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TMI Blog1955 (11) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to sell the cloth and yarn manufactured by the Swadeshi Cotton Mills. In 1948 the U.P. Legislature passed the U.P. Sales Tax Act, which came into force from the 1st April, 1948. A sales tax was imposed on the sales of cloth and yarn and the rate was changed from time to time. The petitioner obtained a licence under section 6 of the Act and the case of the petitioner was that it was not selling any cloth or yarn on its own account but was doing so as the agent of the Swadeshi Cotton Mills. It, therefore, thought that it was not a dealer, as defined in section 2(c) of the U.P. Sales Tax Act. It did not file a return, as provided for the assessment year 1948-49 and the year in dispute is this year only. On the 20th March, 1952, a notice w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame up for hearing before the Judge (Revisions), Sales Tax. The judge (Revisions) decided the case on the 18th March, 1955, but he did not come to any clear decision whether the decision of the judge (Appeals) was correct or not. He thought that the decision of the matter would depend upon the question whether the petitioner paid the price of the cloth taken from the Swadeshi Cotton Mills and whether it received the goods on payment or otherwise. He thought that if the goods were received on cash payment or that the petitioner debited them with the price of the goods, the obvious inference would be that the petitioner was not acting as an agent and should be held to be dealer. He himself did not decide this question and was of the opinion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition are that a writ in the nature of prohibition be issued to the Sales Tax Officer restraining him from taking any further proceedings for the re-assessment of the petitioner for the year 1948-49 and that a writ of certiorari be issued quashing the order of the Sales Tax Officer dated the 2nd September, 1955. The learned counsel for the petitioner has urged only one point in support of the petition. His contention is that according to the wording of section 21 of the U.P. Sales Tax Act, an assessment on an escaped turnover must be made within a period of three years next succeeding that to which the tax relates. He has contended that a time limit has been imposed on the completion of the assessment under section 21 and that time limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at any time after that. Similarly in the different Articles of the Limitation Act the period provided is the period for bringing a suit. In section 21 of the Sales Tax Act, the Legislature has not adopted this method of providing for a limitation and what it has done is that it has provided a time limit for making the assessment. The assessment can be made only within a period of three years from the date of the expiry of the last date of the year or years of assessment, and a reading of the section shows that the Sales Tax Officer has no jurisdiction to make any assessment after the expiry of three years under the provisions of that section. This section would cover a case where the entire turnover had escaped assessment and also the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh assessment to be made and it is obvious that this assessment is to be made under section 21 of the Act. Under the circumstances, I am not called upon to decide whether any limitation is provided for an assessment made under section 7 of the Act. The present assessment was expressly made under section 21 and it has throughout been treated as such. The assessment which would now be made by the Sales Tax Officer under the orders of the judge (Revisions) would be a fresh assessment under section 21. The point was raised before the Sales Tax Officer himself but he said that the limitation of three years might apply to an assessment made in the first instance, but, as he was making an assessment after remand of the case, the period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l assessment made by the Sales Tax Officer would have been revived and the date of assess- ment would be the date when that Officer had made the assessment. Even if that order was modified in revision, the position would be the same, because the assessment would be the assessment by the Sales Tax Officer and not by the Judge (Revisions). In the present case, the judge has directed a fresh assessment to be made and he has set aside the previous assessment order, so that any assessment that is now made will be a fresh assessment under section 21 and this could only be done within a period of three years after the expiry of the date of the year or years of assessment. That time has long expired and the Sales Tax Officer has no jurisdiction now ..... X X X X Extracts X X X X X X X X Extracts X X X X
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