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TMI Blog2003 (9) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... 1991. The said application had succeeded in part in that the Tribunal had set aside by its order dated June 24, 1998 all the notices dated February 20, 1997 on the ground that the 5 notices had never been served and that the applicant was not even aware of the assessment proceeding and all the proceeding till the issuance of the 5 notices had been completed "behind the back of the applicant" and thus there was "flagrant disregard of the principle of natural justice." However, the Tribunal had held also that "there was no time-limit for initiating a proceeding for fixation of liability. But such liberty to initiate, at any point of time, a proceeding for fixation of liability does not authorise the authority to proceed for assessment for the period whose assessment has already become time-barred". Finally the Tribunal concluded that the "application was allowed in part" and though the notices under section 11(2) of the 1941 Act were set aside, "if after proceeding under section 4(2) read with section 4(4a) the applicant is found to have become liable to pay tax, the competent authority shall be at liberty to proceed with the assessments for the periods the assessment of which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment should have been made according to section 11(2a) by June 30, 1998 while it was actually made on April 24, 1999. 7.. The learned advocate for the petitioner admits that the petitioner had received a notice dated November 17, 1998 for fixation of liability under the 1941 Act on November 25, 1998 directing him to appear before the assessing authority on November 26, 1998. Then again the petitioner admits that he was served with a notice of demand and assessment order on May 21, 2001 and the assessment was stated to have been made on April 24, 1999. The petitioner has contended that the assessment was time-barred as it should have been made by June 30, 1998. Furthermore, on his own admission the respondent had made the assessment order on April 24, 1999 without setting aside the previous assessment which could have given the respondent a further period in terms of the second proviso to section 11(2a) of the Act of 1941. 8.. As for the case under RN-319 of 2001 the notice under section 4(2) read with section 4(4a) of 1941 Act was issued on February 20, 1997. The accounting year of the petitioner ended in March every year and in terms of section 11(2a) the tax assessment under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od April 1, 1992 to March 31, 1993 was made on April 26, 1999 (i.e., within time) but he points out that the notice in respect of the said assessment was issued on May 21, 2001, i.e., nearly 2 years after the cutoff date of June 30, 1999. The learned advocate for the petitioner contends that the assessment order was pre-dated "to save the period of limitation". As normally the assessment order and demand notice are prepared without a long time gap the assessment order should be cancelled in case of such long delay on the presumption that the assessment order was also actually made on or around the date of demand notice, i.e., May 21, 2001, by which time the assessment was time-barred. 12.. It is true that such presumption, as averred by the learned advocate for the petitioner, can be valid in certain circumstances. The attention of the Tribunal has been invited to a judgment of the West Bengal Taxation Tribunal dated April 4, 1995 in case No. RN-212 of 1994 (Mafatlal Industries Ltd. v. C.T.O. [1996] 101 STC 461). In that case the notice of demand was served more than a year after the expiry of limitation and this delay could not be explained satisfactorily by Revenue. In the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the certificate demand notices for the officer dated June 7, 2000 and January 11, 2000 were addressed to the petitioner's address at 2B, Grant Lane, Kolkata 700 012. Having been pushed to the wall by the said certificate notice for demand amounting to Rs. 6,75,477 for the period April 1, 1990 to March 31, 1991 the petitioner approached the Taxation Tribunal under RN-105 of 2001. His contention in the said case was that "he was a reseller of bycycle, tyre and tubes. He never imported anything from outside the State of West Bengal but purchased goods from various registered dealer on payment of tax and sold the same within the State of West Bengal. Therefore, he had no liability to pay any tax on the sale of goods". The Tribunal in disposing of petition under RN-105 of 2001 did not go into the merits of the case but simply set aside the certificate proceeding as the statutory period of 30 days was not observed by the certificate officer. 16.. It does not appear that the petitioner has, as yet attempted to establish the substantive issue, viz., his absence of liability to pay any sales tax. He has got away with various procedural technicalities, such as limitations o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond the capacity of the petitioner. We have already noted that the assessment in any case was ex parte as admitted by Revenue. The West Bengal Taxation Tribunal itself observed in RN-104 of 1997 that "there was no time-limit for initiating a proceeding for fixation of tax liability". We have already commented on the fact that the petitioner's tax liability has not yet been fixed through a proper hearing. The Tribunal itself while disposing of RN104 of 1997 observed that "if after proceeding under section 4(2) read with section 4(4a) the applicant is found to have become liable Anil Chowdhury v. Commercial Tax Officer [2001] 37 STA 214 (WBTT). to pay tax, the competent authority shall be at liberty to proceed with the assessments for the periods the assessments of which were not time-barred on the date of issue of so notice under section 4(2) of the Act." 20.. Having regard to all side, for the ends of justice, in case No. RN-327 of 2001, we set aside the ex parte assessment dated April 26, 1999 with the direction to the taxing authority to initiate a proceeding for fixation of tax liability of the petitioner afresh after giving the petitioner an opportunity of being heard and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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