EASTERN ENTERPRISES Vs. COMMISSIONER OF TAXES

JUDGEMENT

(1.) HEARD Dr. A. K. Saraf, learned Sr. Advocate for the petitioners and Mr.B. J. Talukdar, learned Govt. Advocate, Assam. The petitioners before us is a registered partnership firm, dealing in Indian Made Foreign Liquor, Beer, rum, gin etc. The petitioner firm filed its return of turnover for the period ending 31.3.1993 under the Assam Finance (Sales Tax) Act, 1956 and the assessment was completed by the Superintendent of Taxes in the year 1993 itself. On 7.10.1994 and 19.10.1994 the Superintendent of Taxes issued notices and the original order was rectified vide order dated 4.11.1994 and the tax demanded was duly paid/deposited. On 12.4.1999 another notice was received by the petitioner firm from the Superintendent of Taxes and the required document was submitted by them. Subsequently, the Deputy Commissioner of Taxes issued a notice under Section 36(1) of the Assam General Sales Tax Act asking the petitioner to show cause as to why a suo moto revision in respect of the return for the period ending 31.3.1993 should not be initiated. The petitioner submitted his reply, whereupon a suo moto revision was entertained and fresh assessment order was passed. In this writ petition, the petitioner has challenged the said suo moto revisional power of the Deputy Commissioner of Taxes, Guwahati mainly on the ground that no case for interference under Section 36(1) of the Assam General Sales Tax Act has been made out. In the case of Rajendra Singh v. Superintendent of Taxes (1990) 1 GLR 449, this Court held that to invoke the suo moto power of revision both the conditions precedent, i.e., 'erroneous' and 'prejudicial to the interest of revenue' must co-exist. The Court further analysed and interpreted that the above expression must reflect a defect which, is jurisdictional in nature in the assessment order which is sought to be defeated. It was further observed that the power of suo moto revision would not be available to the Commissioner merely because the Commissioner disagrees with the view of the assessing authority. The respondents have failed to show that there was ever any jurisdictional incompetency in the matter or there was any jurisdictional error. The above view was followed by this Court in a recent case of Santlal Mehendi Ratta (HUF) v. Commissioner of Taxes and Ors. (2002) 1 GLR 197. In the instant case, we find that the assessment order was passed in the year 1993, it was rectified in the year 1994. Thereafter, the Superintendent of Taxes issued notices twice but those were abandoned and the Superintendent did not proceed further. In the impugned order, the earlier order of assessment was set aside holding the same to be erroneous and it was not found to be adverse to the interest of the revenue. As regards the facts involved, we find that against debit note made by M/s Polychem Ltd., the petitioner has made certain payment and the amount was considered to be purchase price by the concerned authority contending that the Firm has imported IMFL from another State and hence the assessee is liable to pay tax on the first sale of the same. It is not disputed that IMFL cannot be imported from other State without obtaining necessary permission from the State Govt. and in the instant case there is nothing on record to show that the petitioner had obtained such permit for importing of IMFL to Assam from other State. In view of what has been stated above, we hold that the impugned order, whereby suo moto revision was entertained and the original assessment order was revised, was passed in violation of the provision of the Act and hence, not tenable under the law. The writ petition stands allowed and the impugned order passed by the Deputy Commissioner of Taxes, Guwahati Zone-A, Guwahati on 11.5.1999, is hereby set aside and the earlier order dated 17.12.1993 passed by the Superintendent of Taxes is restored.