9911796707
TMI Blog1999 (9) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... . The shareholders are citizens of India. The company is a registered dealer under the 1941 Act and also under the West Bengal Sales Tax Act, 1994 which has now replaced 1941 Act. RN-255 of 1999 relates to the period of four quarters ending March 31, 1991. The case of the applicant in brief is that returns were filed and taxes were paid on the basis of returns "in strict compliance" of the 1941 Act and the rules framed thereunder (paragraph 4). Under section 11E(1) the returns filed were treated as correct and complete and the assessment was deemed to have been made on June 30, 1993 (paragraph 5 of the application). In the first week of October, 1998 applicant received notice dated September 11, 1998 from respondent No. 1 directing to show cause against the proposal for reopening the assessment for four quarters ending March 31, 1991 under the 1941 Act on the ground that the applicant had furnished incorrect statements of turnover or incorrect particulars of sales in the returns submitted by it. At the bottom of the notice reference was made to findings of the Deputy Commissioner of Commercial Taxes, Chowringhee Circle to the effect that there was loss of revenue and the deemed ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) could not be applied to the periods of four quarters each ending March 31, 1991 and March 31, 1992, because returns were furnished by the applicant beyond the dates prescribed under section 10(2) read with section 10(3). The contention was that deemed assessments under section 11E(1) could be made, had returns been filed within the prescribed dates, and that being the position, section 11E(2) could not be applied. (iv) Regarding the period of four quarters ending March 31, 1992, Mr. Chakraborty appearing for the applicant, contended that the order dated June 3, 1999 could not be sustained, because it relied on the finding in the report of Sri D.K. Chakraborty, Deputy Commissioner, but that report had no adverse finding for that period. That was the last contention on behalf of the applicant. 6.. Mr. J.K. Goswami, learned State Representative appearing for the respondents, submitted that the order dated June 3, 1999 passed by respondent No. 1 in respect of the period of four quarters ending March 31, 1992 reopening the deemed assessment for that period and directing initiation of proceeding under section 11(1), could not be defended, because the contention of Mr. Chakraborty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile passing the impugned order dated June 3, 1999, arrived at his own independent ultimate satisfaction to the effect that the deemed assessment needed reopening. Therefore, the order passed by Sri Baski cannot be challenged on the ground that he had not issued the show cause notice. (iv) The next contention was that section 11E is a special and overriding provision beginning with a non obstante clause. Therefore, the initiation of proceeding for assessment by issuing notice in form VI under section 11(1) was overriden by section 11E(1) which brought about statutory deemed assessment as on June 30, 1993. (v) Then Mr. Goswami contended that section 11E came into operation with effect from April 15, 1993. That provision in that form was not there in the statute, when the Commercial Tax Officer issued the notice of initiation of assessment proceeding under section 11(1) in form VI on March 31, 1992 which is annexure "C" at page 7 of the supplementary affidavit filed by the applicant. When the provision of section 11E came into effect on April 15, 1993, the said notice in form VI became ineffective. (vi) Mr. Goswami opposed the contention of Mr. Chakraborty regarding non-applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11E(1) was rightly applied and the assessment for the said period was rightly deemed to have been made. 9.. The other point made by Mr. Chakraborty for the applicant regarding non-application of section 11E(2) was that section 11E(1) could not be applied to the period, because returns were furnished late, i.e., beyond the prescribed dates. The undisputed fact is that the applicant was obliged to file quarterly returns. Certain receipts were for the first time produced before us (not produced before the authorities below). From those receipts the applicant wanted to show that returns for the quarters ending June 30, 1990, December 31, 1990 and March 31, 1991 were filed respectively on September 4, 1990, February 26, 1990 and May 18, 1991. A receipt was produced to show that the monthly statement (not the quarterly return) for September 4, 1990 was filed on November 6, 1990. But it is undisputed that these receipts were not produced before the authorities below. Nor was this plea of late filing of returns taken even in the present application. In paragraphs 4 and 5 of the application, it was clearly stated by the applicant that it had submitted necessary returns in strict complian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 11E(2). Mr. Chakraborty contended that the notice itself was not valid, because it referred to the report of Sri D.K. Chakraborty, Deputy Commissioner dated April 24, 1997 but did not conform to section 11E(2)(a) or (b). As far as this point is concerned, it was ultimately given up by Mr. Chakraborty. He finally concentrated on the point that a different officer (Sri Baski) passed the order dated June 3, 1999, to which he raised objection. But still, let us say that the notice dated September 11, 1998 issued by Sri M.C. Poddar was valid and lawful. The notice was in terms of clause (b) of section 11E(2). Moreover, if section 11E(2) is read as a whole, it will appear that clauses (a) and (b) are not self-sufficient. Those clauses are to be read with the words"which has resulted in reduction of the amount of tax payable by him". In the notice dated September 11, 1998, apart from mentioning the pre-conditions of clause (b) in the body of the notice, "loss of revenue" was mentioned at the bottom which means that the incorrect statement of turnover or incorrect particulars of sale in the returns had allegedly resulted in reduction of the amount of tax payable by the dealer. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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