MOHAMMAD NAZIRUL HAQ Vs. DEPUTY TRANSPORT COMMISSIONER

JUDGEMENT

(1.) THE petitioners, stage carriage owners, submitted their monthly returns in the year 1967-68. Notices were issued under S. 8(1) under the provisions of U. P. Motor Gari Yatri Kar Adhiniyam, 1962, after more than three years on the ground that the returns filed by the petitioners were inaccurate and incomplete. An objection was filed which was rejected and an order under S. 8(2) was passed directing the petitioners to deposit the amount of tax showed in the order and also the penalty imposed against them. The petitioners preferred appeals which were allowed by the Dy. Transport Commissioner and he remanded the case with a direction to the assessing authority to decide the cases afresh after giving notice to the petitioner regarding the amount of tax and penalty assessed against them. Shanti Bhushan appearing for the petitioners has not challenged the appellate order but has confined his arguments on the validity of notices on the grounds that they were without jurisdiction. It was urged that the petitioners having filed returns and no action having been taken within a reasonable time the tax for those months escaped assessment and the case would be covered under S. 9. The returns having been filed but the tax having not been paid in accordance with the provisions of S. 7 of the Act, the tax for those months escaped assessment and the only recourse open to the authorities was to take action under S. 9 of the Act. He placed great reliance on the phrase "if for any reason" which occurs in the opening part of S. 9 and has urged that it is indicative of the fact that the Legislature intended that the word 'escaped assessment' used in S. 9 should be interpreted in the widest possible manner so as to include within its fold even those cases where although the returns were filed but the tax was not deposited.

(2.) 'Escaped assessment' is well known phrase in the taxing statute. There is no ambiguity or doubt about its meaning. It has been held by the Supreme Court under the provisions of the IT Act that so long as regular assessment is pending the tax does not escape assessment. There is no provisions in the Act or Rules which lays down any period during which an assessment should be completed. It has been held in the case of Ghanshyam Dass vs. Regional Asst. CST AIR (1964) SC 766, that the proceedings for assessment start either by issue of notice or by filing of return and continues so long as the assessment is not made. Admittedly the returns were filed by the petitioners but the assessment proceedings had not been finalised and therefore the assessment proceedings which were initiated by filing of return had not come to an end. In the circumstances it cannot be said that the tax of the month for which the returns were filed escaped assessment. Shanti Bhushan vehemently urged that in interpreting the words 'escaped assessment' we should not be guided by the decisions given under the provisions of the IT Act or ST Act. It is true that there is no direct authority on S. 9 of U. P. Motor Gari Yatri Kar Adhiniyam, 1962, but it is a taxing statute and provisions of S. 9 are in pari materia with analogous provisions contained in different ST Acts of different provinces. It was urge in the case of Ghanshyam Dass (supra) that the decisions given on the word "escaped assessment" under the provisions of IT Act and Business Profit Tax Act can be of no assistance while interpreting the phrase "escaped assessment" as used in the C. P. and Bearar ST Act. It was observed by the Supreme Court :

(3.) FOR the reasons stated above the petition fails and is dismissed with costs.