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TMI Blog1969 (5) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice, dated 25th October, 1952, under section 11(1) of the Act (annexure A, p. 14 of the petition), in respect of all the four quarters ending with the 14th Baisakh, 1359 B.S. In pursuance of this notice, the petitioner filed a consolidated return for the four quarters on 15th November, 1955, which was revised on 7th December, 1955. Upon such return, the assessing authority made his consolidated assessment order, dated 29th February, 1956 (which is at annexure B), amounting to over Rs. 9 lakhs, of which Rs. 8,36,846-3-3 was found to be due after deducting payments made by the petitioner. This sum was demanded from the petitioner by the single notice of demand at annexure C, dated 1st March, 1956. As against the aforesaid orders, the petitioner preferred an appeal to the Assistant Commissioner of Commercial Taxes (respondent No. 1) which has been rejected by the order at annexure D, dated 5th September, 1966, on the technical grounds that the appellant failed to file certified copies of the impugned assessment orders within the period of limitation and that the full amount of admitted tax was not put in with the appeal. In C.R. 828, the appeal has been disposed of by a subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment under section 11." The position is made clearer by the definition of "returnperiod" in section 2(i) of the Act. "'Return-period' means in relation to any particular dealer the period for which returns are to be furnished by such dealer under rules 17 to 29." Before we turn to the Rules, we should also notice the relevant provisions of section 10. "(1) Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals as may be prescribed. (2) Such dealers as may be required so to do by the Commissioner by notice served in the prescribed manner.......shall furnish such returns by such dates and to such authority as may be prescribed." Clauses (g) and (h) of section 26(2) confer the power to make rules relating to the matters specified in section 10. Rules 17 and 21 of the Rules made under the Act deal with the fixation of the return-period: "17. Every registered dealer who establishes to the satisfaction of the Commercial Tax Officer that his annual taxable turnover is not likely to exceed 10 per cent. of his annual gross turnover shall furnish a return annually within sixty days from the expiry of each year....." "21. Every registered deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarterly return-period has been fixed for the petitioner, the assessing authority can, under section 11(1), assess the tax due by the petitioner with respect to the quarterly periods, and tax so assessed is due from the petitioner in respect of each quarter and is payable quarter to quarter. The scheme of this Act is different from that under the Income-tax Act under which the unit of taxation, in all cases, is a year. Mr. Dutt, on behalf of the respondents, drew my attention to rule 32 of the Rules made under the Act which says"The assessing authority shall estimate the amount of tax payable by the dealer for the whole year, and shall communicate the same to the dealer." But a glance at rules 30-37 will show that different provisions are made for dealers whose return-period is a year, half-year, quarter or a month. Rule 32 relates only to those whose return-period is a year or a half-year. This is clear from rule 34 and the Form V in which the estimate under rule 32 is to be submitted. The annual estimate is not required to be furnished in respect of those whose return-periods are a quarter or a month and to whom rules 36 and 37 apply, respectively. Though the question involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late to the situation under section 11(1) of the Bengal Act. It is in this context that the Supreme Court said that it did not matter if one notice was issued comprising several quarters, but the eventual order of assessment "was made for each quarter separately". It was expressly observed (para. 7, ibid.) that though the notice might include several quarters, "the return has, however, to be submitted in Form IV which read with rule 20 of the Orissa Sales Tax Rules, 1947, requires the assessee to furnish details of his turnover for each quarter. The assessment must, therefore, be made on the taxable turnover of each quarter." These observations, in fact, support the contention of the petitioner before me that the jurisdiction of the assessing authority to assess is separate as regards each period or unit of assessment and that if an order of assessment is made consolidating several units together, such order would be ultra vires the statutory provisions and hence invalid. Unless separate assessment in respect of each of the units or periods of return is made, the assessee's right to make periodical payments under section 10(1) will also be affected. As would appear from the obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of each period separately is a substantive right of the assessee conferred by section 10(1), read with the relevant rules. It is to be noted that the return-period prescribed under the Act is not uniform but varies from a year to a month. That is why the words "in respect of which or part of which" are used in section 11(2a). That the assessing authority under the Bengal Act has no such option to wait for his assessment until the assessee had defaulted in respect of several return-periods is evident from the very opening words of section 11(1)"If no returns are furnished by a.....dealer in respect of any period by the prescribed date.....the Commissioner shall proceed in such manner as may be prescribed...." It is clear from the above that as soon as the date fixed for submission of return for a return-period expires, it is mandatory for the assessing authority to initiate the assessment proceeding. The contention of Mr. Dutt is that the expression "any period" includes "any periods". The whole provision will be dislocated if such a construction, as contended, were made. Even if there is any delay in making assessment, the assessing authority must start proceeding unit by unit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. 397 (412); 31 I.T.R. 565., which laid down the principle of acquiescence which precludes the remedy of prohibition or certiorari on the ground of absence of jurisdiction. No question of estoppel against a statute was, however, raised in that case, inasmuch as the court held (paras. 22-23, ibid.) that the right of an assessee under the Income-tax Act to be assessed by the Income-tax Officer of the area where he resides or carries on business is not an absolute right but is subject to the limitation that "it has to yield to the exigencies of tax collection". When, therefore, a transfer to another area was ordered for the convenience of collection of the tax, there was no violation of the statute; hence, the principle of no estoppel against the statute could not be invoked by the assessee in that case who had submitted to the jurisdiction of the officer to whom he had been transferred. In C.R. 828, an additional ground was taken that since the period for which assessment was made ended on the 14th Baisakh, 1367 B.S., corresponding to 27th April, 1960, but the demand notice was issued on 7th July, 1964, i.e., more than 4 calendar years from 27th April, 1960, the demand was barred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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