9911796707
TMI Blog1993 (9) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commercial Taxes Officer to the Deputy Controller of Stores, Western Railway, Ajmer (hereinafter to be called as "the assessee"). An order was passed on April 19, 1972, by which liability for registration was fixed on the assessee and it was considered a dealer. The assessee preferred an appeal to the Deputy Commissioner (Appeals) who vide order dated June 29, 1974, allowed the appeal but on an application being moved by the assessing authority under section 17 rejected the appeal. The assessing authority passed an order on September 29, 1975, by which the liability for registration was fixed with effect from April 1, 1964. In revision before the Board of Revenue, the matter was challenged by the assessee and the same was rejected on January 22, 1979. Earlier the matter was also challenged before the Board of Revenue (before the amendment of definition of "business" with retrospective effect) wherein, on December 17, 1976, the assessee was held not liable for registration. Against the order of the Board of Revenue dated January 22, 1979, special appeals were preferred and it was observed by the Board of Revenue that the assessee is liable for registration and the notices we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed were under section 7(1) of the Rajasthan Sales Tax Act and it was only a clerical mistake to mention section 10(1)(b). These three orders were challenged by way of second appeals before the Rajasthan Sales Tax Tribunal and the Tribunal came to the conclusion that the assessments have been framed on the basis of the notices issued under section 7(1). It was observed that "strangely there was no notice even under section 10(1)(b) of the Rajasthan Sales Tax Act given to the assessee". The assessment orders were held to be illegal and direction given by the appellate authority to remand the matter was set aside. The assessing authority had not taken any steps to challenge these orders in revision under section 15 of the Rajasthan Sales Tax Act and filed rectification applications before the Sales Tax Tribunal and a point was raised that the observations of the Tribunal in the order dated December 24, 1986, constitute mistake apparent from the record, inasmuch as there is a reference to section 12 as well in the order of the appellate authority. The Tribunal came to the conclusion that the entire matter cannot be considered under the garb of an application under section 17 and accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have filed revision either against the order which was passed under section 14B, i.e., dated December 24, 1986 or the order dated April 26, 1990, in rectification proceedings. The revision petitions which have challenged both the orders cannot be said to be in accordance with the provisions of sub-section (1) of section 15 of the Act. An option was given to the learned counsel for the Revenue and it was stated that the order dated April 26, 1990, alone is being pressed in the present revision petitions. Before giving decision, it would be relevant to refer to the decision which has been given by this Court in the case of Arbind Company [1979] 43 STC 430, wherein the decision of the apex Court in the case of Anandji Haridas and Co. (P.) Ltd. v. S.P. Kushare, Sales Tax Officer [1968] 21 STC 326 was relied on in which the apex Court has held that the expression "escapement of assessment" applies equally to cases where a notice was received by an assessee but the same resulted in no assessment at all and to cases where due to any reason no notice was issued to the assessee and on that account there was no assessment of his income. It was also held in that case that where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecome barred by limitation, then even the directions could not be given by the appellate or revising authority after expiry of limitation to initiate the proceedings. The provisions of section 10(1)(b) of the Act, as it was then, refers to framing of assessment, in a case where no return is submitted by a dealer under sub-section (1) of section 7 within the time prescribed or if the return submitted by him appears to the assessing authority to be incorrect or incomplete. The assessing authority after making such enquiry as it thinks fit, can assess the tax to the best of his judgment. Prior to the amendment by Act No. 4 of 1967, this power could have been exercised only in respect of "previous year ". Thus there were two provisions of law enabling the assessing authority to frame assessment where the return was not submitted; one was under section 10(1)(b) and another was under section 12. If the proceedings were intended to be initiated under section 10(1)(b) then the assessment was to be completed for the period up to March 1967, i.e., the accounting year 1966-67 within a period of one year. If in respect of the period up to 1966-67 the proceedings were not initiated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have mentioned the sub-section of section 10 in the notice itself. Even if it is considered merely an irregularity in accordance with the provisions of section 19A, it has to be examined as to whether the assessing authority has the jurisdiction to frame the assessment or not. In the first appeal against the assessment order dated November 30, 1979, the Deputy Commissioner (Appeals) has set aside the cases with the directions for framing assessment orders afresh. The exact words of the operative part of the judgment are as under (translated to Hindi) "Moujooda kaez mey yah nirvivath hey ki vikrya vivarinyam prasthuth nahi ki gar hye athha kar nirtharan ki karyavahi jo dhara 10(2) ke adheen notes tekar jari ki gar hye vah avrithya ye athha esz prakar jo kar nitharan kiye gaye hay vay kanoon sthithi mey nahi kahey ja sakthi esliyey mananeya vez thyalaye ke oparokth nirnaya kare dkthi haye kar nitharan ke karyavahi dhara 10(1)(b) ke thhath ya dhara 12 raj bivkavav kae thyath kae jane yaethu jaise be sthithi hoh, ye kisaz vapiz kiye jathi yih| niyamanusar notice jati karke yi ponah kar nirdharan adhesh parith kiye jaye|" From a perusal of the order of the Deputy Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Deputy Commissioner (Appeals), mentions "notices are to be issued under section 12 of the Rajasthan Sales Tax Act and after issuing them these notices, the proceedings be completed". No doubt, there was a mistake in the order of the Sales Tax Tribunal while mentioning the exact language of the order of the Deputy Commissioner (Appeals) but it has no effect on the merit. In the later part of the order of the Tribunal, in para 9, it has clearly been mentioned that the notice even under section 10(1)(b) was also not issued. The rectification application, which was submitted by the assessing authority has been rejected rightly on the ground that in the garb of an application for rectification, the entire matter cannot be reconsidered. The scope of rectification is limited one. If any matter requires argument or there can be two opinions, then it cannot be said to be covered by section 17 of the Act. In the present case, since the order which has been passed by the Sales Tax Tribunal under section 17, has decided that the matter is not covered by the provisions of section 17. Besides the observations which have been made above in the present case, I am of the view that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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