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TMI Blog2004 (11) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of manufacture and sale of soap. It is registered as a dealer both under the provisions of U.P. Trade Tax Act, 1948 (hereinafter referred to as the U.P. Act) and Central Sales Tax Act, 1956 (hereinafter referred to as the Central Act). For the Assessment Year 1981-82 under the U.P. Act the petitioner disclosed a taxable turnover of ₹ 5,16,600.70 and admitted its tax liability of ₹ 30,963.50. The Trade Tax Officer, Sector 12 Kanpur- respondent No. 2 who is the Assessing Authority of the petitioner did not accept the books of account and the disclosed turnover of the petitioner and made a best judgment assessment determining the tax liability of ₹ 48,965.30 on a total turnover of ₹ 8,16,868. Feeling aggrieved by the assessment order the petitioner preferred an appeal before the Assistant Commissioner (Judicial), Trade Tax Kanpur, who vide order dated 30th April, 1986 had dismissed the appeal. Still feeling aggrieved the petitioner preferred second appeal before the Trade Tax Tribunal, Kanpur. The Tribunal vide order dated 28th April, 1994 had allowed the appeal and after setting aside the assessment order had directed the Assessing Authority to pass a fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessing Authority only within a period of one year from the date of receipt of such an-order and not beyond it and in the present case as the order of remand having been received by the Assessing Authority on 9th June, 1994, the fresh order could have been passed only upto 8th June, 1995 and not beyond that period. According to him what could not have been done directly should not be permitted to be done indirectly by taking recourse to sub-section (2) of Section 21 of the U.P. Act. According to him provisions of sub-section (2) of Section 21 of the U.P. Act has been made subject to other provisions of Section 21 of the U.P. Act and, therefore, in view of the specific period of limitation provided under sub-section (4) of Section 21 of the U.P. Act for passing an order in pursuance of an order of remand, the provisions of sub-section (2) of Section 21 of the U.P. Act are not applicable and could not have been resorted to. He further submitted that the petitioner had filed its regular return and during the pendency of the return no reassessment proceeding can be initiated. In support of the aforesaid submissions, he has relied upon the following decisions: 1. The Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof, the Assessing Authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer or tax according to law: Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment, or full assessment as the case may be. Explanation-1. - Nothing in this sub-section shall be deemed to prevent the Assessing Authority from making an assessment to the best of its judgment. Explanation-II. - For the purposes of this section and of Section 22, Assessing Authority means the officer or authority who passed the eariier assessment order, if any, and includes the officer or authority having jurisdiction for the time being to assess the dealer. Explanation-/!!. - notwithstanding the issuance of notice under this-section, where an order of assessment or re-assessment is in existence from before the issuance of such notice it shall continue to be effective as such, until varied by an order of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of receipt by the Assessing Authority whose order is so quashed, of the copy of the order of such authority or Court by 31 st March, 1993 whichever is later. (5) If an order of assessment or re-assessment for any assessment year is set aside under Section 30, a fresh order of assessment or re-assessmet for that year may be made within six months from the date on which such earlier order was set aside. (5-A) If an ex parte order of assessment or re-assessment or penalty passed against a sick unit is set aside by the State Government by an order under sub-section (2) of Section 38, a fresh order of assessment or re-assessment or penalty, as the case may be, for that year may be made within one year from the date of receipt of such order of State Government by the Assessing Authority concerned. (6) Where the proceedings for assessment or re-assessment for any assessment year remain stayed under the orders of any Court or authority, the period commencing on the date of stay order and ending with the date of receipt by the Assessing Authority concerned of the order vacating the stay, shall be excluded in computing the period of limitation provided in this section. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-assessment may involve a change of opinion. In the second proviso assessment or re-assessment for the Assssment Year 1987-88 can be made .upon 31 st March, 1993. In the fourth proviso assessment or re-assessment for the Assessment Year 1989-90 can be made upto 31 st March, 1995. The period of limitation prescribed in sub-section (2) of Section 2 1 of the U.P. Act will not apply if the case falls under any other sub-sections to Section 21 of the U.P. Act as it starts with except as otherwise provided in this section . Under sub-section (3) of Section 21 of the U.P. Act if the notice under sub-section (1) has been served within the period specified in sub-section (2), the order of assessment or reassessment can be made within six months after the expiration of the period provided under sub-section (2). However, under sub-section (4) if an order of assessment is set aside and the case is remanded for re-assessment by the any authority under the provisions of the U.P. Act or by a competent Court, the order of re-assessment has to be made within one year from the date of receipt by the Assessing Authority of the copy of the remand order or by 31 st December, 1982 whichever is later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any one region, shall not be valid in any other region, unless the permit has been contersigned, by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned. and has held that Section 68 (1) of the aforesaid Act confers authority upon the State Government to make Rules for the purpose of carrying into effect the provisions of Chapter IV of the Act. The Apex Court has further held that the Legislature has by providing in the opening part of sub-section (1) of Section 63 'Except as may be otherwise prescribed' made the provision subject to the Rules framed by the State Government under Section 68 of the Motor Vehicles Act and provisions of Rule 63, therefore, must supersede the direction contained in Section 63 (1) of the Statute. Thus the phrase 'except as provided' is analogous to the phrase 'subject to' which canvasses the same meaning. 12. In the case of C St J dark Ltd. v. inland Revenue Commissioners, (1973) 2 All ER 513 (Ch D) it has been held that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er v. Union of India, A.l.R. 1964 SC 1268, the Apex Court has held that if the opening words Except as provided in this Act in Section 26 of the Railways Act, 1890 are ignored, the bar appears to be comprehensive, for it may take in its sweep any dereliction of duty by the railway administration in respect of matters covered by the provisions of the said chapter. But such an intention to give a blanket licence to the railway administration to contravene the provisions of Chapter V of the Railways Act shall not be attributed to the Legislature unless the section is very clear to that effect. The opening words Except as provided in this Act limit the operation of the bar. It can reasonably be interpreted to mean that the bar of a suit is limited to matters in respect whereof the act has provided a remedy. 18. In the case of M/s. Jetha Bai St Sons, Jew Town, Cochin, etc. v. M/s. Sunderdass Rathenai etc.. A.l.R. 1988 SC 812, the Apex Court has held that the third aspect is that the Legislature has not merely conferred finality to the decision of an Appellate Authority but has further laid down that the decision shall not be liable to be called in question in any Court of law exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in sub-sections (3), (4), (4-A), (5) and (5-A) are specific. Thus where a case falls under any other sub-sections of Section 21 of the U.P. Act the provision of sub-section (2) of Section 21 of the U.P. Act stands excluded. 21. In the case of M/s. Jyoti Traders (supra) the Apex Court has held that the sub-section (2) of Section 21 of the U.P. Act and the proviso added to it leave no one in doubt that as on the date when the proviso came into force the Commissioner of Sales Tax could authorize making of assessment or re-assessment after expiration of eight years from the end of that particular assessment year and it is immaterial if a period for assessment or re-assessment under sub-section (2) of Section 21 of the U.P. Act before the addition of the said proviso had expired. The proviso to sub-section (2) of Section 21 of the U.P. Act does not put any embargo on the Commissioner of Sales Tax not to open the assessment if period, as specified earlier had expired before the proviso came into operation. The proviso is operative from 9th February, 1991 and a bare reading of the proviso shows that the operation of this proviso relates and encompances back to previous eight a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revived. As a consequence of the remand order, the Assessing Authority passes afresh assessment order in original proceedings under Section 7 of the Act. The earlier assessment does not survive and so long as the fresh assessment is not made and the proceedings for the assessment are continuing, no question of any turnover escaping assessment as contemplated by Section 21 of the Act can possibly arise. 25. In view of the principles laid down by this Court which is based upon the decision of the Apex Court in the case of Ghanshyam Das (supra) that when the assessment proceedings pursuant to the order of remand has been pending, the proceedings under Section 21 of the U.P. Act could not have been initiated. 26. Thus, in any view of the matter, the proceedings under Section 21 of the U.P. Act could not have been initiated at all as in the present case it cannot be said that there has been any escapement of turnover as the original assessment was pending pursuant to the order of remand passed by the Tribunal. Moreover, in view of the period of limitation of one year, as prescribed under sub-section (4) of Section 2 1 of the U.F. Act. had expired, recourse to the proviso to sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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