9911796707
TMI Blog1977 (4) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... the disputed turnover was Rs. 922.58. The assessee had opted for assessment under section 7 of the Act by letters dated 1st August, 1972, and 4th September, 1972. The assessing authority accordingly assessed the assessee under section 7 of the Act. On appeal, the Appellate Assistant Commissioner revoked the assessment made under section 7 of the Act and directed the assessment under section 3(1) of the Act, because rule 15(4-B) of the Tamil Nadu General Sales Tax Rules had been deleted by an amendment made to the Rules. The assessee questioned this part of the order of the Appellate Assistant Commissioner before the Sales Tax Appellate Tribunal. According to the assessee, the deletion of rule 15(4-B) had not deprived the right to have the option exercised within a reasonable time and the right having vested in the assessee on 1st May, 1971, could not be taken away from the assessee retrospectively. It was this contention which found favour with the Tribunal. The Tribunal held that the assessee, having exercised the option for assessment under section 7 within a reasonable time, was eligible for assessment under that provision. It is this order of the Sales Tax Appellate Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that a dealer who opts to pay tax at compounded rates under section 7 shall submit a return in form AA-1. Sub-rule (4-A) of rule 15 provides that if a dealer who is eligible to pay tax at the compounded rate laid down in section 7 is desirous of being assessed on a provisional basis from the commencement of any year, at the rates laid down in that section, he shall before the 1st May of each year or if the return referred to in subrules (1) to (3) of this rule was submitted earlier along with that return, intimate his desire to the assessing authority to be so assessed. It further provides that the option so exercised shall be valid for the year of assessment and be continued so long as the dealer was found eligible to be assessed under section 7 and had not withdrawn the option and that the change-over to this method of assessment shall not be permitted in the course of a year. Sub-rule (4-B), which was in force, at any rate, during a part of the year, provided that a dealer who was eligible for payment of tax at the rates laid down in section 7 but who had not exercised the option to be assessed under that section as provided in sub-rule (4-A) in respect of any year, shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being assessed on a provisional basis, so that on the language of sub-rule (4-A), it would be clear that it would not apply to the present case. In other words, sub-rule (4-A) would apply only to those cases where the assessee had exercised his option of a provisional assessment being made for the purpose of section 7 from the relevant year under consideration. Where the assessee had exercised his option subsequent to the relevant year, then sub-rule (4-A) would, on its own language, not apply. The result is that we have to proceed on the basis that sub-rule (4-A) does not apply to the facts of the present case and sub-rule (4-B), having been deleted from rule 15, has also no application. We are thus left with the statutory provision as such, namely, section 7. In section 7, there is no time-limit prescribed for the purpose of exercising the option. The result would be that the assessee could exercise the option within any reasonable time. We have now to consider as to what could be a reasonable time in a case like this. Before proceeding further, we have to clarify one point. Section 7(2) provides that any dealer who estimates his total turnover for a year to be not more than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Sales Tax Act, it was laid down, only confers power on the rule-making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of the goods sold, the parties to whom they are sold and to which authority the form is to be furnished. It was held that this did not take in the time element. It was held that, in other words, the section did not authorise the rule-making authority to prescribe a time-limit within which the declaration was to be filed by the registered dealer. It was, however, pointed out that, in the absence of time-limit, it was the duty of the dealer to furnish the declaration within a reasonable time. On the facts of the case, it was held that the declaration having been filed before the order of assessment was made, it had been filed within a reasonable time. Having regard to this decision and having regard to the fact that section 7 does not fix any timelimit within which the option had to be exercised, it appears to us that the option could be exercised within a reasonable time as pointed out by the Supreme Court. The reasonable time in a case like this has been considered by the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as in section 7(1). The option would be exercisable before the assessment is made. Further, when the said decisions were rendered sub-rules (4-A) and (4-B) of rule 15 were not in the statute book and they had not to deal with a situation where sub-rule (4-A) alone remained in the statute book and subrule (4-B) had been deleted. Having regard to the peculiar feature emerging from the omission of sub-rule (4-B) and the decision of the Supreme Court, we consider that, in the present case, the option was rightly exercised by the assessee before the assessment was made. The learned Additional Government Pleader brought to our notice a decision in Deputy Commissioner (C.T.), Coimbatore v. Amirtham Ghee Stores[1978] 41 S.T.C. 259; 1976 Tax. L.R. 2015. That was a case where the assessee had filed the return under rule 18 as a result of which, it was not possible to exercise the option available under section 7. Therefore, we do not consider that there is anything in the said decision which would apply to the facts of this case. Further the effect of omission of sub-rule (4-B) and the retention of sub-rule (4-A) of rule 15 had not to be considered on the facts of that case. We hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
