JYOTI FORGE AND FABRICATION Vs. STATE OF ASSAM

JUDGEMENT

(1.) The appellant, an assessee under the Assam General Sales Tax Act, 1993, being aggrieved by the judgment and order dated May 17, 2007 (Jyoti Forge & Fabrication v. State of Assam) passed by a learned single judge of this Court in W. P. (C) No. 6111 of 2002 confirming the orders passed by the learned Member, Board of Revenue and the revisional order passed by the Joint Commissioner of Taxes has come before us with a submission that the learned single judge so also the subordinate Tribunals were absolutely unjustified in not appreciating that the first order of assessment was contrary to or in violation of the principles of natural justice or the statutory requirements, then the said order would be null and void and any order of remand cannot extend the limitation as provided under Section 37 of the Assam General Sales Tax Act.

(2.) The short facts necessary for disposal of the present writ appeal are that the appellant-writ petitioner is an assessee under the provisions of the Assam General Sales Tax Act. For the assessment year 1993-94 (the assessment order was made on June 20, 1996) the appellant-writ petitioner was charged in addition to his legal liability an amount of Rs. 45,870 with a clear understanding that the amount is adjustable. For the assessment year 1994-95 under the assessment order dated June 10, 1996 the appellant-writ petitioner was again additionally charged a sum of Rs. 24,499 and an observation was made that the excess amount was refundable. Out of the said two amounts which were charged extra, in the assessment year 1995-96 a sum of Rs. 8,613 was adjusted while other amount remained either for adjustment or awaiting in application for refund. For the assessment year 1996-97 the appellant-writ petitioner made an application and also claimed adjustment of the balance amount. The total tax payable for the assessment year 1996-97 was Rs. 1,11,437 out of which the balance was claimed to be adjustable. The assessing officer vide the assessment order dated December 4, 1997 adjusted the balance amount. However, on September 13, 2000 notice was issued to the appellant-writ petitioner to show cause against the reopening of the proceedings and for passing an order of rectification under Section 37. The appellant-writ petitioner applied for adjustment and thereafter he was required to appear on September 21, 2000. It appears that the said notice dated September 13, 2000 requiring the appellant-writ petitioner to appear on September 21, 2000 was served upon the appellant-writ petitioner on October 16, 2000. It appears that before the appellant-writ petitioner could be served with the notice or could appear, the assessment order was made on September 26, 2000. The authority recorded that the adjustment was contrary to the provisions of Section 30 of the Assam General Sales Tax Act so also violative of Rule 36(1) of the Assam General Sales Tax Rules, 1993. The assessing officer accordingly made the rectification, issued another order and sent a notice of demand. The appellant-writ petitioner being aggrieved by the said order filed a revision petition before the Joint Commissioner, Sales Tax, who vide his order dated August 23, 2001/November 5, 2001 observed that in accordance with Section 37 of the Act service of the notice upon the assessee was mandatory and, as noticed above, the notice was served on October 16, 2000 and much before that on September 26, 2000 the assessment order was made, the rectification order was contrary to the principles of natural justice and were also in the teeth of the requirement of the law. The revisional authority under the circumstances set aside the rectification order and remanded the matter back to the assessing officer with the direction that it should pass a fresh order after giving appropriate opportunity of hearing to the appellant-writ petitioner.

(3.) The appellant-writ petitioner being partly aggrieved by the revisional order preferred an appeal to the Board of Revenue with a submission that if during the pendency of the revisional proceedings the limitation of three years to pass a rectification order has already expired then the revisional authority could not remand the matter back to the assessing authority nor was it entitled under its revisional jurisdiction or under the provisions of law to extend the period of limitation as provided under Section 37 of the Act. The Board of Revenue, however, did not agree with the contention raised by the appellant-writ petitioner and dismissed the appeal. The appellant-writ petitioner still assertive of his right and being dissatisfied by the orders passed by the revisional authority and the appellate authority preferred W. P. (C) No. 6111 of 2002. However, the said petition, as observed above, came to be dismissed on May 17, 2007 1 (Jyoti Forge & Fabrication v. State of Assam), therefore, the appellant-writ petitioner has come up before us in this appeal.