State Taxation Tribunal - Rajasthan
Subh Laxmi Agencies vs Assistant Commissioner, Commercial ... on 27 February, 1996
Equivalent citations: [2003]133STC555(TRIBUNAL)
JUDGMENT
Milap Chandra Jain (Chairman)
1. This revision petition has been filed under Section 86(1), Rajasthan Sales Tax Act, 1994 (in short, the "old Act") (sic) read with Section 7, Rajasthan Taxation Tribunal Act, 1995 against the order of the Rajasthan Sales Tax Tribunal, Ajmer (now Rajasthan Tax Board) (in short, "Tax Board") dated August 22, 1995 by which it has dismissed the second appeal and confirmed the order of the Deputy Commissioner (Appeals), maintaining the reassessment order passed under Section 12 of the old Act in respect of the assessment year 1986-87.
2. The facts of the case giving rise to this revision petition may be summarised thus. The petitioner sells medicines, drugs, pharmaceutical products and sanitary napkins. Regular assessment order relating to the assessment year 1986-87 was passed under Section 10(3) of the old Act on June 3, 1988, taxing sanitary napkins at the residuary rate of 8 per cent. Notice under Section 17 of the Act was issued in respect of the said assessment year for revising the rate from 8 per cent to 10 per cent in respect of sanitary napkins on the basis of the decision given in Bhilai Traders v. Commissioner of Sales Tax (1985) 12 STL 244 (M.P. Tribunal), holding that sanitary napkins is a toiletry article. The assessee filed reply to the notice but no order was passed. Thereafter, the assessing authority issued notice under Section 12 of the old Act for reopening the case. Assessee filed reply also taking objection of limitation under Section 12(2) of the old Act also. The assessing authority and the Deputy Commissioner (Appeals) rejected the objection regarding limitation. The Tax Board did not deal with this objection.
3. It has been contended by the learned counsel for the assessee-petitioner that the provisions of Section 12 deal with reassessment of tax incorrectly assessed earlier and Section 17 deals with the rectification of mistake in any order. He further contended that Section 12(2) of the old Act provided period of limitation of five years from the end of the relevant assessment year for the issuance of the notice for reopening of an assessment order and Section 17 provided that an application for rectification was to be made within a period of 120 days from the receipt of the order to be rectified. He also made submissions on merits along with two connected revisions.
4. In reply, it was contended by the learned counsel for the respondents that it was apparent from the order of the Tax Board that the objection of limitation was not pressed before it, notice issued earlier saved the limitation and the authorities have not committed any error in passing/confirming the reassessment order.
5. This revision can be disposed of on the point of limitation also. Admittedly, notice under Section 12 of the old Act for the accounting period 1985-86 was issued on June 16, 1992. Its relevant assessment year was 1986-87. Section 12(2) of the old Act run as under :-
"(2) No notice under Sub-section (1) shall be issued in respect of any business, registration fee or exemption fee for any year after the expiry of eight years from the end of the relevant assessment year:"
As already observed, notice under Section 12 was issued on June 16, 1992 in respect of the assessment year 1986-87. The period of limitation for issuing notice under Section 12(1) of the Act was reduced from eight years to five years with effect from 1st April, 1991 by the Rajasthan Sales Tax (Amendment) Act No. 8 of 1991. It is clear from it that notice under Section 12(1) could be issued for reopening of the assessment order relating to the assessment year 1986-87 up to March 31, 1992. Issuance of notice within the period of limitation was a condition precedent for exercise of jurisdiction under Section 12 of the old Act. The assessing authority did not acquire jurisdiction to reassess the petitioner under Section 12 of the Act as it failed to issue notice within limitation. It has been observed in Arbind & Company v. State of Rajasthan [1979] 43 STC 430 (Raj) as follows :
"Action under Section 12(1) can, however, be taken only subject to the condition of limitation prescribed in Sub-section (2) of that section, which prohibits the assessing authority from issuing a notice under Section 12(1) in respect of any business for any year after the expiry of eight years from the end of the relevant assessment year. It cannot be said that notice under Section 12(1) in respect of the escaped turnover of the entire business of the dealer can be issued at any time or within eight years from the date of knowledge of such escapement of the turnover of the dealer."
6. Notice issued under Section 17 of the old Act did not go to save limitation. There is a lot of difference in the notice issued under Section 17 and notice issued under Section 12 of the old Act. Notice under Section 17(3) was to be issued in form S.T. 33 as required under Rule 67(c) of the Rajasthan Sales Tax Rules, 1955 and the notice under Section 12 was to be issued in form 12-A, as required in the Rule 55-A of the said Rules. It is clear from their forms, S.T. 12-A and S.T. 33, that they were totally different notices. Service of notice in form S.T. 33 was riot a compliance of Section 12(2) of the old Act. It was not the case of wrong or incorrect mention of a provision of law. Thus, there is no force in the contention of the learned counsel for the respondents that earlier notice issued under Section 17 of the old Act saved the limitation provided under Section 12(2) of the old Act.
7. It is clear from the aforesaid discussion that no notice under Section 12 of the old Act was issued to the assessee in respect of the assessment year 1986-87 prior to March 21, 1992. It was issued on June 16, 1992, obviously beyond limitation of five years. On this ground alone, the revision petition relating to the assessment year 1986-87 deserves to be allowed.
8. Admittedly, notice under Section 12(1) of the old Act was issued on June 16, 1992 long after the provisions of Section 12(2) of the old Act stood amended by the said Amendment Act with effect from April 1, 1991. The period of limitation prevailing on the date of the issuance of the notice was applicable and not the limitation which existed on the last day of the assessment year.
9. Accordingly, the revision petition is allowed. The reassessment order dated June 2, 1993, appellate order dated September 24, 1993 and the order of the Tax Board, Ajmer, dated August 22, 1995 are set aside. No order as to costs.