KHANNA SCOOTERS Vs. ASSISTANT SALES TAX OFFICER

JUDGEMENT

(1.) THE petitioner is a registered dealer under the Madhya Pradesh General Sales Tax Act (hereinafter referred to as "the Act" ). The period of assessment relevant for the writ petition is from 1st January, 1975 to 31st December, 1975. An order of assessment was passed by Shri B. M. Thakur, Assistant Sales Tax Officer, purporting to be dated 30th September, 1980, against which a revision was preferred by the petitioner before the Divisional Deputy Commissioner of Sales Tax, Bhopal Division, Bhopal, respondent No. 2. The said revision was allowed by respondent No. 2 by order dated 21st December, 1981, a copy whereof has been filed as annexure-E to the writ petition. By this order, the order of assessment dated 30th September, 1980 was set aside and the Assistant Sales Tax Officer was directed to pass a fresh order.

(2.) A question was raised on behalf of the petitioner that the assessment had become barred by time, inasmuch as no order of assessment had been passed within the prescribed period of limitation which was five years at that time and as such no further proceedings could be taken in the matter. This plea was repelled by respondent No. 1. He took the view that since the order of assessment in the instant case had been passed on 30th September, 1980 which fell within the prescribed period of five years, the proceedings could not be held to be barred by time. It is by this finding of respondent No. 2 that the petitioner feels aggrieved and has filed the present writ petition with a prayer to quash this part of the order of respondent No. 2.

(3.) IT has been pointed out by the learned counsel for the petitioner that while the assessment proceedings were pending before Shri B. M. Thakur, an application was made before the respondent No. 2 for transfer of the case to some other officer, which was allowed on 16th May, 1981 and the case was transferred to the file of Shri P. S. Shukla, Assistant Sales Tax Officer, Circle-Ill, Bhopal. However, when notices were sought to be issued by Shri P. S. Shukla, on the basis of the order of transfer passed by respondent No. 2, it transpired that an order of assessment had been passed by Shri Thakur on 30th September, 1980 and consequently further proceedings were dropped in the matter. It has been urged by the learned counsel for the petitioner that even though an order of assessment was passed by Shri Thakur on 30th September, 1980, the said order had not been passed in form No. XVIII as prescribed by rule 36 of the M. P. General Sales Tax Rules, 1959 (hereinafter, referred to as "the Rules") and consequently the order dated 30th September, 1980 was indeed no order in the eyes of law. It has also been urged by the learned counsel for the petitioner that even though the order of assessment purported to be dated 30th September, 1980 no mention of the said order is to be found in the order-sheet maintained by Shri Thakur, the Assistant Sales Tax Officer, who passed the said order. So far as the factual submissions made by the learned counsel for the petitioner are concerned, namely, in what circumstances the order-sheet dated 30th September, 1980 did not make any mention, of the order of assessment having been passed on that date and in what circumstance the order of assessment was not being passed in form No. XVIII, we may point out that these submissions do not appear to have been made before respondent No. 2 in the revision filed by the petitioner. As is apparent from the order dated 21st December, 1981 passed by respondent No. 2, the said order is silent about these submissions. In Tika Ram and Sons Ltd. v. Its Workman (Bishamber Dayal) AIR 1960 SC 198, a point arose whether the question of jurisdiction had or had not been urged before the Labour Appellate Tribunal. It was pointed out by the Supreme Court that the judgment of the Labour Appellate Tribunal showed that only one point was raised by the appellant to justify its contention that the appellant raised a substantial question of law and this question related to the point of limitation and no other. It was held that prima, facie, it would be legitimate to infer that the question of jurisdiction had not been urged before the Appellate Tribunal; if it had been so raised, the Appellate Tribunal would have dealt with it. In the instant case there is no averment in the writ petition that even though these questions were raised before respondent No. 2 in the revision, it did not consider them. We are in this view of the matter not inclined to go into these questions of fact. The only question which, therefore, survives and can be gone into in the present writ petition is the question of law, namely, the effect of the order of assessment dated 30th September, 1980 not being in the prescribed form No. XVIII. In other words the question for our consideration is whether even though factually an order of assessment had been passed on 30th September, 1980, i. e. , within the period of limitation prescribed in this behalf, the said order can be treated to be a nullity on the ground that it had not been passed in form No. XVIII prescribed by rule 36 of the Rules.