9911796707
TMI Blog2004 (10) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... "the MPGST Act") now known the Madhya Pradesh Commercial Tax Act, 1994, the Central Sales Tax Act, 1956 and the M.P. Entry Tax Act, 1976. The appellant's original assessments for the period from April 1, 1978 to March 31, 1979 and April 1, 1979 to March 31, 1980 though were completed by the then assessing authority but subsequently they were reopened under section 19(1) of the MPGST Act, 1958 on the basis of a report of a Flying Squad forwarded to the assessing authority. The said report was prepared and forwarded by the Flying Squad Authorities purportedly exercising powers under section 29-D of the MPGST Act, 1958. It appears that though on the basis of the said report, reassessment proceedings were completed by the assessing authority but a copy thereof was not supplied to the appellant nor was it given an opportunity to cross-examine the witnesses who deposed against it and were relied upon by the department for reassessment. The reassessment proceedings were completed, vide the order dated September 14, 1984. It is further the appellant's case that similar assessments were also done on the basis of the same report of the Flying Squad for the period from April 1, 1980 to March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess within a period of two calendar years from the commencement of such proceedings, the tax payable by such dealer and the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount." Looking to the above provisions, this Court held that the Tribunal committed an error of law in holding that a reasonable opportunity had been afforded to the assessee for meeting the allegations against it based on an inspection report of the Flying Squad and also in further holding that there was no necessity to afford it an opportunity to cross-examine witnesses. Thus, the court found that the Tribunal decided the case in a manner being contrary to the provisions of section 19(1) of the MPGST Act, 1958. 4.. Towards compliance of the aforesaid order, the Revenue Board, being the competent Tribunal, heard the contentions of both the parties and transmitted the case to the assessor for granting asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round that the State Government extended the period of limitation up to May 31, 2001 under section 27(9) of the MPCT Act, 1994, vide Notification No. (85) dated December 20, 2000 and Notification No. (36) dated April 30, 2001. The revisional authority also held that in terms of proviso (c) of section 18(8) of the MPGST Act, the period of limitation prescribed under this sub-section would not apply to an order passed under section 19(1) of the MPGST Act. On reproduction the said proviso reads as under: "(c) nothing contained in this sub-section shall apply to proceedings initiated under section 19 or any proceedings other than assessment of tax that may be instituted under any other provisions of this Act." As regards constitution of Flying Squad in terms of section 29-D of the Act, the Commissioner found the contention not sustainable as this plea was not taken either in the first appeal before Deputy Commissioner against the original order of assessment or in the second appeal before the Revenue Board or before the High Court in reference. Thus, the case was again remanded to the assessing officer for afresh consideration to pass appropriate order after hearing the assessee. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: Section 27(8) and (9) of the MPCT Act, 1994. "(8) The assessment shall be made under this section-- (i) in respect of a registered dealer and a dealer referred to in clause (b) of sub-section (6) within a period of two calendar years from the end of the period for which assessment is to be made; and (emphasis supplied) (ii) in respect of a dealer who has failed to apply for registration, within a period of two calendar years from the commencement of proceedings under sub-section (6): (emphasis supplied) Provided that-- (a) where a fresh assessment has to be made to give effect to any finding or direction, contained in any order under sections 61, 62 or 70 or to any order of the Civil Court, High Court or Supreme Court, such assessment shall be made within a period of two calendar years from the date of the order containing such finding or direction or the order of the Civil Court, High Court or Supreme Court, as the case may be. If for any reason such fresh assessment is not made within the specified period, the Commissioner shall take steps to ensure that assessment is made as expeditiously as possible; (emphasis supplied) (b) where an order of assessment ex parte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Here italicised (I) There has been a considerable increase in the number of dealers liable to pay tax under the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (No. 5 of 1995), the Central Sales Tax Act, 1956 (No. 74 of 1956) and the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (No. 52 of 1976); (II) There has been no increase in the number of authorities competent to make assessment of such dealers under the said Acts, commensurate with the increase in the number of such dealers and their assessment cases; (III) The assessment proceedings of all such dealers due for completion by the end of the calendar year, 2000 under the provisions of sub-section (8) of section 27 of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (No. 5 of 1995), have to be completed before the expiry of the calendar year, 2000. (IV) Correct assessment of such dealers, on merits have to be made by the said authorities after affording them a reasonable opportunity of being heard; (V) Despite efforts being made by the said authorities to complete such assessment proceedings by the end of the calendar year, 2000 such proceedings cannot be completed by the end of the said period; an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich he had relied upon also before the learned single Judge. They are: Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer [1965] 16 STC 607 (SC), Commissioner of Sales Tax, Orissa v. Halari Store [1997] 107 STC 579 (SC), State of Orissa v. Debaki Debi [1964] 15 STC 153 (SC); AIR 1964 SC 1413 and Commissioner of Income-tax, Kerala v. P. Krishna Warriar [1964] 53 ITR 176 (SC); AIR 1965 SC 59. Elucidating the ratio of the aforesaid judgments in support of his arguments learned counsel has urged that in taxing statutes, a proviso to section can be read as an independent provision as it carves out an exception to the section and qualifies the provisions thereof. He has also referred to Craies on Statute Law (Seventh Edition by S.G.G. Edgar, page 218) to contend that in respect of construction of proviso, the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it [Leveridge v. Kennedy (1960) NZLR 1]. Similarly he has also referred to another authoritative treatise on the subject being Princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under the courts' orders but rather it would have created a different class for such cases by way of introducing a separate sub-section or section in the Act. It also appears that the Legislature did not want to leave a vacuum or ambiguity in respect of such cases which have been covered under the proviso and that is why this area has been specifically covered by way of proviso (a) of sub-section (8). Further in a taxing statute if the limitation is provided in the Act itself and the Act also empowers the Government to extend the period of limitation, the court in a given case, can only examine as to whether the assessment has been done within the period of limitation as contained in the provisions or the extended period of limitation under a valid notification issued by the Government or a competent authority as empowered by the Act. In the instant case, the State Government is empowered under sub-section (9) to extend the period of limitation in respect of cases falling in section 27(8) including its proviso (a). The sub-section (8) so also its proviso only deal with the period of limitation which in both the cases is the same, that is two calendar years, hence, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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