the Commissioner shall make an order determining such question.
(2) The Commissioner may direct that the determination shall not affect the liability of any person under this Act, with respect to any sale or purchase effected prior to the determination.
(3) If any such question arises from any order already passed under this Act or under the earlier law, no such question shall be entertained for determination under this section; but such question may be raised in appeal against, or by way of revision of such order. Determination of disputed questions.
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