1992 (5) TMI 182 - AT - VAT and Sales Tax

Summary

Issues Involved:
1. Whether the hoardings erected by the applicant are "goods" and thus subject to sales tax.
2. Whether the ex parte assessment order dated December 17, 1990, is valid.
3. Whether the notices in form VI issued to the applicant are legal.
4. Whether the assessment is barred by limitation.

Summary:

1. Whether the hoardings are "goods":
The applicant, an advertising agency, argued that the hoardings are immovable structures and thus not subject to sales tax u/s 2(d) of the Bengal Finance (Sales Tax) Act, 1941. The Tribunal examined definitions from various Acts and concluded that the hoardings, though attached to the earth, are not immovable properties due to their capability of being severed and removed. Thus, they are "goods" u/s 2(d) and their letting out amounts to a "sale" u/s 2(g)(ii) of the Act of 1941. The Tribunal referenced several cases, including *Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer* and *Modern Decorators v. Commercial Tax Officer*, to support this conclusion.

2. Validity of the ex parte assessment order:
The Tribunal found that the ex parte order dated December 17, 1990, lacked clarity on the basis for determining the taxable balance of Rs. 1,50,00,000 and did not specify whether it pertained to the entire year ending May 31, 1984, or only from April 1, 1984. Consequently, the order was set aside, and the Commercial Tax Officer was directed to initiate fresh proceedings to determine the applicant's liability to pay tax u/s 4(2) read with section 4(5)(d) of the Act of 1941.

3. Legality of notices in form VI:
The applicant contended that the notices were illegal as no liability was determined. The Tribunal noted that the applicant had submitted to the jurisdiction of the Commercial Tax Officer by responding to notices and appearing before the officer. Therefore, the applicant could not challenge the notices' legality after the ex parte assessment order.

4. Limitation of the assessment:
The applicant initially argued that the assessment was barred by limitation but did not press this point during the final arguments. Hence, the Tribunal did not discuss the limitation issue.

Conclusion:
The application was allowed in part. The Tribunal set aside the ex parte assessment order dated December 17, 1990, and directed the Commercial Tax Officer to initiate fresh proceedings to determine the applicant's liability to pay tax under section 4(2) read with section 4(5)(d) of the Act of 1941. The hoardings were to be treated as "goods," and their letting out was deemed a sale. The interim order was vacated, and no order was made as to costs.