Rajasthan High Court - Jaipur
A C T O Jaipur vs Larsen & Tubro Ltd on 18 September, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR *** O R D E R. *** S.B. SALES TAX REVISION PETITION NO.120/2005 Assistant Commissioner, Special Circle, Rajasthan, Jaipur Vs. M/s. Larsen & Turbo Limited DATE OF ORDER : 18/09/2013 HON'BLE MR.JUSTICE J. K. RANKA *** Mr. RB Mathur, for the petitioner Mr. Vivek Singhal, for the respondent.
1. Instant revision petition is directed against the order passed by the Rajasthan Tax Board (for short, 'Tax Board') dt.28/10/2004 by which the Tax Board allowed the appeal of the respondent-assessee by holding that since no proper form was issued for rectification of the mistake apparent on the face of record, as such, the petitioner-assessing officer was not liable to charge interest.
2. Mr. RB Mathur, counsel for the petitioner-assessing officer submitted that the rectificatory order came to be passed on 24/09/2002 and prior to that a notice under Section 37 of the Rajasthan Sales Tax Act, 1994 (for short, RST Act, 1994') was issued. It is submitted that the judgment of the Hon'ble Apex Court in the case of Indian Carbon Limited (1997) 106 STC 460 was holding the field and in the light of the same, the interest could not have been levied but an amendment came to be made in the Finance Act, 2000 under the Central Sales Act (for short, 'CST Act') by which retrospective levy of interest came to be imposed. It is submitted that this amendment was upheld and was in force at the time of the issuance of rectificatory order. It is further submitted by counsel for the petitioner that neither before the petitioner-assessing officer nor before the Deputy Commissioner (Appeals) this objection was raised as to the form being defective and all throughout before the two authorities no objection was taken and only alternative plea was taken before the Tax Board about the challenge of form ST-12 vis-a-vis form ST-33. He submitted that there was no occasion for the Tax Board to decide on the alternative issue without notice when even the issue was not addressed in a proper manner before to the Tax Board. He submitted that the petitioner was satisfied on the levy of interest and was initially charged but the Tax Board on technicalities in the light of the order of the erstwhile Rajasthan Taxation Tribunal in the case of Rajdhani Bartan Bhandar Vs. ACTO, reported in 110 STC 358 came to the conclusion that issuance of form should have been proper and merely because form was differently issued, the Tax Board quashed the order without deciding the issue on merits. He further submitted that even otherwise, the claim of the Tax Board appears to be unjustified in as much as he drew attention of this Court to Rule 70 which specifically says that a notice for rectification of a mistake under Section 37 shall be in form No.ST-12 and in the light of the same, he submitted that the Tax Board has erroneously come to this conclusion without even taking into consideration Rule 70 of the RST Rules, 1995 which states that for rectification of a mistake under Section 37 notice is to be issued in form ST-12 which was correctly issued by the Assessing Officer and, therefore, he urged that the order of the Tax Board needs to be reversed only on this issue.
3. Mr. Vivek Singhal, ld. counsel for the respondent, on the contrary, submitted that this was a legal issue and legal issue can be raised at any stage and, therefore, the Tax Board was justified in deciding the controversy when it was specified about discrepancy of the form issued by the assessing officer. He also relied upon judgment of Rajdhani Bartan Bhadar (supra). He further submitted that if the claim of the petitioner-assessing officer is to be allowed, then the matter needs to be remanded/restored to the Tax Board as the matter has not been decided on merits by the Tax Board and he submitted that even on merits, he has a goods case for deletion of the said interest.
4. I have considered the arguments advanced by learned counsel for the parties and perused the impugned order.
5. Prima-facie, it appears that the Tax Board has merely gone on the basis of the decision rendered by the Rajasthan Taxation Tribunal in the case of Rajdhani Bartan Bhandar (supra) and has not considered the issue which ought to have been discussed and deliberated by the Tax Board in a proper perspective. Rule 70 of the Rajasthan Sales Tax Rules, 1995 provides as under:-
70. Notice for rectification of a mistake.-
The notice required to be given for rectification of a mistake under section 37, shall be in form ST 12.
6. From the perusal of the said rule 70, it is clear that for rectification of a mistake under Section 37, notice is required to be given in form ST 12 which apparently appears to have been issued by the assessing officer.
7. Form ST-12 is also being reproduced here as under:-
FORM S.T.12 (See rule 48) Form of Summons under the Rajasthan Sales Tax Act, 1994 To Whereas your personal attendance is required to adduce evidence/and/or the following accounts and documents (here describe the documents in sufficient detail to permit of their identification with reasonable certainty) are required with reference to an assessment, escaped assessment, rectification of a mistake or an enquiry under the Rajasthan Sales Tax Act, 1994_________(here enter briefly the subject matter) now pending before me, you are hereby summoned to appear in person to produce, or cause to be produced. ........before me on the .... day of........19......at .... O.clock at (place)..... (and not to depart hence until permitted by me) Given under my hand and seal this........day of......19..... Signature Official designation Seal
8. From perusal of said Form ST-12, as reproduced herein above, it goes to show that it also speaks of rectification and the form to be used is Form No. ST-12 even for rectification of a mistake.
9. Accordingly, in my view, the Tax Board should have kept in mind rule 70 and Form ST-12 while deciding the controversy and should not have merely gone on the basis of the order in the case of Rajdhani Bartan Bhandar (supra).
10. Accordingly, in the light of the said fact and since the Tax Board is a final fact finding authority, without going into merits further, as it may affect the matter, this Court is of the view that the matter should be decided afresh (de-novo) by the Tax Board in accordance with law keeping in view Rule 70 of the Rajasthan Sales Tax Rules, 1995.
11. Consequently, the revision petition is allowed. The order impugned dt.28/10/2004 passed by the Tax Board, Ajmer is quashed & set aside and the matter is remanded/restored back to the Tax Board with the direction to decide the issue afresh (de-novo) after affording opportunity of being heard to both the sides. Since it is an old matter, therefore, the Tax Board is expected to decide the issue within three months.
[J. K. RANKA], J.
Raghu/p.5/120-STR-2005-Final-em.doc Certificate:All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed.
/Raghu, PA