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TMI Blog2000 (1) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Deputy Commissioner (Appeals), Commercial Taxes Department, Jodhpur, vide his order dated February 16, 1990 and the matter was remanded back to the assessing authority, namely, Assistant Commercial Taxes Officer, Special Ward, Anti-Evasion, Jodhpur, for framing the assessment in accordance with law. This order of Deputy Commissioner (Appeals) was served on the assessing officer on March 14, 1990. The files have been transferred from Assistant Commercial Taxes Officer, Special Ward, Anti-Evasion, Jodhpur, to Commercial Taxes Officer, Pali, because Assistant Commercial Taxes Officer at the relevant time lacked the pecuniary jurisdiction on account of the total turnover of the assessee for that period. This is how the assessment orders came to be made by Commercial Taxes Officer. On February 13, 1992 (as per assessing officer, and as per order of the Board such orders were made in fact on February 14, 1992) orders were made to the best judgment of the assessing officer. Thereafter, the dealer moved an application on June 19, 1992, for reopening of those assessment proceedings under section 10-C of the Rajasthan Sales Tax Act, 1954. That application of the assessee was allowed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of imagination, be within limitation under section 10-B(2). It was also contended by the learned counsel that order purported to have been made on January 13, 1992 itself was beyond limitation, because in fact it has been passed actually on March 14, 1992, as found by the Tribunal and therefore order having been passed beyond limitation on March 14, 1992, the application dated June 19, 1992 and any proceedings subsequent thereto cannot be of any avail, as they were wholly superfluous and can have no legal existence. He places reliance in the case of Jaipur Udyog Ltd. v. Commercial Taxes Officer, Special Circle, Ajmer [1979] 44 STC 456 (Raj). 7.. Having carefully considered the rival contentions and relevant provisions of the Act, I am of the opinion that these revisions merit acceptance. 8.. Section 10B: Prescribed time-limit for assessments or orders to be made under various circumstances envisaged under the Act. Subsection (1) of section 10-B governs the period of limitation for completion of assessment proceeding generally in different circumstances by the assessing authority which are pending before him. Sub-section (2): deals with timelimit for giving effect to direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, for reasons to be recorded in writing, such period may be extended by the Commissioner in given case by further period not exceeding six months. As in the present case the order passed by the Deputy Commissioner (Appeals) directing the assessing authority to make fresh assessment was communicated to the assessing authority on March 14, 1990 by serving the copy of order on him, in pursuance thereof the order could have been made within two years of that date. There is no doubt that order made on March 13, 1992 is to be held within limitation. However, it is contended on behalf of the dealer that order made on March 14, 1992 was not within two years but beyond two years. According to learned counsel the date on which period commences and the date on which order is made are both to be included in computing the period that prescribes any sort of limitation. 10.. There cannot be any doubt that if the order in the first instance passed in pursuance of the appellate order was beyond limitation, no amount of subsequent proceeding could have validated such orders. The orders would be stillborn in such case, no remedial action was required to be taken by the assessee against such stillb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case the period of two years within which the order was to be made by the assessing authority in respect of an order communicated to him on March 14, 1990 would start on March 15, 1990 and would end on March 14, 1992 and not earlier thereto. The orders made on March 14, 1992 are clearly within the expression "within two years from the date of communication". 13.. In a Bench decision of the Andhra Pradesh High Court In re V.S. Metha AIR 1970 AP 234, the same view has been expressed. The question arose in the context of section 106 of the Factories Act, 1948 which was couched in the like manner. Section 106 of the Factories Act provided that : "No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector". The Factory Inspector visited the Factory on August 29, 1966 and lodged a complaint on November 29, 1966. The situation was very much like the present case. Like question was raised before the court that complaint lodged on November 29, 1966 was not within the period of three months and therefore the court had no juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question was whether communication from the Controller was received by this landlord within a week from his sending the notice to the controller. The communication was received by the controller on June 7, 1949, and the option letter of controller reached the landlord on June 14, 1949, the like question-whether period of one week ended on June 13, by including June 7, the day of receipt of communication or will end on June 14, by excluding the day of receipt of communication was answered by the court thus: "Commonsense requires that 'within a week' should mean the exclusion of the date of the occurrence as otherwise we would be taking into consideration fractions of a day and calculate practically from the previous day. Then the spirit of this provision is that the Accommodation Controller must have a clear week for making up his mind whether he should allot the house to a tenant or he should not exercise his option." 16.. The question that came up before consideration of a Division Bench of Nagpur High Court in Miss Avi J. Cama v. Banwarilal Agarwal AIR 1953 Nagpur 81 was with respect to computation of period within which election petition could be filed under City of Nagp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s must commence from the next date and the date on which the order is made is to be included viewed from any angle the order even if passed on March 14, 1992 in pursuance of the order of appellate authority communicated to the assessing authority on March 14, 1990 was within the limitation and that cannot be condemned as having been made beyond time is stillborn, having no life. Contention to that effect of the learned counsel for the respondent is rejected. 20.. I am unable to hold that original assessment orders in the first instance itself were time-barred. As I have come to conclusion that the order even if made on March 14, 1992 is also within limitation I do not propose to examine the question whether order in first instance was in fact made on March 13, 1992 or March 14, 1992. 21.. The orders made even on March 14, 1992 were within limitation from the date of communication of appellants order to the assessing authority. Thus question of holding the first order to be time-barred and giving no jurisdiction to proceed further in the matter also needs no further consideration. 22.. The next question arising for consideration is that when the order dated March 13, 1992 /Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er having come into force on March 13th/14th, 1992, the assessee made an application under section 10-C on June 19, 1992. When that application was allowed and the matter was reopened his case had to be considered under section 10-B(1)(iv) and any order by the assessing officer ought to have been made, not after the expiry of two years from June 19, 1992. Admittedly the assessment order after the proceeding came into existence under section 10-C were made on January 15, 1994. Such order has to be considered on the yard-stick of section 10-B(1)(iv) and if so considered are obviously within limitation. 24.. The contention of the learned counsel for the petitioner that section 10-B(1)(iv) and section 10-B(2)(ii) are incongruous and cannot operate in same proceedings is also not sustainable inasmuch as both the provisions operate in different circumstances. While section 10-B operates in respect of order which comes into existence in compliance of the direction contained in an order of appeal or revision on reference made to the High Court or any other competent court, the provision of section 10-B(1)(iv), comes into operation where any authority makes an operative order on best judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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