Patna High Court
Commissioner Of Commercial Taxes vs Shiva Pujan Prasad Bhagat on 10 August, 1973
Equivalent citations: [1974]33STC466(PAT)
Author: Nand Lall Untwalia
Bench: Nand Lall Untwalia, Lalit Mohan Sharma
JUDGMENT Nand Lall Untwalia, C.J.
1. This is a reference under Section 25(1) of the Bihar Sales Tax Act, 1947 (hereinafter called the 1947 Act), by the Commercial Taxes Tribunal, Bihar, for opinion of this court on the following question of law:
Whether, in the facts and circumstances of the case, the initiation of the proceeding on 2nd April, 1964, for review under Section 24(5) of the Bihar Sales Tax Act, 1947, of the assessment order dated 9th March, 1959, for the period from 1st April, 1958, to 15th February, 1959, was barred by limitation under Section 13(6) of the said Act.
2. The dealer was assessed to tax for the period 1st April, 1958, to 15th February, 1959, by Shri P.N. Sinha, Assistant Superintendent of Commercial Taxes, Purnea, by an order of assessment dated 9th March, 1959. The assessee preferred an appeal but it was dismissed for default by an order dated 8th July, 1961, passed by the Appellate Assistant Commissioner of Commercial Taxes, Bhagalpur. The dealer did not file any revision against the appellate order. Hence that assessment proceeding became final.
3. On 20th September, 1962, there was a surprise inspection of the business place of the dealer when a number of books of account were seized by the officers of the department. As a result of the examination of books of account, it appears, the assessing officer found that the dealer had suppressed a major portion of his turnover in respect of the period 1st April, 1958, to 15th February, 1959, and that the assessment order passed on 9th March, 1959, required a review. Since the review was proposed to be made after one year, under Rule 39(2) of the Bihar Sales Tax Rules, 1949, sanction of the Commissioner was obtained. The assessing officer recorded an order on 2nd April, 1964, in the order sheet of the original assessment proceeding directing the dealer to appear on 7th April, 1964, for review of the original assessment under Section 24(5) of the 1947 Act. The dealer appeared and objected to the review; his objection was overruled and rejecting his prayer for adjournment to another date an ex parte order of assessment was passed on 25th April, 1964.
4. Against the order of assessment passed on review, the dealer preferred an appeal before the Deputy Commissioner of Commercial Taxes, Bhagalpur, and a point was taken that the proceeding for review was barred by limitation. The Deputy Commissioner accepted this contention and held that it was barred under the proviso to Section 13(6) of the 1947 Act. He accordingly set aside the revised assessment order dated 25th April, 1964.
5. The Commissioner of Commercial Taxes filed an application in revision before the Commercial Taxes Tribunal. The stand taken on behalf of the Commissioner was that there was no period of limitation provided under Section 24(5) of the 1947 Act for review of an order of assessment. The Tribunal dismissed the revision application and at the instance of the Commissioner has referred this case for answering the question of law, as stated above.
6. The instant case is directly covered by a Bench decision of this Court in Commissioner of Commercial Taxes v. Sheodutta Prasad Chandeshwar Singh [1970] 25 S.T.C. 114. In Commissioner of Commercial Taxes v. Messrs. Ashoka Marketing Ltd. Tax Cases Nos. 25 and 26 of 1968 decided on 23rd July, 1973; since reported at [1974] 33 S.T.C. 24, a Bench of this Court, of which I was a member, had the occasion to consider whether any period of limitation had been prescribed for exercising the power of review under Section 24(5) of the 1947 Act. On a consideration of several cases and the relevant provisions of the law contained in the 1947 Act, as also on consideration of the decision of this court in Commissioner of Commercial Taxes v. Sheodutta Prasad Chandeshwar Singh [1970] 25 S.T.C. 114, it was held that no period of limitation had been provided for exercising the power of review. In that case, the earlier remand order passed by the appellate authority had been reviewed by the authority and the fresh order passed on review was also a remand order. The final assessment made in pursuance of the appellate order of review was not the subject-matter of consideration before that Bench. Judgment of this court in Commissioner of Commercial Taxes v. Sheodutta Prasad Chandeshwar Singh [1970] 25 S.T.C. 114, was distinguished. Here, there is no point of distinction between the instant case and the case of Sheodulta, Prasad Chandeshwar Singh [1970] 25 S.T.C. 114. That decision is binding on us and unless we take the view that it was not correct, we are bound to follow it.
7. Mr. Lakshman Sharan Sinha, appearing for the Commissioner of Commercial Taxes, endeavoured to persuade us to refer this case to a larger Bench as, in his submission, the Bench decision of this Court in Sheodutta Prasad Chandeshwar Singh's case [1970] 25 S.T.C. 114, was wrong. We did not feel persuaded to accede to this request as, in our opinion, it could not be said that the decision was definitely wrong. The other view canvassed on behalf of the department may also be possible, but the one accepted by the Bench is also possible to be taken. When an order of review is made by an appellate authority or a revisional authority, then the matter stands on a different footing. But if it is made by the assessing officer, then the proviso to Sub-section (6) of Section 13 of the 1947 Act may be attracted. In this connection, I may make a reference to the provision of law contained in Section 18 of the Bihar Sales Tax Act, 1959 (hereinafter called the 1959 Act). There again it would be noticed that the power of review granted by Section 32 of the 1959 Act has not been subjected to any period of limitation. Since a new provision like the one contained in Section 18 was introduced in the 1959 Act, a proviso similar to the one appended to subsection (6) of Section 13 of the 1947 Act has been appended to subsection (5) of Section 16 of the 1959 Act, which is equivalent to Section 13(5) of the 1947 Act. Under the 1959 Act, therefore, if the assessing officer wants to review his previous order, then in a majority of cases, the proceeding will be directly one under Section 18 of that Act. The proceeding under Section 18 has been subjected to a period of limitation. It will, therefore, be quite legitimate to take a view that if the nature of the proceeding is one under Section 18 of the 1959 Act, then merely by calling the proceeding as a proceeding for review, the assessing officer cannot escape the period of limitation provided for the former proceeding. In the 1947 Act, however, it is pertinent to point out that the proviso to Sub-section (6) does not say that it is meant to be a proviso only to Sub-section (5) of Section 13. In such a situation and in the absence of a provision in the 1947 Act corresponding to the one engrafted in Section 18 of the 1959 Act, it is possible to take the view that proviso to Sub-section (6) of Section 13 couched in general terms, as it is, will cover a case of initiation of a proceeding for review when it has the effect of initiating a proceeding for assessment of the tax due within the meaning of the said proviso. The argument put forward on behalf of the department that as a matter of construction the proviso to Sub-section (6) of Section 13 of the 1947 Act must be confined to a proceeding for assessment of a tax duly initiated under Section 13(5) is plausible. But then, the other view also is reasonable and possible to be taken. That being so, we did not feel persuaded to refer this matter to a larger Bench. And, following the Bench decision of this Court in Sheodutta Prasad Chandeshwar Singh [1970] 25 S.T.C. 114, I answer the question referred to this court in the affirmative and hold in agreement with the decision of the Tribunal that, on the facts and in the circumstances of this case, the initiation of the proceeding on 2nd April, 1964, for review under Section 24(5) of the 1947 Act of the assessment order dated 9th March, 1959, for the period between 1st April, 1958, and 15th February, 1959, was barred by limitation under the proviso to Section 13(6) of the said Act. In the circumstances, there will be no order as to costs of this reference.
Lalit Mohan Sharma, J.
I agree.