BHARAT TRADERS AGENCY Vs. DEPUTY COMMISSIONER COMMERCIAL TAXES

JUDGEMENT

(1.) This writ application is directed against the order being order No. 5 dated 17th August, 2001 [See Bharat Traders (Agency) v. Deputy Commissioner of Commercial Taxes, page 175 supra], by which the West Bengal Taxation Tribunal (in short, "Tribunal") had rejected the petition filed by the petitioner in which the writ petitioner had challenged an order reopening an assessment under Section 11E of the Bengal Finance (Sales Tax) Act, 1941 (in short, "the Act, 1941") and also a final order of assessment which was confirmed in appeal.

(2.) We have heard Mr. Chakraborty, learned advocate appearing for the writ petitioner and Mrs. Roy, learned advocate appearing for the State-authorities and also examined the impugned order as well as the other materials on record.

(3.) Before we proceed further we may note certain salient facts leading to file of this petition before us. The writ petitioner without submitting the return for turnover tax under the provision of Act, 1941 furnished return and challan showing deposit of tax according to return for the period of four quarters ending on March 31, 1989, namely, for the assessment years 1988-89, 1989-90, 1990-91, 1991-92. By a notice dated November 29, 1995 the writ petitioner was informed that the assessment for the aforesaid period was completed under Section 11E(1) of the Act. Subsequently, the writ petitioner received a notice dated February 19, 1997 from respondent No. 1 asking him to show cause as to why fresh assessment should not be started by reopening the assessment according to the provision of Section 11E(2) of the Act. By an order dated 26th March, 1997, after hearing the writ petitioner, the respondent No. 1 reopened the deemed assessment and initiated a fresh assessment proceedings for the aforesaid period. Subsequently, the proceeding was started for final assessment. A final order was also passed in that proceedings against which an. appeal was taken before the appellate authority which also confirmed the final order of assessment passed by the respondent No. 1. Challenging the aforesaid order of final assessment and the appellate order and also the order reopening the assessment which was passed in the year, 1997, an application for condonation of delay was filed before the Tribunal. From the impugned order it is clear that the Tribunal categorically held the order reopening the assessment passed in the year, 1997 was totally illegal, invalid and without jurisdiction in view of the fact that for non-filing of any return for turnover tax, the provision of Section 11E of the Act could still be applied and therefore, the order reopening the assessment on the aforesaid ground was totally bad, illegal and without jurisdiction. It is not disputed before us that in the event the order reopening the assessment is set aside, subsequent proceedings, namely, the proceedings for final assessment and also the appellate order should automatically come to an end.