1973 (11) TMI 72 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Justification of turnover determined at Rs 2,00,000.
2. Exclusion of time spent in prosecuting remedy under section 30 for computing the period of limitation for filing the appeal.
3. Condonation of delay under section 5 of the Limitation Act.

Issue-wise Detailed Analysis:

1. Justification of Turnover Determined at Rs 2,00,000:
The court scrutinized whether the turnover determined at Rs 2,00,000 by the assessing authority was justified. The petitioner contended that the assessment was arbitrary and without any material basis. The Judge (Revisions) initially found the assessments too high and arbitrary, but later confirmed them based on the turnover fixed for the preceding year. However, it was revealed that the turnover for 1965-66 was Rs. 1,15,000, not Rs. 1,50,000, and the assessment for that year was pending revision. Consequently, the court concluded that the basis for confirming the assessments was erroneous and lacked material justification.

2. Exclusion of Time Spent in Prosecuting Remedy under Section 30:
The petitioner argued that the time spent in prosecuting proceedings under section 30 should be excluded when computing the period of limitation for filing the appeal, either under section 14 or section 5 of the Limitation Act. This contention was rejected by the appellate authority and the Judge (Revisions). The court reiterated its previous judgment (Satish Chandra Nirmesh Kumar v. Commissioner of Sales Tax) that the period spent in such proceedings should not be excluded, thus answering the question in the negative and against the assessee.

3. Condonation of Delay under Section 5 of the Limitation Act:
The petitioner also sought condonation of the delay under section 5 of the Limitation Act. The appellate authority dismissed the appeals as time-barred, and this stance was upheld by the court. The court noted that the petitioner had wilfully failed to appear on the fixed date, and thus, the delay could not be condoned. This question was also answered in the negative and against the assessee.

Additional Observations:
The court observed that the revising authority failed to conform to the High Court's judgment. Despite the High Court's finding that the turnover assessments were unjustified, the revising authority did not provide relief to the petitioner. The court emphasized that the revising authority must pass orders in conformity with the High Court's judgment under section 11(6) of the Act. The court also addressed the doctrine of merger, clarifying that the assessment orders did not merge with the appellate orders since the appeals were dismissed as time-barred and not on merits.

Conclusion:
The court allowed the petition, quashing the assessment orders dated 31st May 1969, for the assessment years 1966-67 and 1967-68. It permitted the Sales Tax Officer to pass fresh assessment orders in accordance with the law and the observations made in the judgment. The petitioner was entitled to the costs.