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TMI Blog2002 (5) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... ices were issued under the 1941 Act. As such the part of the assessment with regard to intra-State sale under the 1941 Act is not being assailed by the petitioner. But so far as that part of the interState sales are concerned, those are being challenged, since these are governed under the 1956 Act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 Act and the order dated October 23, 1998 purporting to reopen the assessment in respect of inter-State sales governed by the 1956 Act, on the same ground. 2.1. He points out that neither in the notice, which are annexure "B" series, nor in the impugned order dated October 23, 1998 being annexure "C", any reference to the 1956 Act has been made. The entire reference is in respect of 1941 Act. Since the liability accrues under different statutes, particularly, the 1956 Act, so far as inter-State sale is concerned, the same cannot be reopened under the 1941 Act. He further contends that in no manner the 1956 Act could be resorted to on the basis of the impugned order contained in annexure "C", in view of absence of any reference to the provisions of the 1956 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe of reopening when the inter-State and intra-State sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach. 3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure "R" to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto. 3.2. She also points out that the Deputy Commissioner himself had reopened the assessment, which is apparent from the order itself. The Commercial Tax Officer had no choice but to assess. The order of reopening was passed by the Deputy Commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-State and intra-State sales, as mentioned in the order itself. Since it was a combined order, it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different years were issued by the Deputy Commissioner, Commercial Taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 Act relating to an assessment made under section 11E(1) of the 1941 Act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 Act shall not be made in accordance with the provisions contained in section 11E(2) of the 1941 Act. 5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-State sale, the tax is collected by the Central Government under the 1956 Act. Whereas in respect of intra-State sales, the tax is collected by the State Government under the 1941 Act. The 1956 Act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the State Government under 1941 Act is utilised for the purpose of collection of tax under the 1956 Act. The Rules are framed under the Central Sales Tax Act by virtue of section 13 of the 1956 Act. Under the said provision, the Central Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made under section 11E and where a dealer writes under sub-section (2A) of that section to an Assistant Commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice. (2) After considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the Deputy Commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly. (3) On receipt of the order referred to in sub-rule (2), the assessing authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions was also mentioned in the order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-State sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-State sale for 1989-90. Thus, the very reference to inter-State sale indicates that the reopening was in relation to both inter-State and intra-State. Admittedly, inter-State sale is governed by 1956 Act. Therefore, on this ground the order cannot be said to be bad. 6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 Act. In fact, it is not necessary to refer to 1956 Act, since the reopening was aimed at making under the provision of section 11E read with rule 54AA of the 1941 Act and 1941 Rules respectively. The direction to reopen the four years assessment has a reference to the inter-State and intra-State sales mentioned in the said order. The order of the reopening will be operative in respect of intra-State s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner itself had disclosed the suppressions made by it, which is annexure "R" to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel. Conclusion: 7.. Rule 9 of the 1958 Rules prescribes that reopening is to be made in terms of section 11E and rule 54AA of the 1941 Act and the 1941 Rules respectively. Therefore, when reopening is made through a notice under section 11E and rule 54AA of the 1941 Act and Rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 Act or non-reference to the provision of 1956 Act, the petitioner has suffered any prejudice. Order: 8.. In these circumstances, I do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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