9911796707
TMI Blog1971 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover of Rs. 2,54,719, by his order dated 14th September, 1957. On appeal, the Deputy Commissioner of Commercial Taxes, by his order dated 5th May, 1958, remanded the case to the Commercial Tax Officer for making a fresh assessment after giving a reasonable opportunity to the appellant to adduce evidence in his behalf. On remand, as the assessee did not produce his account books, on notices issued to him, the Deputy Commercial Tax Officer determined the turnover on the basis of the previous year 1955-56 at Rs. 4,13,350.68 by his order dated 29th March, 1961, which was communicated to the assessee on 4th August, 1961. As the appeal to the Assistant Commissioner was rejected, the appellantassessee went on appeal to the Sales Tax Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Sir Sobha Singh Co. v. Commissioner of Sales Tax[1966] 18 S.T.C. 416.In the Supreme Court case cited above, their Lordships were dealing with the second proviso to section 12, clause (6), of the Orissa Sales Tax Act, which reads as follows: "Provided further that no order assessing the amount of tax due from a dealer in respect of any period shall be passed later than thirtysix months from the expiry of such period." In interpreting this section along with section 23(2) of that Act, they held that even when an appellate or revisional authority is effecting a fresh assessment by enhancing it, it is exercising the power which is conferred by section 12, and so to speak, doing the duty which an assessing authority would or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he new Act, shall, after such commencement, be disposed of as if this Act had been in force on the date on which such application, appeal or revision or other proceedings are made or preferred and that, therefore, the provisions of the new Act will apply with regard to these proceedings. This proposition is conceded by Mr. Venkatappaiah Sastry, appearing for the department. It is therefore to be seen what is the limitation prescribed under the provisions of section 14(1) for the assessment. The relevant provision of section 14(1) reads as follows: "........... An assessment under this section shall be made only within a period of four years from the expiry of the year to which the assessment relates." The question that has to be deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period involved shall be excluded in computing the period of four years or six years as the case may be. Therefore, the above provisions show that the Legislature has not intended that the four years prescribed under section 14(1) should be the outer limit for making the assessment and that the assessment should be made within that period notwithstanding the revisions or appeals filed under the Act. Section 20 of the Act provides for revision by the Board of Revenue or other prescribed authority, and under sub-clause (3) such powers can be exercised only within a period of four years from the date on which the order against which the revision is being filed was served on the dealer. This period has to be calculated after the service of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals on a particular order and what they have indicated is that limitation should be computed not from the date of the order itself, unless it has been passed in the presence of the party or after notice to the party, but from the date of the communication of this order to the assessee. They do not hold that the order does not take effect from the date it was passed, but only from the date it is communicated that it is valid and binding on the party. If that were so, it will give rise to innumerable complications, as there may be ex parte orders or where the assessees may be dodging service and may not be served at all, and there may also be cases where, when there are different parties and they may be served on different dates and it can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such this is a fundamental error, which goes to the root of the assessment and as such the assessment is invalid. For this proposition, the decision in Shankar Dhawan v. Sales Tax Officer, Circle II, Nagpur[1964] 15 S.T.C. 292., is relied on. That was a case of an assessment being made in the trade name after the death of the proprietor who was the dealer. Section 5 of the Act, which is the charging section, no doubt, makes the dealer liable and the term "dealer" has been defined in section 2(e) of the Act, as any person who carries on the business of buying, selling, etc. It is no doubt the dealer that is liable. But in this case, it is not correct to say that the assessment has been made in the trade name, i.e., Hameedi Confectioners. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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