MISRILAL PARASMALL Vs. STO DEVIKULAM

JUDGEMENT

(1.) This writ petition is to quash the orders Exs. P-3 and P-4 and to restrain the 1st respondent by a writ of prohibition from taking steps for the recovery of the tax. The petitioner is a non resident dealer having its principal place of business at Bangalore. It is not a registered dealer in the Kerala State. For the year 1957-58, a first notice dated 3-3-1960 was issued to the petitioner under the provisions of the General sales tax Act, 1125. This was followed by a notice dated 3-6-1960 calling upon the petitioner to show cause why it should not be prosecuted for non registration. The petitioner would appear to have replied that the sales effected by it were only interstate sales exempt from tax under the General Sales Tax Act, 1125. Best of judgment assessment was made on the petitioner by an order, a copy of which has been produced as Ext. P1 dated 22-2-1961. The petitioner filed an appeal against the said order and the Appellate Assistant Commissioner of Agricultural Income Tax and Sales Tax, by order (Ext. P2) dated 31-8-1961 set aside the assessment and remanded the case to the Sales Tax Officer for fresh disposal. After remand the Sales Tax Officer again assessed the petitioner by an order dated 16-1-1963, a copy of which has been produced as Ext. P3. An appeal against the said order was dismissed by the order filed as Ext. P4.

(2.) In support of the prayer to quash Exs. P3 and P4, it was urged that as the notices in respect of the year 1957-58 were issued to the petitioner on 3-3-1960, and 3-6-1960, the proceedings which ultimately resulted in the assessment of the petitioner amounted to a case of "escaped assessment" and were barred by reason of the provisions of R.33 of the General Sales Tax Rules. R.33(1) of the General Sales Tax Rules runs as follows:-

(3.) The petitioner's counsel contended that in so far as the order Ext. P-3 was beyond the time limit specified in the above rule, the proceedings are illegal and liable to be quashed. In view of the decision of the Supreme Court reported in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur (14 STC 976), there was no controversy before me that the proceedings taken to assess the petitioner by Ext. P1 and the subsequent orders related to "escaped assessment" within the meaning of R.33. But on behalf of the Department, it was contended by the learned Government Pleader that R.33 has application only to a case of an original assessment or an assessment made suo motu for the first time by the Sales Tax Officer and has no application to an assessment done by the Officer in pursuance of, and in obedience to, an order of remand directed by the Appellate or Revisional Authority. In support of this position, reliance was placed on S.14, 15, 15A and 15B of the Act and R.32(2) and 32A of the Rules; and it was claimed that the rule of harmonious construction required that R.33 should be understood in the sense contended for by the Government Pleader, so as to ensure obedience to, and compliance with the orders of the Appellate and Revisional authorities. It appears to me that it is no longer open to the learned Government Pleader to construe R.33 as "contended by him, in view of the two decisions of the Supreme Court reported in The State of Orissa v. Debaki Debi and others ( AIR 1964 SC 1413 ) and Jaipuria Brothers Limited v. The State of Utter Pradesh and Others (16 STC 494). The Supreme Court has ruled that there can be no assessment or reassessment by the Sales Tax Officer either suo motu or in pursuance of an order of remand by the Appellate Authority beyond the period of limitation indicated by the provisions of the statute. In the cases before the Supreme Court, the period was indicated by section of the Act itself. It seems to me to make no difference, that in the present case, the limitation is provided by a statutory rule. Following the principle of the above decisions of the Supreme Court, it must be held that the proceedings evidenced by Exts. P3 and P4 are beyond the period indicated by R.33 of the General Sales Tax Rules. If so, there was no argument that the petitioner was not entitled to the relief of quashing these orders.