9911796707
TMI Blog2010 (8) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation of the first proviso to sub-section (4A) of section 33 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in law in holding that the fresh assessment orders passed in the opponent dealer's case were time-barred as per the said proviso, when in fact, the case was not at all covered by sub-section (4A) of section 33 for the reason of the opponent dealer's not having filed all the returns by the given date? (2) Whether, on the facts and circumstances of the case and on a true and correct interpretation of the first proviso to sub-section (4A) of section 33 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in law in holding that the applicability of the provisions of the said proviso is not limited only to the assessment cases covered by all the provisions of section 33? In S. T. R. No. 10 of 2006, the Tribunal has referred to the following question for the opinion of this court:- Whether, on the facts and circumstances of the case and on a true and correct interpretation of the first proviso to section 33(4A) of the Bombay Sales Tax Act, 1959, was the Tribunal justified in holding that the said proviso applies only when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing officer with direction to make fresh assessment following principles of natural justice. The part payment of ₹ 25,000 made in appeal was directed to be considered while making fresh assessment. Aggrieved by the aforesaid order, the Revenue preferred second appeals before the Tribunal. The Tribunal analysed the various provisions contained in section 33 and felt inclined to accept the assessee's contention. It was held that the statutory time-limit contained in the first proviso to section 33(4A) is applicable to all the assessment cases remanded for fresh assessment. Taking this view, the Tribunal allowed the second appeals and set aside the fresh assessment orders on the ground of their having been barred by limitation. Not being satisfied with the said order, the Revenue applied for reference with a prayer to refer the questions of law to this court. The Tribunal, accordingly, referred two questions extracted in the opening part of this judgment, for the opinion of this court. The issue:- The only issue involved in these references is : whether the fresh assessment made is barred by limitation since it is passed after more than three years after the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso cannot be applied to both the categories of assessments looking to the placement of proviso in sub-section (4A) of section 33 of the Act. According to him, had it been the intention of the Legislature that it would cover all the assessments, then the proviso would have been placed at the end of section 33. According to him, since the proviso is appended to sub-section (4A), one has to infer that its application is restricted only to provisions contained in sub-section (4A). Per contra, Mr. Surte, learned counsel for the respondent-assessee submits that on a plain reading of the proviso inserted on July 1, 1981, it is clear that where a fresh assessment is required to be made to give effect to any finding or direction contained in any order made under this Act, or in any order of the Tribunal, High Court or the Supreme Court, then such assessment is required to be made within thirty six months from the date of such finding, direction or order. The provision does not refer only to the orders passed under section 33(3) but it covers all orders passed under section 33 as observed by the Tribunal. Mr. Surte, on the above premises, submits that since the proviso applies to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a registered dealer for any year ending on or after the notified day by the prescribed dates, or on or before the date prescribed for filing the last return of that year, no order of assessment under sub-sections (3) and (4) in respect of that year shall be made after the expiry of three years from the end of the said year ; and if for any reason such order is not made within the period aforesaid, then the returns so filed shall be deemed to have been accepted as correct and complete for assessing the tax due from such dealer. Explanation I:- In the case of returns pertaining to the years ending prior to the notified day and filed on or before the notified day on or before any such other date thereafter as the State Government may be notification in the Official Gazette specify in that behalf, the period of three years shall be computed from the notified date. Explanation II:- In the case of returns filed by registered dealer referred to in sub-clause (b) of clause (37) of section 2 and who has not opted for the financial year, the period of three years shall be computed from the end of the financial year in which the year, by reference to which the accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the correctness, or the completeness of the accounts of a dealer, or where no method of accounting has been regularly employed by a dealer, the Commissioner may, after giving the dealer a reasonable opportunity of being heard, assess to the best of his judgment, the amount of tax (if any) due from him. (7) Any assessment made under this section shall be without prejudice to any penalty, or prosecution of an offence, under this Act. (emphasis supplied) Consideration:- Having heard learned counsel for the applicant-Revenue and learned counsel for the respondent-assessee and having gone through the text of section 33 of the Act, merely because the aforesaid proviso has been inserted just below Explanation II of section 33(4A) does not mean that it applies only to section 33(4A). While interpreting any provision entire section and the scheme engrafted therein need to be considered. The placement of the section or sub-section or proviso may be a small factor to be taken into account but that by itself cannot determine the scope of the statutory provision. The apex court in the case of Debaki Debi [1964] 15 STC 153 (SC) while dealing with the identical submissions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
