LAWS(GJH)-1992-2-22

SUPREME TYRESOLES Vs. SALES TAX OFFICER

Decided On February 10, 1992
SUPREME TYRESOLES Appellant
V/S
SALES TAX OFFICER Respondents

JUDGEMENT

(1.) THE petitioner is a registered partnership firm. Its business is to sell automobile tyres and tubes and scooters and to do the job work of retreading old tyres. The petitioner is also an authorised dealer of Karnataka Scooter Limited and Falcon Tyres Limited, respondents Nos. 5 and 6, respectively. Respondent No. 1 is the Sales Tax Officer having jurisdiction to assess the petitioner under the Gujarat Sales Tax Act, 1969, as well as under the Central Sales Tax Act, 1956. The petitioner is a registered dealer under both the Acts. During samvat year 2036, the petitioner had made sales of scooters and tyres aggregating to Rs. 2,77,918, which it had purchased from respondents Nos. 5 and 6 from the Ahmedabad sales offices, after paying sales tax and additional sales tax to them. In respect of the said sales to the petitioner, respondents Nos. 5 and 6 were assessed by the respective Sales Tax Officers. It is the petitioner's case that as the petitioner's sales amount to resales, it was not liable to pay any tax on such resales. In spire of that, respondent No. 1 decided to levy again sales tax and additional tax on the sales and for that reason, required the petitioner to furnish various informations and documents. As the petitioner felt that respondent No. 1 would not be in a position to complete the assessment for that year before the prescribed time of limitation, it requested respondent No. 1, by its letter dated 20th September, 1983 to stay the proceedings. Accepting the request of the petitioner, respondent No. 3, by his order dated 1st November, 1983, stayed the assessment proceedings for samvat year 2036 up to Aso Vad Amas of samvat year 2040, i. e. , 24th October, 1984. But for the stay, the assessment proceedings for samvat year 2036 were required to be completed before Aso Vad Amas of samvat year 2039, i. e. 4th November, 1983. The petitioner produced all the documentary evidence and other materials which were required by respondent No. 1. It also produced certificates from respondents Nos. 5 and 6, certifying that they have paid sales tax and additional sales tax on the sales made by them to the petitioner. Ignoring all these materials, respondent No. 1 passed a draft order of assessment on 30th December, 1983, proposing to levy sales tax to the tune of Rs. 27,513. 88, which sum includes tax on sales of scooters and tyres, which were purchased by it from respondents Nos. 5 and 6. Respondent No. 1 also proposed to levy penalty under section 45 (6) of the Act. The draft order of assessment was served on the petitioner on 13th February, 1984 and it filed its objections on 2nd March, 1984. In view of the objections filed by the petitioner, respondent No. 1 transferred the assessment proceedings for samvat year 2036 to respondent No. 2. With respect to the assessment proceedings for samvat year 2037 (8th November, 1980 to 27th October, 1981), the petitioner requested respondent No. 1, by its letter dated 8th October, 1984 to extend the time-limit for completing the assessment up to Aso Vad Amas of samvat year 2041, i. e. , 12th November, 1985. On 19th October, 1984, respondent No. 3 passed an order not only with respect to the assessment proceedings of samvat year 2037 but also with respect to the assessment proceedings of samvat year 2036. Staying of the assessment proceedings for samvat year 2036 for the second time is challenged by the petitioner.

(2.) TO complete the facts, it may be stated that respondent No. 2 thereafter passed an order of assessment on 15th December, 1984 for samvat year 2036. As the sales made by the respondents Nos. 5 and 6 to the petitioner have been considered as inter-State sales, the petitioner has challenged the said order of assessment also. Though the petitioner had given consent for stay of assessment proceedings for samvat year 2037, the order passed by respondent No. 3 staying those proceedings is also challenged as without jurisdiction and illegal. What is considered by the learned counsel for the petitioner is that as regards assessment proceedings for samvat year 2036, the petitioner had not given any consent for further stay up to Aso Vad Amas of samvat year 2041. We have seen the letter dated 28th September, 1983, from the file produced by the respondents and we find that what the petitioner has stated in the petition in correct. By that letter, the petitioner had requested the sales tax authorities to extend the time-limit up to Aso Vad Amas of samvat year 2040. The learned counsel for the <CT></CT>respondents was not able to point out from the files of the department are consent given by the petitioner for staying the said proceedings again up to Aso Vad Amas of samvat year 2041. The letter dated 8th October, 1984, annexure A-6, was with respect to assessment proceedings for samvat year 2037. He also drew our attention to the letter dated 31st August, 1984, annexure A-5, addressed to the Assistant Commissioner of Sales Tax, wherein it is stated that all the relevant documents have been produced by the petitioner and whereby the Assistant Commissioner of Sales Tax was requested to pass the final order in terms of the said documents and the submissions made by the petitioner. Therefore, the question which would arise for consideration is whether respondent No. 3, the Assistant Commissioner of Sales Tax, could have stayed the proceedings for samvat year 2036 for a further period of one year without issuing any notice to the petitioner or without its consent. The grievance regarding stay of assessment proceedings for samvat year 2037, however, appears to be without any substance as the proceedings for the said year were stayed at the request of the petitioner as is evident from the letter dated 8th October, 1984, written on behalf of the petitioner to the Sales Tax Officer. 11th February, 1992 :

(3.) IN our opinion, the decision given by this Court in that case will clearly apply to the facts of this case also. As stated earlier, the sales made by the petitioner's vendor to the petitioner were treated as local sales and on that basis, the petitioner's vendor was assessed and tax was collected from them. Their assessment has become final. It was, therefore, not open to the department to take a different view as regards those sales at a subsequent stage while assessing the petitioner. On this ground this petition will have to be allowed so far as the order of assessment for samvat year 2036 is concerned. As we are allowing this petition, so far as assessment for samvat year 2036 is concerned, it is not necessary to decide the other question indicated above.