9911796707
TMI Blog2007 (2) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby rejecting the revision petition filed by the petitioner. Heard Mr. G.K. Joshi, learned Senior Counsel assisted by Mr. R.K. Joshi for the petitioner and Mr. R. Dubey and Mr. K. Kachyap, learned counsel for the respondents. The concise facts which would be sufficient for effective decision of the present writ petition are that petitioner No. 1, M/s. Chhaganmal Golchha, Janiganj Bazar, Silchar is a partnership firm having its place of business at Janiganj Bazar, Silchar within the State of Assam. The petitioner-firm deals with the business of purchase and sale of mustard oil and refined oil. The petitioner-firm is a registered dealer under the Assam Finance (Sales Tax) Act, 1956. After the Assam Finance (Sales Tax) Act, 1956, had been repealed the petitioner-firm obtained its registration as a dealer-unit under the Assam General Sales Tax Act, 1993. The sale of mustard oil within the State of Assam was exempted from the tax up to July 29, 1992 under section 7(1) of the Assam Sales Tax Act, 1947 vide item No. 21 of Schedule III of the said Act. As such before July 29, 1992 the sale of mustard oil within the State of Assam was exempted from tax but exemption from tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of 1956) 4.. The Assam Purchase Tax Act, 1967 (Assam Act 19 of 1967) (2) Notwithstanding the repeal of the aforesaid laws by this Act and save as otherwise provided in sub-section (3) all rules, notification, registrations or other documents, forms and notice made or prescribed or issued thereunder which were in force immediately before the appointed day, and all proceedings for the assessment or reassessment of any dealer or person in respect of such period may be taken or continued as if this Act had not been passed. (3) Notwithstanding anything contained in sub-section (2) in respect of the following matters relating to any period ending before the appointed day, the provisions of this Act shall apply to (a) an appeal or application for refund, rectification or revision, in respect of any period ending before the appointed day, provided such appeal or application had been made and the time-limit for such appeal or application had not expired before the appointed day; (b) any proceeding by way of rectification or revision in respect of any period ending before the appointed day provided the time-limit for such rectification or revision has not expired before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority for payment of tax as security in respect of the imported goods. Similarly a sum of Rs. 5,650 was paid for the period ending June 30, 1993 at the Shrirampur Check Gate. The petitioner also stated that the taxes paid were not collected from the purchasing dealers in respect of sales of mustard oil. The petitioner preferred appeal before respondent No. 3 challenging the levy of tax on mustard oil under the said assessment orders dated January 6, 1993, December 27, 1996 and December 27, 1996. The appeal filed by petitioner has been rejected by respondent No. 3 (Deputy Commissioner of Taxes, Silchar Zone, Silchar) dated June 15, 1998 with the observation that: Moreover on perusal of the materials on record it is seen that the authority on considering of the available material were not persuaded with the contention of the petitioner that the taxes were not charged or collected by the petitioner, no material evidence whatsoever was produced before the taxing authority that the petitioner/dealer did not charge any tax on the sale of goods. The burden of proof is undoubtedly on the petitioner. A person who seeks to relieve himself from the liability of tax imposed by law is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled Act, i.e., the Assam Finance (Sales Tax) Act, 1956 is 30 days. In such a situation, the assessment order dated January 6, 1993 had attained the finality and cannot be treated as an assessment order against which appeals/applications were pending at the time of enforcement of the Assam General Sales Tax Act, 1993. Such being the unavoidable inference after conjoint reading of sections 19 and 20 of the Assam Finance (Sales Tax) Act, 1956 and section 74 of the Assam General Sales Tax Act, 1993, the assessment order dated January 6, 1993 cannot be set aside in the appeal filed by the petitioner in 1998 before the Deputy Commissioner of Taxes, Silchar Zone, Silchar-respondent No. 3 and the revision petition filed in 1998 before the Additional Commissioner of Taxes, Assam, Guwahati-respondent No. 4. The order dated June 15, 1998 passed by respondent No. 3 and order dated October 5, 1998 passed by the respondent No. 4 for not interfering with the assessment order dated January 6, 1993 is not interfered with by this court. The apex court in Shri Mandir Sita Ramji v. Governor of Delhi reported in AIR 1974 SC 1868 held that . . . When a procedure is prescribed by the Legislature, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in order to decide the legality and/or illegality of the assessment order dated December 27, 1996 for the period ending March 31, 1993 and assessment order dated December 27, 1996 (Annexure 3 to the writ petition) and assessment order dated December 27, 1996 for the period ending June 30, 1993 (Annexure 4 to the writ petition). As discussed above, the Assam Sales Tax Act, 1947 and Assam Finance (Sales Tax) Act, 1956 had been repealed with effect from July 1, 1993 on the enactment of the Assam General Sales Tax Act, 1993 which came into effect from July 1, 1993. The sale of mustard oil within the State of Assam was exempted from tax up to July 29, 1992 under section 7(1) of the Assam Sales Tax Act, 1947. The exemption from tax was withdrawn with effect from July 30, 1992 by the Assam Taxation Laws (Amendment) Act, 1992. However, the imposition of tax on mustard oil was withdrawn by the Assam Taxation Laws (Amendment) Ordinance, 1993 with retrospective effect from July 30, 1992. For easy reference, the Assam Taxation Laws (Amendment) Ordinance, 1993 is quoted hereunder: GOVERNMENT OF ASSAM ORDERS BY THE GOVERNOR LEGISLATIVE DEPARTMENT: LEGISLATIVE: BRANCH. Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated December 27, 1996 for the period ending March 31, 1993 and assessment order dated December 27, 1996 for the period ending June 30, 1993, there was no law for imposition of tax on the sale proceeds of mustard oil in the State of Assam, inasmuch as, the Assam General Sales Tax Act, 1993 was very much in force. By virtue of sub-section (3) of section 74, read with sections 33 and 36 of the Assam General Sales Tax Act, 1993 and also read with sections 19 and 20 of the Assam Finance (Sales Tax) Act, 1956, respondent Nos. 3 and 4 could have entertained the appeal and the revision respectively against the assessment order dated December 27, 1996. For the period ending March 31, 1993 (annexure 3 to the present writ petition) and the assessment order dated December 27, 1996 for the period ending June 30, 1993, and the assessment orders are not sustainable in the eye of law. Accordingly, the assessment order dated December 27, 1996 for the period ending March 31, 1993 (annexure 3 to the writ petition) and the assessment order dated December 27, 1996 for the period ending June 30, 1993 (annexure 4 to the present writ petition) are hereby set aside and in the result the order dated Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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