9911796707
TMI Blog1997 (9) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner filed a reply in which it was, inter alia, pointed out that since it had filed Writ Petition No. 18988 of 1986 challenging the constitutional validity of section 5(3-D) and the operation of the said provision had been stayed by an interim order of this Court dated October 30, 1986, the proposed assessment proceedings could not be completed. The proceedings initiated by the assessing authority consequently remained inconclusive on account of the interim order of stay granted in the aforementioned writ petition. The writ petition was however disposed of by this Court by an order dated December 13, 1990, following a Division Bench decision in Ranganatha Associates v. State of Karnataka [1990] 78 STC 1 (Kar). This order of dismissal was subsequently recalled and the writ petition restored to its original number as it appeared that the view taken in Ranganatha Associates [1990] 78 STC 1 (Kar) did not have any direct application to the case of the petitioner. The writ petition was disposed of for, the second time by order dated March 28, 1996, following the decision of the Supreme Court in Vasavadatta Cements case [1996] 101 STC 168 where the apex Court has upheld the constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this Court in Union Home Products Ltd. v. Assistant Commissioner of Commercial Taxes (W.P. No. 22497 of 1991, dated September 15, 1993). It was also urged that the Commissioner of Commercial Taxes was not competent to pass an order of deferment under section 12(6)(b) of the Act on the basis of an interim order of stay from any court or authority. That power could according to the learned counsel be exercised only by an assessing authority under section 12(a) of the Act so that an order of deferment issued by the Commissioner on the basis of any such order of stay would be a nullity. 4.. The essential facts are not in dispute. It is not disputed that the petitioner had in W.P. No. 18988 of 1986, challenged the constitutional validity of section 5(3-D) and secured an interim order suspending the operation of the said provision. It is also not disputed that the said order of interim stay remained in force till December 13, 1990, i.e., for a period of three years, seven months and 13 days, after the petitioner had filed its return. In terms of section 12(6) of the Act, the time during which the proceedings for assessment remain deferred on account of an order of stay granted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompletion of a proper assessment under section 12 of the Act, would not have had the effect of suspending the assessment proceedings in toto and even qua the issues that were not directly affected by section 5(3-D) of the Act. Seen thus, the challenge to the validity of the impugned notices on the ground of limitation must in my opinion fail. 6.. I may all the same deal with the alternative submission made by the learned counsel for the petitioner. There are two facets of the alternative submission as already noticed earlier-one relating to the competence of the Commissioner to have made a deferment order under section 12(6)(b) and the other touching upon the validity of that order. The provisions of sub-section (6) of section 12 may be extracted at this stage: In computing the period of limitation for assessment under this section,- (a) the time during which the proceedings for assessment in question have been deferred on account of any stay order granted by any court or any other authority shall be excluded; (b) the time during which the assessment has been deferred in any case or class of cases by the Commissioner for reasons to be recorded in writing shall be exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder made in the instant case should be allowed to be assailed by the petitioner. It is true that the deferment order was not communicated to the petitioner soon after the same was made, yet the order was relied upon and produced by the respondents in these proceedings along with the statement of objections filed by them as early as in January, 1991. More than six years have expired ever since but the petitioner has made no effort to amend the writ petition so as to challenge the validity of the said order. Having failed to do so, I am not inclined to permit the petitioner to urge the ground of its alleged invalidity in the course of the oral submissions made at the Bar. That apart, while it is necessary that orders of deferment should be preceded by a notice to the assessee concerned, the absence of such a notice may not vitiate the order where the deferment proceeds only on the basis of an interim order of stay issued from the court. What is interesting is that the petitioner has itself obtained the interim order from this Court and set up the same as a defence to the completion of the assessment proceedings by the assessing authority. Having secured an order, and having prevente ..... X X X X Extracts X X X X X X X X Extracts X X X X
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