9911796707
TMI Blog2006 (4) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Investigation Branch Trade Tax, Gorakhpur on 26th of September, 1998 wherein five incriminating documents were seized. The Trade lax Officer, Sector-IV, Gorakhpur on the basis of the facts as found in the aforesaid survey, initiated assessment proceedings for the aforesaid four assessment years and treated Krishna Kumar as one of the partners in M/S. Bhagwati Trading Company, Kushi Nagar. The assessment orders were challenged by way of appeals and second appeals before the Tribunal. The Trade Tax Tribunal by the order dated 31st of March, 2000 relevant to the assessment year 1994-95 and 1995-96 set aside the assessment order by the order dated April, 19, 2005 on the short ground that the Assessing Authority, Trade Tux Officer, Sector-IV, Gorakhpur had no territorial jurisdiction over the petitioner, as Kushinagar is a separate District and there is no material on record to show that the assessment files were assigned to the Trade Tax Officer, Sector-IV Gorakhpur in exercise of power conferred by Rule 6(8) of the Trade Tax Rules. It was made clear that other points touching the merits of the dispute were left open. Similar order was passed by the Trade Tax Tribunal on April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this Division Bench in the case of National Chemical Products v. State of U.P. and Ors. 2006. U.P. Tax Cases. 7. During the course of argument it was accepted by the learned Counsel for the petitioner that 22nd of March, 2006 is the next date fixed before the Assessing Authority and yet no assessment order/reassessment order in pursuance of the impugned notice has been passed. 8. To appreciate the controversy it is apt to reproduce the copy of the impugned notice which reads as follows: र्स्वश्री कृष्ण कुमार व श्री जय प्रकाश निवासी-सिधावन, पिरिाईच, गोरखपुर । संख्या : व्यापार स्थल-कसया, कुशाीनगर । आपके वë ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that every dealer who is liable to pay tax under the Act is required to submit return or returns of his turnover at such intervals (monthly returns) to the Assessing Authority and the Assessing Authority, after close of the assessment year and after making such enquiry as he considers necessary, shall determine the correctness and completeness of the returns filed by a dealer and shall assess the tax on the basis thereof, as provided under Section - 7 of the Act. The power to assess the turnover is vested in the Assessing Authority irrespective of the fact whether the dealer has submitted the requisite return within time or the said return is correct or complete. The Assessing Authority is required to frame the assessment order after making such enquiries as he may consider necessary and for the purpose of making enquiry a notice is given under Rule 41(8) of the Rules framed under the Act. The exercise to complete the assessment is to be completed within the prescribed period of limitation as per Section 21(2) of the Act. Such assessments are popularly known as 'regular assessment'. Under Section 21 of the Act like, other fiscal statutes, power has been given to the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of assessment or reassessment 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 or re-assessment made under this section in pursuance of such notice. (2) Except as otherwise provided in this section, no order of assessment or re-assessment under any provision of this Act for any assessment year shall be made after the expiration of two years from the end of such year or March 31, 1998, whichever is later: Provided that if the Commissioner on his own or on the basis of reasons recorded by the assessing authority, is satisfied that it is just and expedient so to do authorizes the assessing authority in that behalf, such assessment or re-assessment may be made after the expiration of the period aforesaid but not after the expiration of six years from the end of such year or March 31, 2002, whichever is later notwithstanding that such assessment or reassessment may involve a change of opinion: Provided further that the assessment or reassessment for the assessment year 1987-988 may be made by March 31, 1993: Provided also that if the eligibility certificate granted under Section 4-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... readings of Sub Sections (1) and (4) of Section 21 it is clear that it deals with the power of the Assessing Authority to initiate and pass reassessment order and to deal with a case after remand order passed by a Competent Court or Authority to the Assessing Authority. 14. Coming to Sub-section (4-A) of Section 21, it is clear that if an order of assessment is quashed on ground of lack of jurisdiction of the Assessing Authority or any other like ground by any Competent Authority or Court, fresh order of assessment may be made by the Assessing Authority having jurisdiction within one year from the date of receipt by the Assessing Authority whose order is so quashed. On a close reading of Sub-section (4-A) two things are clear. One, it talks about passing of fresh order of assessment . This 'expression' clearly talks about passing of fresh assessment order and does not say 'reassessment' as submitted by the petitioner. To put it differently, it does not say that the order passed after assessment, when the earlier assessment order has been set aside or quashed on ground of want of jurisdiction of the Assessing Authority or any other like ground, the Competen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable by inference or by analogy but only by the plain words of a statute applicable to the facts and circumstances of his case. 18. The observations of Lord Russel in the aforementioned case were also referred by the privy council in the Bank of Chettinad v. Income Tax Commissioner AIR 194 P.C. 183. The privy council did not accept the suggestion that in revenue cases the substance of the matter may be regarded as distinguished from the strict legal position. 19. A similar view was taken in Commissioner of Wealth Tax, Gujrat III Ahmedabad v. Ellis Bridge Gymkhana [1998]229ITR1(SC) , in which it was observed the rule of construction of a charging section is that before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section. No one can be taxed by implication. A charging section has to be construed strictly. If a person has not been brought within the ambit of the charging section by clear words, he cannot be taxed at all. 20. In the case of Commissioner of Income Tax, Madras v. Kasturi and Sons Ltd. [1999]237ITR24(SC) the Apex Court has referred to the view expressed by Justice G.P. Singh in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries Corporation, Bombay (1961) 12 STC 122 bom, this Court said: But the Court in interpreting a taxing statute will not be justified in adding words thereto so as to make out some presumed object of the Legislature.... If the legislature has failed to clarify its meaning by the use of appropriate language, the benefit thereof must go to the taxpayer. It is settled law that in case of doubt, that interpretation of a taxing statute which is beneficial to the taxpayer must be adopted. 22. In the case of Hansraj and Sons v. State of Jammu Kashmir and Ors. [2002]SUPP1SCR199 . the Apex Court after referring to its earlier decisions has held that Courts have to interpret provisions of fiscal statute strictly so as to give benefit of doubt to the litigants which is well established and admits of no doubt. 23. Ordinarily, the rule of benevolent construction has been applied while construing the welfare legislations or provisions relating to the relationship between weaker and stronger contracting parties. 24. In the case of Commissioner of Income Tax, Bombay v. Gwalior Rayons Silk Mfg. Co. Ltd. [1992]196ITR149(SC) , the Apex Court has held that it is settled law that the expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise of power under Section 7 of the Act. 27. The argument of the petitioner proceeded on the premises that proceedings under Section 7 of the Act are something different from the assessment proceedings in consequence of an order of remand. He, therefore, submitted that original proceedings is finalised the moment an order under Section 7 of the Act assessing the turnover is passed. The fact that the said order was set aside subsequently being an exparte order under Section 30 of the Act or on the ground of lack of jurisdiction of the Assessing Authority or on any other ground the matter is remanded to the Assessing Authority by higher court or authority, the order, thus, passed consequent of remand order or under Section 30 is an order to determine the escaped turnover of the dealer and can be assessed only by invoking 21(1) of the Act. The said argument does not borne out from the plain language either of Section 30 or of the Sub-sections (3), (4), (4-A) and (5) of Section 21 of the Act. However, this controversy need not detain us any longer in view of a Full Bench Judgment of this Court in the case of Ram Dayal Harbilas v. 1979 UPTC CST 999. The Full Bench in para 23 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings, shall necessarily be a reassessment order, is meritless and is liable to be rejected. Sub-section (2) of Section 21 opens with the words except as otherwise provided in this Section , no order for any assessment year shall be made after expiration of two years, does not provide an overriding effect to Sub-section (4-A) of Section 21. On the other hand this itself provides an exception to Sub-section (4-A). Subject to 'other provisions' means that if there is an ireconceivable conflict between the two provisions, the latter will prevail. Reference can be made in support of above, to the following cases: 1. Punjab Sikkha Regular Motor Service v. Regional Transport Authority [1966]2SCR221 ; 2. Commissioner of Wealth Tax Andhra Pradesh v. Trustees of H.E.H. Nizams Family [1977]108ITR555(SC) ; 3. South India Corporation v. Secretary, Board of Revenue [1964]4SCR280 ; 4. Kerala State Electricity Board v. The Indian Almunium Company Ltd. [1976]1SCR552 ; 5. Chandra Workers Sita Ratan Rao v. Asha Lata [1986]3SCR866 ; 6. Rai Chandra Amulakh Saha and Anr. v. Union of India [1964]5SCR148 and 7. Ram Lal and Anr. v. Jammu Kashmir 1999CriLJ1342 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
