BHASKAR BHATTACHARYA, J.
(1) BY this writ application, the writ petitioner has challenged an order dated July 22, 2002 passed by the Deputy Commissioner, Commercial Taxes in Appeal Case No. A-22/ AW/2001-02 thereby dismissing the said appeal.
(2) THERE is no dispute that an order of assessment dated June 25, 1998 was passed against the petitioner but he did not prefer any appeal. Subsequently, the assessing officer, however, initiated a suo motu review proceeding and ultimately allowed a claim under section 8 (1) (b) of the Central Sales Tax Act, 1956 " (the CST Act)" for Rs. 3,78,16,679. 16 paise in place of original claim allowed for Rs. 3,75,77,937. 16 paise.
(3) BEING dissatisfied with the said order of review the petitioner preferred an appeal under the provisions of the CST Act read with section 79 of the West Bengal Sales Tax Act, 1994 " (the WBST Act)".
(4) BY the order impugned herein, the appellate authority has dismissed the appeal on the ground that the petitioner not having preferred any appeal against the original order of assessment in accordance with the provisions contained in section 9 (2) of the CST Act read with section 79 of the WBST Act it has deprived itself of the remedy as provided in law against the adverse assessment order, which was the subject-matter of the appeal. The appellate authority thus declined to give any relief to the petitioner for not preferring any appeal against the original assessment order which has since been reviewed suo motu.
(5) IT further appears from the order impugned that the appellate authority treated the said appeal filed by the petitioner as one for revision and was of the view that the petitioner through mistake preferred the said appeal and it should be treated as an application for revision.
(6) BEING dissatisfied, the petitioner has come up with the instant writ application under article 226 of the Constitution of India.
(7) THE learned advocate appearing on behalf of the petitioner has attacked the order impugned alleging that the authority below refused to exercise jurisdiction vested in it by law simply on the ground that the petitioner not having preferred any appeal against original assessment order cannot dispute the correctness of the subsequent order passed by the same authority on suo motu review. According to him, although his client has not preferred any appeal against original assessment order, the assessing authority having initiated suo motu proceeding for review and the said proceeding having been allowed in part and as a result, a new order of assessment having been passed, his client was entitled to challenge the new assessment order by preferring an appeal after such suo motu review.
(8) MR. Gupta, the learned counsel appearing on behalf of the respondents on the other hand has seriously disputed the aforesaid contention of the learned advocate for the petitioner and has contended that the petitioner having accepted the original order of assessment by not preferring an appeal, cannot now be conferred with any right to challenge the order passed on review inasmuch as by such review, the original order of assessment has been reviewed not against the petitioner but in favour of the petitioner. In other words, Mr. Gupta contends that the original order of assessment having been accepted by the petitioner, he should not be permitted to challenge the order passed on review which is now less stringent.
(9) AFTER hearing the learned counsel for the parties and after going through the materials on record, I am of the view that once an original order of assessment has been reviewed by the same assessing authority on suo motu review, the order passed on review becomes a new assessment order altogether and as such the petitioner has right of appeal against such now assessment order notwithstanding the fact that the original assessment order was not challenged. Once an assessment order is reviewed and a new order is passed, the original order should be treated as non est and it is the second order passed on review that is the only order of assessment, (see Sushil Kumar Sen v. State of Bihar MANU/sc/0028/1975). Therefore, even though the petitioner did not challenge the initial order of assessment, once such order is reviewed and a new assessment order is passed, the petitioner can challenge the second assessment order on review by preferring appeal as done in this case.
(10) THE appellate authority it appears from record had no justification of treating the said appeal as one for revision. Therefore, the appellate authority acted illegally in not entering into the merit of the said appeal. For all practical purposes it should be presumed that original order of assessment dated June 25, 1998 is not in existence and it is the order dated March 26, 2001 that is the only order of assessment.
(11) I thus set aside the order impugned and direct the Deputy Commissioner, Commercial Taxes to hear the a
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foresaid appeal treating it one under section 9 (2) of the C. S. T, Act read with section 79 of the W. B. S. T. Act and to hear out the appeal on merit. I make it clear that I have otherwise not gone into the contentions raised by the petitioner in the Memorandum of Appeal before the Deputy Commissioner, Commercial Taxes. The Deputy Commissioner, Commercial Taxes, is directed to dispose of the appeal on merit positively within a month from the date of communication of this order. In the facts and circumstances of this case there will be however no order as to costs.