2008 (5) TMI 622 - HC - VAT and Sales Tax

Provisional assessment - Held that - The order of Tax Board remains unexceptionable and calls for no interference. Even when the assessing authority in the final assessment order has left the matter regarding penalty aside due to pendency of appeal before the Tax Board, paragraphs 21 and 22 (22 and 23 of VST) of the decision in Mahaveer Timber Mart 2007 (5) TMI 586 - RAJASTHAN HIGH COURT operate squarely against the contention on competence of appeal in relation to the provisional assessment order after passing of final assessment order. The revision petition fails and is, therefore, rejected.

Summary

Issues:
Appeal against provisional assessment order rendered infructuous after final assessment order - Imposition of penalty under section 65 of Rajasthan Sales Tax Act, 1994 - Competence of appeal after passing of final assessment order.

Analysis:
The High Court addressed the issue of the appeal filed by the petitioner against the provisional assessment order being dismissed as infructuous after the final assessment order was passed. The Court noted that the final assessment order incorporated the provisional assessment order, rendering the appeal moot. The petitioner argued that the final assessment order left the matter of penalty imposition reserved due to the pending appeal against the provisional assessment order. However, the Court referred to previous decisions, including the case of Mahaveer Timber Mart, which clarified that the appeal against provisional assessment becomes irrelevant once the final assessment order is passed. The Court emphasized that even if the appellate authority modifies the provisional assessment, the final assessment is not bound by such modifications.

The Court further discussed the principle that provisional assessment is subject to regular assessment, and the final assessment order takes precedence over the provisional assessment order. The Court highlighted that the law does not allow the provisional assessment order to become a regular assessment order merely because the final assessment order is subject to the provisional assessment decision. The Court rejected the Revenue's argument that they would be left remediless if the Tax Board's order was not set aside, emphasizing that the law cannot be interpreted based on the hardship caused to the authority by any contrary order.

In conclusion, the Court upheld the Tax Board's decision to dismiss the appeal as infructuous after the final assessment order was passed. The Court reiterated that the competence of the appeal against the provisional assessment order ceases once the final assessment order is issued, as established in previous judgments. Therefore, the revision petition was rejected based on the legal principles discussed in the Mahaveer Timber Mart case and other relevant precedents.