9911796707
TMI Blog2001 (7) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... er claiming identical relief and the said application was registered as RN-261 of 2001. Both the applications since were filed on identical facts and conten- tions, are taken up together for hearing and order. In RN-261 of 2001 the prayer for re-opening the assessment is made for the period four quarters ending on March 31, 1999 deemed to have been made on the same date, i.e., on December 31, 1999. 2.. The case of the petitioners in brief, is that the petitioner No. 1 is a registered dealer and the petitioner No. 2 is one of the partners of the petitioner No. 1. They are engaged in selling tea seeds grown in horticulture garden. In course of assessment for the four quarters ending March 31, 1999 a question arose, if the tea seeds availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r re-opening the assessment for the aforesaid periods deemed to have been made on December 31, 1999 on the ground that the petitioners were entitled to get refund of taxes already paid on sales of tea seeds by mistake. The said application was heard by the respondent No. 3 as per direction of this Tribunal and a composite order was passed on April 20, 2001 rejecting the petitioners' prayer for re-opening deemed assessment on the ground that it was not made within six months from the date of the assessment as required under section 46A(4) of the Act, 1994. The said order passed by the respondent No. 3 is illegal and misconceived inasmuch as, the peti- tioners were not aware that the assessment under section 46A would be done, which deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Commercial Taxes [1999] 114 STC 22 (WBTT) it is submitted that the expression appearing in the section such as, "the date of such order" means "the date of communication of such order " since without communication of the order the aggrieved party cannot have the cause of action for taking further steps. Hence, the learned lawyer for the petitioners submits that the application for re-opening the impugned assessment was done within the prescribed period of limitation and in terms of the provision under section 46A(4) of the Act since the order was com- municated by the respondent No. 3 on December 20, 2000. 5.. The learned State Representative submits that the decision relied on behalf of the petitioners [Shri Murli Manohar Mandhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igibility period the assessment shall be deemed to have been made on the 31st day of December, 1999 under sub-section (1) of section 45 of the Act. Therefore, the dealers who have already filed returns for the relevant period supposed to know that the assessment was deemed to have been made on 31st December, 1999. Hence it is not becoming necessary to inform the dealer further about the date of the deemed assessment. 7.. It is the contention of the learned lawyer for the petitioners that since the section specifically provides that the assessment deemed to have been made under sub-section (1) of section 45, all the necessary formalities provided under the rules, i.e., sending copy of the orders, demand notices, etc., similar to those of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler or the Commissioner is not satisfied that the returns furnished are correct and complete. Whereas in case of deemed assessment no such opportunity is given to the dealer and where returns are filed as provided under section 30(4) of the Act, the assessment is deemed to have been made under section 45(1) of the Act. Hence, it cannot be said that reference of section 45(1) within the provision of section 46A means to say that assessment was done under section 45(1) of the Act. In that case the object of the provision of section 46A will be infructuous and the provision shall have no force for holding the assessment as contem- plated in the section itself. We therefore, cannot accept the contention of the learned lawyer for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment to the petitioners. The interpretation made by the decision reported in Shri Murli Manohar Mandhana v. Commissioner of Commercial Taxes [1999] 114 STC 22 (WBTT) that the "date of order" means "the date of communication", is not applicable with reference to the provisions embodied in section 46A of the Act, since no formal order is passed. 8.. Moreover, it may further be noticed that under sub-section (2) of section 46A, the Commissioner under certain conditions has been empowered to re-open the assessment within a period of four years from the date of assessment deemed to have been made in accordance with the provisions of sub-section (1). Now, if the conten- tion of the learned Advocate for the petitioners that the date of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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