SANTOSH KUMAR AGRAWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present application has been filed by one Santosh Kumar Agrawal son of late Lakhi Prasad Agrawal for quashing the notice as contained in memo no. 6072 by which the petitioner has been directed to produce the books of accounts for the period 1965 -66 to 1970 -71 by the Assistant Commissioner, Commercial Taxes, Bhagalpur.

(2.) THE contention of learned counsel for the petitioner is that his late father Shri Lakhi Prasad Agrawal was the owner of M/s Agrawal Motor Service, carrying on business of Bus Service in the districts of Saharsa and Purnea, for which he was holding permit in his individual name granted by the Regional Transport Authority. It has further been contended that original proceeding for assessment of taxes under the Act for 1965 -66 to 1970 -71 was initiated against M/s Agrawal Motor Service and the assessment order was passed on 5.9.1972 by the Superintendent of Commercial Taxes, Bhagalpur. It has further been contended that said Lakhi Prasad Agrawal died on 5.3.1972. As the father of the petitioner was already dead, petitioner filed an appeal before the Deputy Commissioner, Commercial Taxes, Bhagalpur Division, Bhagalpur who by his order dated 31.3.1975 set aside the order of the Superintendent of Commercial Taxes, Bhagalpur dated 5.9.1972 and remanded the matter back to the Assessing Authority. It has further been contended that after remand, notices were issued on 30.11.1978 separately in the name of all the co -sharers and heirs of late Lakhi Prasad Agrawal. Petitioner appeared before the Assessing Authority and filed an objection before it. However, it is contended by learned counsel that an order was passed on 1.12.1980 rejecting the objection of the petitioner behind his back. Petitioner being aggrieved by the same filed a writ petition before this Court being C.W.J.C. No. 519 of 1981. By order dated 19.3.1986 a Bench of this Court remanded the matter back to the Joint Commissioner, Commercial Taxes (Appeals), Bhagalpur to decide the matter afresh including the matter relating to the status of the assessee within a period of two months from the date of receipt of the order. The said matter after remand was heard by Joint Commissioner. Commercial Taxes (Appeals) on several dates and by order dated 29.5.1986 he remanded the matter back to the Assessing Authority with a direction to decide the matter of limitation raised by the petitioner as well as the liability of the petitioner tc pay tax under the provisions of sections 2 (d) and 3 of the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (hereinafter to be referred to as the Act). A further direction was given by the Joint Commissioner, Commercial Taxes (Appeals) to the Assessing Authority to determine the tax for the year 1965 -66 to 1969. -70 by enhancing the same by 5% and that of 1970 -71 by 10%.

(3.) THE further contention of learned counsel for the petitioner is that, in view of, aforesaid remand order, the Assessing Authority did not issue notice to the petitioner for nearly two years and finally has issued notice to the petitioner after a lapse of two years vide Annexure -3. The contention of learned counsel for the petitioner is that section 7(A) of the Act clearly envisages that subject to provision under section 7(B) any assessment of tax payable by the owner under this Act in respect of any period shall be initiated except before the expiry of four years from the expiry of such period, provided such a proceeding for reassessment was pursuant to an order on appeal, revision, reference or review may be initiated before the expiry of two years from the date of communication of such order to the Assessing Authority. As such, according to learned counsel, petitioner being covered under the aforesaid proviso was not liable for payment of tax for the period 1965. -66 to 1970 -71 as the same was beyond the period of three years from the date of initiation of initial proceeding which was on 4.7.1989.