ELBE INDUSTRIAL WORKS Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ("1941 act") for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :

(2.) The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ("1956 act"). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.

(3.) The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure "c" defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.