ARUNA ESTATES PVT. LTD. (RENAMED AS PARK HOTEL PVT. LTD.) AND ANR. AND Vs. DEPUTY COMMISSIONER, COMMERCIAL TAXES AND ORS.

JUDGEMENT

(1.) THESE two batches of application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 which are in the nature of writ applications under Article 226 of the Constitution of India, were heard separately, but are being disposed of by this common judgment, because the question raised for decision in all these applications is identical, namely :

(2.) IN RN -51, 52 and 53 of 1999 the question has arisen in the context of notices issued by respondent No. 1 asking applicants to explain why the deemed assessments for the periods of four quarters each ending March 31, 1990, March 31, 1991 and March 31, 1992 respectively should not be re -opened in terms of Section 11E(2) of 1941 Act in view of the fact that expenditure tax collected by the applicants was not included in taxable turnover for the purpose of levy of sales tax. By order dated March 18, 1999 respondent No. 1 was directed to finally dispose of the proceedings by passing a reasoned order under Section 11E(2) of 1941 Act, according to law, within eight weeks. Applicants were given liberty to file supplementary affidavit, if it felt aggrieved by such orders. In terms of the order dated March 18, 1999, respondent No. 1 passed a combined order dated April 9, 1999 for the aforesaid three periods of four quarters each. In that order, respondent No, 1 held that the amount of expenditure tax should be a part of sale consideration and exigible to sales tax. He reopened the orders of deemed assessments under Section 11E(2) of 1941 Act and directed the assessing authority, namely, the Assistant Commissioner, Commercial Taxes, Corporate Division, to make orders of assessment under Section 11(1) of 1941 Act, because incorrect particulars of sales were furnished in the returns filed under Section 10 by not including the amount of expenditure tax therein and thereby reducing the amount of tax payable by the applicant. After the above order was passed, the applicants filed supplementary affidavit challenging it.

(3.) IN RN -239 to 242 of 1999 the concerned periods of assessments are four quarters each ending March, 1989, March, 1990, March, 1991 and March, 1992 under 1941 Act. There were deemed assessments for the aforesaid periods under Section 11E(1) of 1941 Act. In the returns for the aforesaid periods the amount of expenditure tax collected under E.T. Act was not included in the turnover, and accordingly sales tax was not paid on the amount of expenditure tax. After the aforesaid periods, there were regular assessments for the periods of four quarters ending March 31, 1993, March 31, 1994 and March 31, 1995. The assessing authorities accepted the proposition that amount of expenditure tax did not form a part of the applicant's turnover. For the first time, the respondents took the view in course of the assessment for the period of 4 quarters ending March 31, 1996 that the amount of expenditure tax constituted a part of sale price and turnover. An appeal was preferred before respondent No. 1 who rejected the same by order dated April 23, 1999. A revision has been preferred before the West Bengal Commercial Taxes Appellate and Revisional Board (in short, "the Board") which is pending. It is claimed that even though the amount of expenditure tax was not shown as a part of turnover and no sales tax was paid thereon, the applicant did not furnish any incorrect statement of turnover or incorrect particulars of sales in the returns so as to attract the mischief of Section 11E(2). There was no valid reason to reopen the deemed assessments under Section 11E(2). On May 3, 1999 applicant received notice dated April 26, 1999 issued by respondent No. 1 under Section 11E(2) alleging that there was reduction of the amount of sales tax payable for the periods of four quarters each ending March 31, 1989 to March 31, 1992 on the ground that the amount of expenditure tax was not included in turnovers. It was said in the notices that it was necessary to reopen the deemed assessments. Objections were given by the applicant to the said notices. On July 8, 1999, however, applicant received the order dated June 21, 1999 by which the deemed assessments were reopened with a direction to the assessing authority to make assessments under Section 11(1) for the said periods. Respondent No. 1 held in course of the said order that expenditure tax was a component of sale price.