HUKUMSINGH HAZARASINGH Vs. ASSISTANT SALES TAX OFFICER

JUDGEMENT

(1.) THE petitioner has filed this petition under Article 226/227 of the Constitution of India seeking quashment of the orders dated July 27, 1989 (annexures E and F) passed by respondent No. 1 under the Madhya Pradesh General Sales Tax Act, 1958 (for short, "the State Sales Tax Act") and under M. P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (for short, "the Entry Tax Act") respectively ; orders dated June 1, 1990 (annexures G and G-1) passed by respondent No. 3 under Section 39 (1) of the State Sales Tax Act ; and the order dated May 25, 1990 (annexure I) passed by respondent No. 3 under Section 39 (2) of the State Sales Tax Act.

(2.) BRIEFLY stated, the facts of the case are that the petitioner is a works contractor and he takes contracts to construct buildings, roads, etc. It is an admitted fact that the petitioner was not a registered dealer under the State Sales Tax Act during the period from July 1, 1984 to March 31, 1987. The petitioner received a notice bearing No. 991 dated March 12, 1987 in form No. 24 from the Sales Tax Officer, Ratlam Circle 1. By the said notice the petitioner was asked to produce before him his books of accounts for determination of his liability to pay tax under Section 4-A of the State Sales Tax Act. The petitioner submitted his reply to the said notice on June 8, 1987. By order dated July 16, 1987, after scrutiny of books of accounts, his liability to pay the tax under the State Sales Tax Act was determined with effect from July 1, 1984 (annexure C ). The Assistant Sales Tax Officer, Ratlam Circle 2, by a common notice in form XVI beating No. 154 dated January 12, 1989 (annexure D) directed the petitioner to appear before him on January 23, 1989 with his books of accounts for assessment under Section 18 (6) of the State Sales Tax Act and also under the Entry Tax Act for the period from July 1, 1984 to March 31, 1987. The Assistant Sales Tax Officer, Ratlam Circle 2, passed an order of assessment on July 27, 1989 (annexure E) in Assessment Case No. 28/1987 (State) for the period from July 1, 1984 to March 31, 1987 and by the aforesaid order of assessment the petitioner was assessed to sales tax and additional tax of Rs. 29,156. 32. The Assistant Sales Tax Officer has also imposed a penalty of Rs. 10,200 under Section 17 (3) of the State Sales Tax Act and for Rs. 100 under Rule 69-A of the Madhya Pradesh General Sales Tax Rules, 1959 (for short, "the State Sales Tax Rules" ). Thus a total demand of Rs. 39,456 was raised. Likewise by an order of assessment dated July 27, 1989 in Assessment Case No. 62/1987 (entry tax) for the period from July 1, 1984 to March 31, 1987, under Entry Tax Act, the petitioner was assessed to entry tax of Rs. 11,732 and for which a demand notice was issued (annexure F ). Being aggrieved by the said two assessment orders dated July 27, 1989 by the respondent No. 1 under the State Sales Tax Act and also under the Entry Tax Act, the petitioner filed separate revision applications under Section 39 (1) of the State Sales Tax Act and under Section 13 of the Entry Tax Act. In these revisions, besides other grounds, a ground that the proceedings of assessments initiated by the Assistant Sales Tax Officer, Ratlam Circle No. 2 were barred by limitation as provided under Section 18 (6) (a) of the State Sales Tax Act. It was submitted before the revisional authority--Deputy Commissioner of Sales Tax, Ratlam, that according to Section 18 (6) (a) of the State Sales Tax Act read with Section 13 of the Entry Tax Act proceedings for assessment in the case of unregistered dealer should be initiated within a period of 12 months from the date of completion of proceedings Under Sub-section (1) of Section 4-A of the State Sales Tax Act. Since the proceedings under Section 4-A (1) were completed on July 16, 1987, it was mandatory under Rule 52-A of the State Sales Tax Rules to issue a memo and accordingly a memo was issued. The Deputy Commissioner of Sales Tax, Ratlam, passed a common order on June 1, 1990 (annexures G and G-1) and by this order allowed a relief in tax amounting to Rs. 27,891 in the State case and relief of Rs. 2,886. 00 in the entry tax case. The revisional authority also set aside the penalty of Rs. 10,200 which was imposed under Section 17 (3) of the State Sales Tax Act by the assessing authority. The submission of the petitioner is that, however, the revisional authority did not decide the question of jurisdiction of the Assistant Sales Tax Officer to pass the assessment orders beyond the period of limitation provided under Section 18 (6) of the State Sales Tax Act. Thereafter the Deputy Commissioner of Sales Tax, Ratlam, issued a notice in form No. XXVIII bearing No. 840 dated October 23, 1989 under Section 39 (2) of the State Sales Tax Act and by the said notice the Deputy Commissioner proposed to levy a penalty on the petitioner under Section 18 (6) of the State Sales Tax Act on the ground that the petitioner was an unregistered dealer during the period of assessment from July 1, 1984 to March 31, 1987. The Deputy Commissioner passed an order on May 25, 1990 under Section 39 (2) and levied a penalty of Rs. 11,000 under Section 18 (6) of the State Sales Tax Act (annexure I ). In this petition, the petitioner is seeking quashment of orders dated July 27, 1989 (annexures E and F) ; orders dated June 1, 1990 (annexures G and G-1) passed under Section 39 (1) of the State Sales Tax Act and also the order dated May 25, 1990 (annexure I) passed under Section 39 (2) of the State Sales Tax Act on the ground that the proceedings were barred by time under Section 18 (6) (a) of the State Sales Tax Act and also on the ground that under the aforesaid section the proceedings have to be initiated within a period of 12 months from the date of completion of proceedings under Section 4-A and in this case admittedly the order under Section 4-A was passed on July 16, 1987 and thereafter the proceedings under Section 18 (6) (a) were initiated by form XVI dated January 12, 1989 (annexure D) and, therefore, this initiation of proceedings under Section 18 (6) (a) is beyond the period of 12 months and, therefore, initiation of proceedings are barred by limitation being issued after the expiry of period of 12 months.

(3.) IN the return the submission of the learned Government Advocate for the respondents is that the plain reading of Section 18 (6) (a) does not indicate that if the Commissioner fails to initiate proceedings of assessment within 12 months, the proceedings become time-barred by limitation for the simple reason that limitation period has been prescribed separately under Section 18 (8) (i) and (ii) of the State Sales Tax Act and under Section 18 (6) (a) the word "shall" used is not conclusive in every case for holding that the provisions are mandatory. Since the assessment orders in the instant case were passed on July 27, 1989 well within the prescribed period of two calendar years as prescribed under Section 18 (8) (ii), the proceedings are within time. It was also submitted on behalf of the respondents that in the revision applications filed under Section 39 (1) of the State Sales Tax Act by the petitioner, no such objection regarding the limitation was raised and more so the said objection was also not raised at the time of assessment before respondent No. 1. Alternatively it was also submitted that the petitioner could avail the remedy under Section 45 of the State Sales Tax Act as the same was pending before respondent No. 3 on the date of the filing of the petition.