2001 (10) TMI 1135 - HC - VAT and Sales Tax

Summary

Issues:
The judgment involves the legality of an order passed by the Deputy Commissioner of Taxes, Tinsukia, u/s 36(1) of the Assam General Sales Tax Act, 1993, regarding the cancellation of an assessment order dated April 25, 1991, for the period ending September 30, 1988, due to alleged concealment of turnover.

Issue 1 - Jurisdiction of Writ Court vs. Statutory Appeal:
The State Counsel argued that the petitioner should have exhausted the statutory appeal remedy before approaching the writ court, citing section 33(2)(a) of the Act. However, the court noted that failure to exhaust statutory remedies does not oust the jurisdiction of the writ court, and in this case, after considering the facts and the pending nature of the petition since 1996, the court decided to adjudicate the case on merits.

Issue 2 - Interpretation of "Erroneous" u/s 36 of the Act:
The petitioner's counsel contended that the revisional authority's use of suo motu powers under section 36 was improper as the assessment order was not erroneous in a jurisdictional sense. The court agreed, stating that an erroneous order in this context refers to jurisdictional errors, not mere disagreements on interpretation or quantum of tax liability. The court emphasized the distinction between the powers under sections 18 and 36 of the Act and quashed the revisional order.

Conclusion:
The court held that the Deputy Commissioner's order under section 36(1) was not justified as it did not involve a jurisdictional error, and the power to revise the assessment did not apply in this case. Therefore, the court quashed the order and allowed the writ petition.