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TMI Blog2003 (4) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... to assessment under the provisions of the Bihar Finance Act, 1981. Each of the petitioner has furnished its return and paid the tax on the sales and purchases as shown in the return. It is not in dispute before us that the tax has been paid on the turnover shown in the return. In C.W.J.C. No. 8092 of 2002 (Reckitt Benckiser Ltd. v. State of Bihar) annexure 5 series are the orders under challenge which are in relation to the assessment year 2000-2001 and assessment year 2001-2002, writ application C.W.J.C. No. 8127 of 2002 and 8128 of 2002 have been filed by M/s. Godrej Saralee Ltd., being aggrieved by the orders passed by the authority for the assessment year 2000-01 and 2001-02 respectively. Impugned orders have been annexed at annexure 9 in each of the writ application. 3.. It is not in dispute before us that show cause notices were issued to each of the petitioner, they had filed their show cause and after affording an opportunity of hearing to each of them the final orders were passed against their interest. In C.W.J.C. No. 8092 of 2002 (Reckitt Benckiser Ltd. v. State of Bihar) the assessing officer observed that the said writ applicant did not pay the tax in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 20(1)(a) of the Act. 6.. It was also submitted before the court that the products in which the petitioners are dealing are in fact insecticide/pesticide which will attract only 4 per cent tax and the department is absolutely unjustified in observing that the product is not insecticide or pesticide. To counter this learned counsel for the State placing reliance upon the judgment of the Supreme Court in the matter of Bombay Chemicals AIR 1995 SC 1469 submitted that every disinfectant cannot be treated to be insecticide or pesticide and as in the present matters the petitioners are dealing in mosquito repellant which in fact are disinfectant, the department is justified in observing that the sale would attract 8 per cent tax. 7.. Before entering into the rival submissions raised by the parties it would be useful to quote the judgment of this Court in the matter of Pro Agro Seeds Co. Ltd. v. State of Bihar [2003] 132 STC 226; (2002) 4 PLJR 657, though the question was little different in the said matter but the judgment could still provide a proper guideline to us. In the said matter the attack was on the directions issued by the Commissioner, Commercial Taxes. It was argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that he shall in addition to any tax which is or may be assessed under section 17, pay by way of penalty, in a case falling in clause (a), a sum not exceeding three times but not less than an amount equal to the amount of tax and in a case falling in clause (b), a sum not exceeding two times but not less than an amount equal to the amount of tax on the suppressed turnover or on concealed or incorrect particulars. (2) The penalty under sub-section (1) may be imposed before completion of assessment, and for determining the amount of penalty, the prescribed authority may quantify the amount of tax provisionally in the prescribed manner. (3) Any penalty imposed under sub-section (1) shall be without any prejudice to any action which is or may be taken under section 49." 10.. Section 20(1)(a) authorises the prescribed authority in the course of any proceeding or otherwise that after recording its satisfaction that a registered dealer or a dealer to whom grant of registration certificate has been refused under the third proviso of sub-section (2) of section 14 has concealed any sales or purchases or any particulars thereof, with a view to reduce the amount of tax payable by him, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of hearing to the assessee may record a finding that the tax was paid in accordance with law or not. Non-payment of proper tax certainly would not fall within the domain of section 20(1)(a). It would apply to the cases where a dealer purposefully conceals the sales or purchases or any particulars thereof with a view to reduce the amount of tax payable by the said dealer or where such dealer has furnished incorrect statement of his turnover or incorrect particulars of his sales or purchases in the return furnished under sub-section (1) of section 16 or otherwise. 14.. Concealment in fact is a positive act because a person does something so that the reality does not come out. In the present matter undisputedly the return filed by each of the petitioner projects and depicts correct figures of sales and purchases. This we are observing because at this stage the department has not stated before us that the figures relating to turnover shown in the returns are incorrect. This observation, however, is for the purposes of these writ applications only. If there is no concealment then it cannot be argued that the act was with a view to reduce the amount of tax by the dealer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the matter that the items under dispute are or not insecticides/pesticides then no scope would be left for the assessing officer to decide the matter in accordance with law. Whether the products in dispute are insecticide/pesticide or not will have to be decided by the assessing officer while passing final assessment orders. 17.. For the reasons stated above we are of the considered opinion that present was not a stage where an action under section 20(1)(a) of the Act could be taken. Section 20(1)(a) is to be applied to an exigency or a situation where the assessing officer forms an opinion that there is a concealment of sales or purchases or particulars thereof with a view to reduce the amount of tax payable by the dealer. At this stage the assessing officer cannot record a finding that the product in dispute would fall in a particular entry or not and what would be the tax payable. If that is allowed to be done then nothing would be left to be decided at the time of final assessment. 18.. The orders contained in annexure 5 series in C.W.J.C. No. 8092 of 2002 and annexure 9 in each of the Writ Application No. 8127 of 2002 and 8128 of 2002 are hereby quashed. The assessing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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