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TMI Blog2007 (5) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee sold timber of Rs. 5,01,137 and its entry has not been made in the books of account and by that, the assessee has avoided payment of tax. The tax liability was assessed at Rs. 50,114 and a penalty of Rs. 1,00,228 was imposed and interest of Rs. 8,841 was charged. In all, the liability was assessed at Rs. 1,59,183. The assessee preferred appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur. The appellate authority by order dated March 17, 1998 partly allowed the assessee's appeal and held that out of sale of Rs. 5,01,137, the assessee has verified and accounted for sale of timber of Rs. 3,31,833. Consequently, the appellate authority reduced the tax, as well as interest and penalty proportionately. The Revenue preferred further appeal against the order dated March 17, 1998 before the Tax Board, Ajmer. During the pendency of this appeal before the Tax Board in the matter of proceedings arising out of provisional tax assessment under section 27 of the Act of 1994, the proceedings for regular assessment for the same year were completed by the assessing authority under section 29 of the Act of 1994 by order dated November 18, 1998. The Tax Board b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing which is recorded by the assessing authority and which becomes final on not challenging the finding of the assessing authority recorded in the provisional assessment order or upheld by the appellate authority and in further appeal and in revision, then that order cannot be reconsidered, modified or set aside by the lower authority, i.e., assessing authority while dealing with the proceedings for regular assessment. According to learned counsel for the Revenue, though the words provisional assessment have been used in sections 27 and 28 of the Act of 1994 but the words final assessment have not been used for the orders which are passed under section 29. Section 2(4) clearly says that the assessment includes provisional assessment, reassessment and best judgment assessment. Therefore, mere use of word provisional before assessment under section 27 cannot make the assessment under sections 27 and 28 an order like the order passed on application for grant of injunction or any other order passed in a proceeding which merges in the final order like in civil suits where there may be interlocutory proceedings for grant of injunction or orders passed during the course of hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue's appeal which was preferred against the order of the Deputy Commissioner (Appeals) dated March 17, 1999. If it is held that the appeal of the Revenue was rightly held to be infructuous, then the Revenue will be remediless and will not be able to challenge the order of the Deputy Commissioner (Appeals) by which the tax liability, penalty and interest were reduced. The assessing authority, during pendency of appeal before the Tax Board, could not have taken a view contrary to the view taken by the Deputy Commissioner (Appeals) being an authority lower to Deputy Commissioner (Appeals) nor could have examined the legality and validity of the order when the matter was pending before the highest court in the Revenue side, i.e. Tax Board. The learned counsel for the assessee submitted that the question raised by the Revenue, about the effect of regular assessment order over the provisional assessment order came up for consideration before this court in the case of Chauhan Enterprises [1994] 93 STC 37 wherein the single Bench of this court held that the appeal arising out of the provisional assessment proceedings cannot become infructuous on passing of regular assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst tax liability determined in the assessment for any order made under section 29. Therefore, if any liability is created under section 27 or any amount is paid by the assessee in consequence of provisional assessment, that liability and payment is provisional and if it is not incorporated in regular assessment under section 19, it cannot be continued. I considered the submissions of learned counsel for the parties and perused the reasons given in various judgments of this court as well relevant provisions of law. The judgment of this court delivered in the case of Chauhan Enterprises [1994] 93 STC 37 (Raj) was considered by the Division Bench of this court in the case of Commercial Taxes Officer, Anti-Evasion v. Rajasthan Taxation Tribunal [2001] 124 STC 298; 25 Tax World 81 and has been overruled specifically; therefore, the judgment delivered in the case of Chauhan Enterprises [1994] 93 STC 37 (Raj) does not lay down the correct legal position. The judgment of Single Bench delivered in the case of Shreechand [1996] 100 STC 53 (Raj) though is based on the provisions as per the Act of 1954, the provisions for provisional assessment under sections 7A and 7B are almost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order has been finally decided by the appellate or revisional authority. The same argument as of learned counsel for the Revenue was considered by Single Bench of this court in the case of Shreechand [1996] 100 STC 53 and by the Division Bench of this court in the case of Commercial Taxes Officer, Anti-Evasion v. Rajasthan Taxation Tribunal [2001] 124 STC 298; 25 Tax World 81 and after considering the submissions as submitted by learned counsel for the Revenue, the Single Bench and the Division Bench held that the appeal becomes infructuous after passing of the final assessment order. Therefore, the argument of learned counsel for the Revenue cannot be accepted being contrary to the law laid down by this court. The learned counsel for the Revenue submitted that the assessing authority itself in its order of regular assessment dated November 18, 1998 clearly mentioned that the action, so far as tax liability of the assessee is concerned for the sale which was under consideration during provisional assessment proceedings, will be taken in accordance with the decision given by the Tax Board. By this, the issue about the liability of the assessee in pursuance of the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxation Tribunal [2001] 124 STC 298; 25 Tax World 81, the order of the Tax Board dated February 8, 2002 dismissing the appeal of the Revenue as infructuous on passing of the final assessment cannot be set aside despite the fact that the assessing authority in final assessment order observed that appropriate action will be taken in accordance with the decision given by the Tax Board in appeal challenging the order of Deputy Commissioner (Appeals) dated March 17, 1998. Since it has been held that as per law, the provisional assessment is subject to regular assessment and the order even if it is passed and upheld by the highest court in provisional assessment proceedings, then by the order of the assessing authority which may have been passed in the proceedings of regular assessment, cannot make the provisional assessment order to become order of regular assessment and to give precedence to the provisional assessment order over regular assessment simply because the regular assessment order itself made the regular assessment order subject to decision on provisional assessment. The contention of learned counsel for the Revenue is that if the order of Tax Board is not set aside, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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