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TMI Blog1955 (10) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the proviso to section 10(6) of the Bihar Sales Tax Act, 1944?" The facts are the following: Messrs. Gajo Ram Basant Ram are bullion merchants of Gaya. On the 21st May, 1945, they were assessed to a certain amount of tax by the Sales Tax Officer, Gaya, for the last quarter of 1944, that is the quarter ending on the 31st of December, 1944. By an order dated the both 20th or 28th of December, 1945, the Deputy Commissioner, on appeal, set aside the order of assessment and remanded the case for further enquiry. On the 12th December, 1946, the Sales Tax Officer reduced the assessment to a particular amount, the amount being irrelevant for our purpose. On the same day, namely, the 12th December, 1946, three other assessments were made against the said firm for the quarters ending the 31st March, 1945, the 30th June, 1945, and the 30th September, 1945. Another assessment was made on the 22nd December, 1947, in respect of the quarter ending on the 31st of December, 1945. All told the firm was assessed to tax for five quarters, namely, the last quarter of 1944 and the four quarters of 1945. Some time in July, 1948, the Deputy Commissioner of Commercial Taxes, Bihar, sought the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any prosecution instituted for an offence under this Act: Provided that no order assessing the amount of tax due from a dealer in respect of any period shall be passed later than 24 months from the expiry of such period." I may state here that section 10 contains five other sub-sections which deal with the different modes in which assessment can be made. The section dealing with appeal, revision and review is section 20 of the Bihar Sales Tax Act, 1944. Sub-section (4) of that section is relevant for our purpose. That sub-section is in these terms: "20. (4) Subject to such rules as may be prescribed, any order passed under this Act or the rules made thereunder by any person appointed under section 3 may be reviewed by the person passing it". There is a safeguard in sub-section (5) of section 20 which states that before any order is passed which is likely to affect any person adversely, such person shall be given a reasonable opportunity of being heard. Now the question before us is, if the period of limitation mentioned in the proviso to sub-section (6) of section 10 applies to and controls the power of review given by sub-section (4) of section 20. The argument of learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that the provisions of sections 34 and 35 of the Act were exhaustive and pres- cribed the only circumstances in which and the only time in which fresh assessments could be made, and the power of the Commissioner under section 33 was subject to the provisions of sections 34 and 35. The same view was also expressed in Commissioner of Income-tax, Madras v. Sheik Abdul Kadir Maracayar Co.(2), where it was pointed out that even though no limitation of time was prescribed for interference by way of revision under section 33, the Court would almost always incline in favour of taking the view that such exercise of power should be within a reasonable time of the proceedings sought to be revised, reasonable time being computed by the Court having regard to all the other provi- sions of the Act. Learned counsel for the assessee has submitted before us that the same principle should govern the present case and the limita- tion of time laid down in the proviso to sub-section (6) of section 10 should apply to the power of review given under sub-section (4) of section 20. In my opinion, this argument fails to take note of several important distinctions which exist between the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944, is somewhat unhappy. I take it that the proviso relates to an original order of assessment made under section 10. In other words, the proviso in its true meaning and effect lays down that no original order assessing the amount of tax due from a dealer in respect of any period shall be passed later than 24 months from the expiry of such period. I do not agree, however, that the proviso should be read as controlling all the other provisions of the statute. Take, for example, section 2o. Under sub-section (2) of section 20, the appellate authority in disposing of an appeal may confirm, reduce, enhance or annul the assessment or penalty, if any, or both, or the appellate authority may set aside the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may be directed. Now, it may so happen that by the time the appellate authority passes its order the period mentioned in the proviso to sub-section (6) of section 10 is already over. In the second case to which I shall presently refer, that is what actually happened. If the proviso to sub-section (6) of section 10 controls the provisions of section 20, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on the petitioner for the five quarters in question does not contravene the provisions of the proviso to sub-section (6) of section 10 of the Bihar Sales Tax Act, 1944, that proviso being restrict- ed in its operation to an original order of assessment made under section 10 of the said Act. I now proceed to a consideration of the second case, namely, Miscellaneous Judicial Case No. 291 of 1951. The facts are the follow- ing. The assessee is one Bishwanath Dokania. He was not registered as a dealer. As a result of a raid certain papers of the dealer were seized on the 5th December, 1947. On the 30th December, 1947, an assessment was made under the provisions of sub-section (5) of section 10 of the Bihar Sales Tax Act, 1944, and a penalty was also imposed. The assessment was for the quarter ending on the 31st of December, 1945. On the 24th March, 1948, a second assessment was made for the period commencing on the 1st of January, 1946, and ending on the 31st of December, 1947. On the 18th May, 1948, the Commissioner set aside, the first assessment on an appeal preferred by the assessee. The Commissioner remanded the case on the ground that the dealer had not been given a full o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r revisional authority when that authority is dealing with an appeal or revision. In this second case, the appellate authority set aside the first assessment on the 18th May, 1948. This the appellate authority did at the instance of the assessee himself. On the 18th May, 1948, the period of two years laid down by the proviso to sub-section (6) of section 10 had already expired with regard to the first period, the period from the 1st October, 1945, to the 31st December, 1945. If the view canvassed for by learned counsel for the assessee is correct, then on the 18th May, 1948, it was not open to the Commissioner to set aside the first assessment and direct a fresh assessment; in other words, it was not open to the Commissioner to do what he was authorised to do under section 20 of the Act. On the 21st July, 1949, also, when the Assistant Commissioner consolidated both the assessments, the period of two years had already passed with regard to the period prior to the 1st July, 1947. Therefore, on the 27th April, 1950, the Commissioner had no authority, on the argument of learned counsel for the assessee, to interfere with the assessment. Neither had the Board power to interfere with th ..... 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