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TMI Blog2002 (5) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to have been assessed on December 31, 1999. By operation of such newly introduced section, according to the writ petitioner, returns filed by the writ petitioner were deemed to have been assessed on December 31, 1999 notwithstanding the fact that notices of assessment under section 45(1) were issued by the concerned Commercial Tax Officer before December 31, 1999. In view of the subsequent introduction of section 46A of the West Bengal Sales Tax Act, 1994 (hereinafter referred to as "the Act") the writ petitioner by a letter dated May 19, 2000 intimated the concerned Commercial Tax Officer of such legal position and also in the said letter he has challenged the jurisdiction and authority of the concerned Commercial Tax Officer to issue notices of assessment for the aforesaid periods. In spite of raising the question of jurisdiction of the concerned Commercial Tax Officer to proceed to assess the writ petitioner under section 45(1) of the Act and in spite of introduction section 46A of the Act, the Commercial Tax Officer by an order dated June 19, 2000 made an ex parte assessment of the returns for the periods in question by raising a demand of Rs. 6,14,386. Challenging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of sub-section (4) of section 30 of the Act, the Tribunal ought to have held that there was substantial compliance with the provisions under section 46A of the Act as the writ petitioner after finalisation and reconciliation of books of accounts had filed further returns wherein tax payable along with interest had also been deposited and the receipted challan showing such payment were annexed with the returns. Accordingly, Mr. Bhattacharya contended that the writ petitioner had complied with the requirements laid down in clause (1) of section 46A. It was further contended by Mr. Bhattacharya that even assuming there was any short payment of tax or interest by the writ petitioner even then a fresh assessment of the same returns may be initiated only in the manner prescribed under sub-section (2) of section 46A where the method for initiating a fresh assessment has been provided under the provisions of law. According to Mr. Bhattacharya the respondent No. 1 could not act outside the scope of provisions of law and initiate fresh assessment proceedings of returns already deemed to have been assessed. It was lastly contended by Mr. Bhattacharya that the Tribunal had failed to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays that before any dealer furnishes a return required by subsection (2) or sub-section (3), he shall, in the prescribed manner, pay into a Government treasury or the Reserve Bank of India the full amount of tax due from him under this Act according to such return, and shall furnish along with such return a receipt from the Treasury or Bank showing the payment of such amount: Provided that a registered dealer shall, subject to such conditions as may be prescribed, pay in the prescribed manner the tax payable under this Act for any prescribed part of the period for which a return is required to be furnished under sub-section (2) or sub-section (3) by such date as may be prescribed after the expiry of the prescribed part of the period as aforesaid. Chapter 7 deals with assessment of tax, imposition of penalty, payment, collection and recovery of tax, interest and penalty and refund of tax, interest and penalty. Now we refer to section 46A of the Act which according to the writ petitioner is the section by which the returns submitted by the writ petitioner for the periods in question must be held to be in compliance with such provision. Section 46A of the Act runs as follows: "46A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r price or part thereof, or specified purchase price or part thereof, has not been disclosed in such return, or has escaped levy of tax thereon at the appropriate rate, erroneously or otherwise, or (b) the deductions from the gross turnover of sales were claimed under sub-section (3) of section 17 in such return, erroneously or otherwise, in excess of what is admissible under sub-section (3) of that section, or the deductions so claimed in such return are not supported by evidence referred to in sub-section (3) of that section, or (c) claim for lower rate of tax has been preferred in such return under sub-section (2), or sub-section (2A) of section 17 in respect of any turnover of sales without any valid evidence referred to therein, which has resulted in reduction of the amount of tax payable by such registered dealer or the State Government has suffered loss of revenue on any of the grounds referred to in clause (a), clause (b), or clause (c) of this sub-section on account of such registered dealer in respect of such year or part of such year, the Commissioner shall, within a period of four years from the date of assessment deemed to have been made in accordance with the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or before the 30th day of September, 2001, the Commissioner may, if he is prima facie satisfied about such error in fact or in law as stated in clause (a) or about such fact as stated in clause (b), within one year from the date of receipt of such application, reopen such assessment, by order in writing, for making a fresh assessment of tax for such year under sub-section (1) of section 45: Provided that the fresh assessment of tax under sub-section (1) of section 45 for such year shall be made, notwithstanding the provisions of section 48, on any date within two years from the date of passing of the order in writing for reopening of the assessment deemed to have been made in accordance with the provisions of subsection (1) of this section in respect of such year. (5) The Commissioner shall, while making the fresh assessment in pursuance of sub-section (2) in respect of any registered dealer for any period, direct such dealer to pay, in addition to the tax so assessed and penalty imposed, if any, under sub-section (1) of section 45, a sum not less than twice, but not exceeding thrice, the amount of tax assessed by way of further penalty: Provided that no penalty under this su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiate assessment in terms of section 45 of the Act. In this case admittedly, the writ petitioner submitted the returns relating to the periods in question along with copies of receipted challan evidencing payment of taxes admitted in such returns by him. After finalisation and reconciliation of books of accounts the writ petitioner had filed further returns wherein the tax payable along with interest was also paid and the receipted challan along with such payment was annexed to the return. That being the position we are unable to hold that the writ petitioner had not complied with the requirements laid down in clause (A) of the proviso to sub-section (1) of section 46A of the Act. That apart, sub-section (4) of section 30 provides that before any dealer furnishes a return required under sub-section (2) or sub-section (3) of that section, he shall pay the full amount of tax due from him according to the return furnished by him and he shall submit receipted challan in respect of such payment along with the return. From a plain reading of section 30(4) of the Act it is clear to us that the payment required to be made by the writ petitioner at the time of furnishing the return is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipalities Act and Rules thereunder and while considering whether certain provisions and such statutes were mandatory or directory provisions observed as follows: "We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the Legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines." (emphasis supplied). 5.. Keeping the aforesaid observations of the Supreme Court in mind on the interpretation of statutes and in view of the admitted fact as discussed above, we are, therefore, also of the view that the technicalities cannot stand in the way and it is the substance that counts and must take precedence over mere form. For the reasons aforesaid the impugned order of the Tribunal is set aside. The w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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