9911796707
TMI Blog2002 (7) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... the return for turnover tax under Act, 1941 furnished return and challan showing deposit of tax according to return for the period of 4 quarters ending on March 31, 1989 under the Act, 1941. By a notice dated November 29, 1995 the petitioner was informed that the assessment for the said period was completed under section 11E(1) of the Act, 1941 by operation of law. Subsequently, on February 22, 1997 the petitioner received, another notice dated February 19, 1997 from the respondent No. 1 asking him to show cause as to why fresh assessment should not be started by reopening the assessment according to the provision of section 11E(2) of Act, 1941. On March 26, 1997, the petitioner was heard and by an order passed on the same date the respondent No. 1 directed the respondent No. 3 to make fresh assessment for the said period without considering the submission of the petitioner that the return was incomplete under law, since the relevant turnover return was kept blank. 4.. On January 27, 2000, the respondent No. 1 took up hearing of the assessment proceeding in compliance with the order dated March 26, 1997 and assessed gross turnover at Rs. 30,00,000 to the best of his judgment, Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank. Therefore, the return since not filed under section 10 is not at all valid in the eye of law. The provision of section 11E(1) for deemed assessment cannot be made applicable in such a case where no valid return under law was filed. It is further submitted that under the provision of section 10(3) of the Act, 1941, the registered dealers have to furnish returns in accordance with this provision and then only such return could be accepted as correct and complete. Since the return was incomplete and improper, the assessment under section 11E(1) of the Act, 1941 cannot be completed the impugned order dated March 26, 1997 passed by the Deputy Commissioner for reopening the deemed assessment, becomes infructuous. The order therefore, is illegal, since there was no existence of deemed assessment at all under section 11E(1) of the Act, 1941. 9.. It is also argued that the section 11E(2) of the Act, 1941 can only apply where the dealer is found to cancel his sales or furnish incorrect statement. But in the instant case, no such ground of concealment whatsoever was disclosed by the respondent No. 1, i.e., the Deputy Commissioner, before passing the order dated March 26, 1997. The resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of turnover tax; and (3) If the assessment held under section 11(1) of the Act, 1941 is bad in law. 12.. Section 10(3) of the Act, 1941 provides the manner of filing returns by a registered or certified dealer. Before filing the return under sub-section (2) of section 10 such dealer have to pay the full amount of tax due from him under this Act according to such return and furnish a receipted challan showing payment of such amount. Therefore, the return certainly is to be furnished along with the amount of tax due from him as shown in the return. At the same time, sub-section (4) of section 10 provides that the amount of tax is subsequently is found to be greater than the amount of tax shown in the original return, the same amount can be deposited before the date prescribed for furnishing the next return. The Rule 54A of Bengal Sales Tax Rules, 1941 also provides that the deemed assessment if made, under section 11E(1) of the Act 1941 the dealer shall pay the balance amount of tax which is found payable by him under the Act after checking up the figures shown in the return for the period of assessment. Therefore, non-payment of exact amount of tax at the time of filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the dealer has no objection if the deemed assessment be reopened for fresh assessment to cover the mistake made by the dealer". It is thus clear that the learned Deputy Commissioner without complying the provisions of section 11E(2) of the Act, 1941 passed an order for reassessment only on the ground that the dealer withheld the payment of turnover tax by mistake for the relevant periods. But, non-payment of turnover tax definitely, cannot be a ground for reopening the assessment made under section 11E(1) of the Act, 1941. It does not thus, appear from the impugned order of the learned Deputy Commissioner that the dealer was guilty of concealment of any sales of furnishing incorrect statement of his turnover of sales in his return. Therefore, the order of reopening of the assessment was not made in compliance with provisions of section 11E(2) of the Act, 1941, the order, in our opinion, thus, is illegal. It was also held by this Tribunal in a case No. RN-394 of 1999 (M.S. Prayas Papers Private Limited v. State of West Bengal) that non-payment of any tax or turnover tax cannot be the ground for reopening of the deemed assessment under the relevant provisions of the Act, 1941. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a given point of time. When a decree or order passed by inferior court, Tribunal or authority was subjected to remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either waywhether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, Tribunal or authority which is the final binding and operative decree or order wherein merges the decree or order passed by the court, Tribunal or the authority below". 16.. Therefore, under the doctrine of merger, as we find, there cannot be more than one operative orders governing the same subject-matter at a given point of time. Any order which is placed before the superior authority and disposed of finally by such authority either confirming or reversing the order of the authority below, such order of the lower authority merges with the order of the superior authority resulting only one operative order. In the instant case, an order of re-opening passed by the Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher forum. Thus, considering the settled legal principles, we are of opinion that the impugned order of reopening the assessment passed by the Learned Deputy Commissioner is barred by limitation and binding upon the petitioner. Hence, the order of reassessment passed by the respondent No. 3 and the appeal decided by the respondent No. 2 cannot be set aside at this stage on the ground that the order of reopening of the assessment is illegal. Moreover, the petitioner suffered no injury by the reassessment and appellate order inasmuch as, he all along participated in both the proceedings. 18.. There is no sufficient and bona fide ground for condonation of delay. The application along with application filed for the period of reassessment for 4 QE March 31, 1990, March 31, 1991 and March 31, 1992 being registered as Case Nos. RN 301 of 2000; 302 of 2000 and 303 of 2000 merit no consideration. All are liable to be dismissed. 19.. All the aforesaid applications are thus dismissed without costs. [Against this judgment the assessee filed a writ application.] Chakraborty, for the petitioner. Mrs. Seba Roy, for the respondents. JUDGMENT This writ application is directed against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without jurisdiction in view of the fact that for non-filing of any return for turnover tax, the provision of section 11E of the Act could still be applied and therefore, the order reopening the assessment on the aforesaid ground was totally bad, illegal and without jurisdiction. It is not disputed before us that in the event the order reopening the assessment is set aside, subsequent proceedings, namely, the proceedings for final assessment and also the appellate order should automatically come to an end. 4.. Such being the position let us now consider whether the Tribunal was justified in rejecting the petition of the petitioner by holding that the application filed before the Tribunal for quashing and/or setting aside the order reopening the assessment was bad or not. 5.. From the impugned order it is an admitted position that the Tribunal had held that the said application filed before the Tribunal was barred by limitation. It is needless to say that the Tribunal in the impugned order has not gone into the merits of the application for condonation of delay in filing the same. 6.. Mr. Chakraborty has drawn our attention to the statements made in the application for condon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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