9911796707
TMI Blog2004 (11) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act, 1941 on December 21, 1990 for a period of four quarters ending December 31, 1986 without assessing any tax liability on contractual transfer price under section 6D of the Act, 1941. On November 28, 1991 the assessing authority fixed liability of the petitioner to pay tax under section 6D of the Act, 1941 with effect from January 1, 1986 and reviewing the assessment order dated December 21, 1990 by a subsequent order dated November 30, 1991 and also determined tax at Rs. 1,17,734 under section 6D of the Act, 1941. The order was challenged in revision on the ground that the provision of section 6D did not confer the power on the appropriate authority to fix up liability to pay tax under section 6D of the Act, 1941, otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a dealer to pay tax with effect from the date immediately following the day on which the gross turnover first exceeds taxable quantum on all sales other than those mentioned in section 6D. The provision of section 4(2) thus, excludes the sales referred to under section 6D of the Act, 1941 only because the contractual transfer price is not considered as a sale under this Act but is considered as a deemed sale. The liability to pay tax, therefore, has to be fixed under section 6D independent of the provision of section 4(2) of the Act, 1941 in such a case. Hence, the order passed by the learned Commercial Tax Officer and the revisional authorities are illegal and liable to be set aside. In support of his contention, the learned lawyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay tax under section 6D of the Act, 1941. In the instant application, the assessment in question, relates to the period of four quarters ending December 31, 1986. The sub-section (1a) was inserted in the section 6D with effect from February 1, 1993 which states as follows: The Commissioner, after making such enquiry as he may think necessary and after giving the dealer an opportunity of being heard, shall fix the date on and from which such dealer shall become liable to pay tax under clause (b) of sub-section (1) . Therefore, the observation of the learned Additional Commissioner made in his order dated July 17, 2002 that with the effect from February 1, 1993 the Commercial Tax Officer may fix liability independent of an assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners of Inland Revenue [1926] AC 37, that there are three stages in the imposition of a tax. There is the declaration of liability, that is the part of the statute which determines what persons in respect of what properties are liable. Next, there is the assessment. Assessment particularises the exact sum which a person is liable to pay. Lastly comes the methods of recovery, if the person taxed does not voluntarily pay the sum assessed. The liability to pay sales tax does not depend upon an assessment, that ex-hypothesi has already been fixed by the charging section. The subsequent provision as to assessment provides the machinery by which the liability may be quantified and when quantified to be enforced for the purpose of recovery: se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability which can be made only in a proceeding for assessment as envisaged under section 11(2) of the Act. Therefore, an order determining the liability of a dealer to pay tax from a certain date under section 4(2) independently of, and prior to, the initiation of any proceeding under section 11(2) was without jurisdiction and illegal. In other cases, Bholanath Sreemany v. Additional Commissioner of Commercial Taxes [1978] 42 STC 248 and Debendra Ch. Das v. Commercial Tax Officer, Coochbehar [1978] 42 STC 458, the Calcutta High Court has taken the same views. Hence, we find from all these decided cases that liability to pay tax can only be fixed after initiating a proceeding under section 11 of the Act, 1941. In the instant case, the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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