9911796707
TMI Blog1993 (9) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 1976-77 for the periods April 1, 1976 to December 22, 1976 and December 23, 1976 to March 31, 1977. The petitioners have further challenged the validity of the provisions of section 10-13(3) of the Act. At the hearing, however, the learned counsel did not press the question of validity of section 10-13(3) of the Act and restricted his arguments to the validity of the order passed under section 10-B and that of the two notices, referred to above. I have heard the learned counsel for the petitioners and the learned Standing Counsel. The petitioner is a dealer within the meaning of the Act. Its assessment for the assessment year 1975-76 was initially made on March 18, 1980. Thereafter, on the basis of certain information, action u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iced that a substantial part of the purchases made by the dealer, that is, the present petitioner, had escaped assessment. The Deputy Commissioner, therefore, issued the impugned show cause notices to the dealer which have been challenged in this writ petition. Section 10-B of the Act was inserted by U.P. Act No. 12 of 1979 with effect from October 3, 1980. It provides that the Commissioner of Sales Tax or such other officer not below the rank of Deputy Commissioner of Sales Tax.......may call for and examine the record relating to any order passed by any officer subordinate to him for the purpose of satisfying himself as to the legality and propriety of such order and may pass such order with respect thereto as he thinks fit. The first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two notices issued by the Deputy Commissioner on September 19, 1984 (annexures 6 and 7 to the writ petition). In the counter-affidavit, it has been admitted in paragraph 5 that it was subsequently revealed that the dealer had issued forms 3-C(1) to kuchcha arhtis for in excess of the turnover assessed and, therefore, the action taken by the Deputy Commissioner under section 10-B of the Act was legal and that it was wrong to suggest that section 10-B cannot be utilised for taxing the escaped turnover. It is clear from a perusal of the documents, referred to above, that the information on the basis of which it was assumed that the turnover had escaped assessment and action under section 10-B of the Act was initiated, was not on the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord" could not mean the "record", as it stood at the time of examination by the Commissioner, but it meant "record" as it stood at the time the order was passed by the Income-tax Officer. In that case, the assessment was sought to be revised under section 263 of the Income-tax Act, 1961, on the basis of a valuation report obtained after the assessment had already been made. It was held that this could not be done. Some other High Courts also shared this view and the Legislature, ultimately, amended section 263 by adding an explanation by the Finance Act, 1988. In the explanation, the word "record" was defined to include all records relating to any proceedings under the Act available at the time of examination by the Commissioner. Under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation because it was impossible to use the information that did not exist. It is, therefore, clear that, in this case, the order passed under section 10-B of the Act for the assessment year 1975-76 and the two notices for the assessment year 1976-77 have not proceeded on the basis that there was any illegality or impropriety in the assessment orders, but are based on the ground that subsequent to the making of those orders, information had been gathered showing that the petitioner's turnover of purchases had escaped assessment. Thus, section 10-B of the Act has been used as a substitute for section 21, because the limitation for invoking section 21 had expired. Section 10-B cannot be used for such a purpose and has to be restricted to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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