STATE OF GUJARAT Vs. LAXMAN ANAND AND COMPANY

JUDGEMENT

(1.) The Sales Tax Tribunal has referred the following question under s. 69 of the Gujarat Sales Tax Act 1969 for our decision:

(2.) For appreciating the aforesaid question it would be necessary to refer to the brief facts of the matter as under: In the second appeals filed by the opponent-dealer it was contended that the action of the Sales Tax Officer in initiating reassessment proceedings in respect of the period from May 1970 to October 30 1970 (Aso Vad 30 of Samvat Year 2026) was without legal authority under s. 44 of the Gujarat Sales Tax Act 1969 (hereinafter referred to as the Sales Tax Act). The reassessment proceedings were required to be divided into two parts because the Bombay Sales Tax Act 1959 was repealed and the Gujarat Sales Tax Act 1969 came into force with effect from May 6 1970 The Tribunal was arrived at the conclusion that with regard to the reassessment proceedings for the first part that is upto 5th May 1970 under s. 35 of the Bombay Sales Tax Act 1959 the Sales Tax Officer was having wide power to initiate reassessment proceedings because it permitted reopening of assessment already made in cases (i) where the turnover has escaped assessment (ii) where the turnover has been underassessed (iii) where the turnover has been assessed at a lower rate or (iv) where any deduction has been wrongly made. The Tribunal has further held that the scope under s. 44 of the Gujarat Sales Tax Act 1969 for reopening the assessment was limited one. The reassessment proceedings were started because after the assessment orders have been passed it was found that the sales made by the opponent-dealer in favour of four parties were erroneously deducted. In the returns filed by the opponent for the relevant period it was stated that four parties namely (i) M/s. Shah Trading Company (ii) M/s. Ranchhod Liladhar (iii) M/s. Saurashtra Traders and (iv) M/s. Swastik Oil Mills were purchasing dealers holding licence and they had issued certificates in Form No. 17. The opponent-company had accepted the said certificates in Form No. 17 and filed its returns on that basis. On the basis of the said certificates in Form No. 17 the opponent were assessed by not including the turnovers with the aforesaid four parties. However subsequently it was found that the aforesaid four parties in fact did not hold licences under the Gujarat Sales Tax Act. Therefore reassessment proceedings were initiated. The reassessment orders were confirmed in appeal by the Assistant Commissioner of Sales Tax (Appeals). The orders of the appellate authority with regard to the period from May 6 1970 to October 30 1970 are set aside by the Tribunal on the ground that where a turnover has already engaged an attention of the Assessing Officer and resulted in an order of assessment it cannot be made the subject matter for assessment under s. 44 of the Gujarat Sales Tax Act 1969 merely for the reason that it was not subjected to tax because certain deductions were wrongly allowed. For arriving at this conclusion the Tribunal has relied upon its earlier decision in the case of M/s. Chudgar Ranchhodlal Jethalal vs. The State of Gujarat in Second Appeals Nos. 54 and 55 of 1979 decided on February 27 1981 For this purpose the Tribunal has compared the provisions of s. 35 of the Bombay Sales Tax Act 1959 and the provisions of s. 44 of the Gujarat Sales Tax Act 1969 The Tribunal has arrived at the conclusion that under s. 35 of the Bombay Sales Tax Act 1959 it was open to the Sales Tax Officer to initiate reassessment proceedings in cases (i) where the turnover has escaped assessment (ii) where the turnover has been under-assessed (iii) where the turnover has been assessed at a lower rate or (iv) where any deductions have been wrongly made. On the other hand under s. 44 of the Gujarat Sales Tax Act 1969 the Sales Tax Officer would have jurisdiction only in the case where the turnover has not been assessed in an order of assessment made under s. 41 Therefore under s. 44 of the Gujarat Sales Tax Act the jurisdiction of the Sales Tax Officer is limited to the case where the turnover was not the subject matter for assessment.

(3.) At the time of hearing of the matter learned Assistant Government Pleader Mr. K.M. Mehta appearing on behalf of the Slate of Gujarat submitted that the decision rendered by the Tribunal in the case of M/s. Chudgar Ranchhodlal Jethalal (supra) has been reversed by this Court in Sales Tax Reference No. 13 of 1983 decided on April 3/4 1991 Therefore he submitted that the question under refernece be answered accordingly.