Supreme Court - Daily Orders
Commissioner Of Trade Tax, U.P. vs M/S. Minakshi Udyog on 20 February, 2014
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2081 OF 2006
COMMISSIONER OF TRADE TAX,
UTTAR PRADESH APPELLANT
VERSUS
M/S.MINAKSHI UDYOG RESPONDENT
WITH
CIVIL APPEAL NO.463 OF 2010
O R D E R
1. The Revenue is before us in these appeals, inter alia, questioning the judgment and order passed by the High Court of Allahabad in Trade Tax Revision No.148 of 1996, dated 29.10.2004.
2. In the instant case an ex-parte order under Rule 41(7) of the Uttar Pradesh Trade Tax Rules (for short, "the Rules") was passed by the assessing authority creating the net demand of Rs.72,254/- against the respondent-assessee for Assessment Year 1986-87, dated 16.07.1992. The assessee had filed an application under Section 30 of the U.P. Trade Tax Act, 1984 (for short "the Act") to set aside the said ex-parte order and reopening of the case which came to be rejected by the assessing authority by order dated 26.07.1993.
3. The assessee preferred an appeal under Section 9 of the Act before the Appellate Authority against the aforesaid order. The Appellate Authority had set aside the aforesaid order and directed the assessing authority to reopen the case under Section 30 of the Act by order dated 13.12.1993.
4. In compliance of the same, the assessing authority had re- opened the case and rejected the case of the assessee that the proceedings had become time barred in view of Section 21(5) of the Act and passed an assessment order dated 17.08.1994 imposing the tax liability of Rs.62,000/- . The assessee appealed before the Appellate Authority against the said order. The Appellate Authority dismissed the aforesaid appeal by order dated 10.11.1995.
5. Aggrieved by the aforesaid, the assessee carried the matter before the Trade Tax Tribunal, Agra (for short "the Tribunal") in Second Appeal. The Tribunal had allowed the appeal and remanded the matter to the assessing authority, however, it had upheld the view of assessing authority that the proceedings initiated by the assessing authority on 23.02.1994 in light of the order of appellate authority, dated 13.12.1993, were within the period of limitation and not barred by limitation under Section 21(5) of the Act.
6. The assessee, aggrieved by the aforesaid, has filed a revision petition under Section 11 of the Act before the High Court. The High Court has concluded that Section 21(5) of the Act would be applicable in cases where the appeal is allowed against an order rejecting the application filed under Section 30 of the Act and also that the limitation as prescribed under Section 21(5) would begin from the date of receipt of the appellate order directing the Revenue to set aside the ex-parte order and re-open the case for fresh disposal.
7. Aggrieved by the aforesaid, the Revenue is before us in these appeals.
8. We have heard the learned counsel appearing for the parties to the lis and also perused the documents on record including the order(s) of the Court(s) and authorities below.
9. The submissions canvassed before us by the learned counsel appearing for the Revenue involve the interpretation and applicability of Section 21(4) and 21(5) of the Act in case where an appeal is allowed against the order rejecting an application filed under Section 30 of the Act.
10. The short point articulated by the Revenue that falls for our consideration is in cases as aforesaid for passing an assessment order whether the limitation prescribed under Section 21(4) or Section 21(5) would apply.
11. At the outset, we would require to notice Sections 21, 21(4) and 21(5) of the Act. After omitting what is not relevant, we have extracted Sections 21, 21(4) and 21(5) as under:
"21. Assessment of tax on the turnover not assessed during the year.-
(1) If the Assessing Authority has reason to believe that the whole or any part of the turnover of a dealer, from any assessment year or part thereof, had escaped assessment to tax or has been under-
assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions has 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 re-assess the dealer to tax according to law;
xxx xxx xxx
(4) If an order of assessment is set aside and the case is
remanded for re-assessment by any authority under the provisions of this Act or by a competent Court, the order of re-assessment may be made within one year from the date of receipt by the assessing authority of the copy of the order remanding the case, or by December 31, 1982, whichever is later.
xxx xxx xxx (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- assessment for that year may be made within six months from the date, on which such earlier order was set aside."
12. Section 21 of the Act provides for assessment of tax on the turnover not assessed during the year. Section 21(4) speaks of certain period of limitation for the assessing authority to complete assessments under a given circumstance. Similarly worded is Section 21(5) of the Act.
13. The language employed by the legislature in Section 21(4) of the Act is crystal clear without any ambiguity whatsoever. The said section provides that when an order of assessment is set aside and the case is remanded for reassessment by any authority under the provisions of the Act or by a Competent Court, the assessing authority is expected to complete the reassessment within one year from the date of receipt of a copy of the order remanding the case by the assessing authority or by 31.12.1982, whichever is later in time. It only means and implies that when a superior forum, including the Court, sets aside an order of assessment and if the case is remanded for reassessment by the assessing authority, the same requires to be done by such assessing authority within a period of one year from the date of receipt of a copy of the remand order by the assessing authority. No other interpretation of the said provision is required.
14. Before delving into Section 21(5) of the Act which refers to Section 30 of the Act, it is necessary to refer to provisions of Section
30. Section 30 of the Act provides for the procedure for making an application before the relevant authority for recalling the ex-parte assessment order made by the assessing authority.
15. Sub-section (5) of Section 21 speaks of an order of assessment or reassessment when it is set aside only by a forum under Section 30 of the Act. In such cases a fresh order or reassessment order requires to be made within six months time from the date on which the earlier order of assessment is passed by the assessing authority.
16. It is apparent from the bare reading of the two provisions that both provide for limitation in cases where an order of assessment is set aside and the case is remanded for re-assessment. The seminal difference lies in the authority which would pass the order for re-assessment. While under Section 21(4) the authority could either be one constituted under the provisions of the Act or could be a Court of competent jurisdiction, under Section 21(5) the authority could only be one competent under Section 30 to recall the ex-parte assessment order made by the assessing authority. Thus, Section 21(4) is a general provision which provides for cases where assessment orders are set aside by the authority under the Act or any competent Court and Section 21(5) is specific provision specially dealing with cases where assessment is set aside under Section 30 of the Act.
17. Learned counsel appearing for the Revenue would submit that these provisions have been misunderstood by the High Court and the High Court has erroneously allowed the revision petition of the assessee and quashed the demand raised.
18. Be that as it may. Since the tax effect involved in these appeals is meager, we do not intend to go into the correctness or otherwise of either the order passed by the assessing authority or the conclusions reached by the High Court. Suffice for us only to give proper interpretation to Sections 21(4) and 21(5) of the Act.
19. In the result, the appeals are disposed of, with no order as to costs.
Ordered accordingly.
.......................J. (H.L. DATTU) .......................J. (A.K. SIKRI) NEW DELHI;
FEBRUARY 20, 2014
ITEM NO.105 COURT NO.3 SECTION IIIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 2081 OF 2006
COMMISSIONER OF TRADE TAX, U.P. Appellant (s)
VERSUS
M/S. MINAKSHI UDYOG Respondent(s)
WITH Civil Appeal NO. 463 of 2010
(With office report)
Date: 20/02/2014 These Appeals were called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE H.L. DATTU
HON’BLE MR. JUSTICE A.K. SIKRI
For Appellant(s) Mr.Pawanshree Agarwal, Adv.
Mr.Sudeep Kumar, Adv.
For Mr.Ravi P.Mehrotra, Adv.
Mr. Gunnam Venkateswara Rao,Adv.(NP)
For Respondent(s) Mr. Parmanand Pandey, Adv.(NP)
UPON hearing counsel the Court made the following O R D E R The appeals are disposed of with no order as to costs, in terms of the signed order.
(G.V.Ramana) (Vinod Kulvi)
Court Master Asstt.Registrar
(signed order is placed on the file)