SARSWATIJI BHANDAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner is an assessee to Sales-tax. We are concerned with the assessment year 1983-84. Originally, the assessment was made for the said year, by Annexure-1, on 25-3-1985. By Annexure-2, re-assessment order dated 26-3-1987, the gross turnover was enhanced from Rs. 7,85,347-76 to Rs. 11,88,627.20. In appeal, the Joint Commissioner of Commercial Taxes, by Annexure-3 dated 29-9-1989, ordered a remit. THE petitioner states that this order was entered in the records on 18-2-1981. THE petitioner was directed to produce the accounts by the assessing authority, by Annexure-4, dated 9-7-1992. Under the proviso to Section 24 of the Bihar Finance Act, re-assessment should have been completed within two years from the date of the communication of the order passed in appeal or review or reference. In this case, it should be on or before 18-2-1993. (Two years from the date when the appellate order was entered in the records). It has not been done. THE petitioner assails the re-assessment proceedings initiated after remit, under Section 19(1) of the Act dated 9-7-1992 as illegal. According to him, the re-assessment is made as a result of the audit report. THE re-assessment proceedings are attacked on two grounds: (1) THE re-assessment proceedings based on the audit report is impermissible ; and (2) the re-assessment proceedings are barred by limitation.

(2.) THE Revenue has filed a detailed counter-affidavit dated 14-2-1993. THE petitioner has filed a reply-affidavit dated 1-4-1994. According to the Revenue, the petitioner filed a revision from Annexure-3 appellate order before the Commercial Taxes Tribunal which was dismissed on 21-1-1990. THE said order has not been communicated to the assessing authority so far. However, the petitioner produced a photostat copy of the said order on 3-8-1993. Even calculating the period of limitation from that date, the proceedings are not barred. THE appellate authority as well as the revisional authority upheld the re-assessment proceedings initiated under Section 19 of the Act. THE petitioner has not assailed the said proceedings, either by way of reference or review. Annexure-3 appellate order passed by the Joint Commissioner dated 29-9-1989 as affirmed in revision by the Commercial Taxes Tribunal dated 21-8-1990, has become final. THErein the re-assessment proceedings initiated under Section 19 of the Act has been upheld. It is not open to the petitioner to attack the re-assessment proceedings initiated under Section 19 of the Act on any ground so long as Annexure-3 appellate order as affirmed by the revisional order dated 21-8-1990 passed by the Commercial Taxes Tribunal stand. Moreover, the plea that the assessment is infirm as one based on the audit report was not urged, either before the appellate authority or before the revisional authority. THE petitioner is precluded from raising such a plea, at this stage. THE plea of limitation has no substance, since the revisional order dated 21-8-1990 has not been communicated to the assessing authority so far. Moreover, such a plea cannot be raised in proceedings under Article 226 of the Constitution of India. THE petitioner has suppressed material facts, in that he did not disclose the filing of a revision from Annexure-3 appellate order which was disposed of on 21-8-1990. THE petitioner having suppressed the said material fact is not entitled to any discretionary relief under Article 226 of the Constitution of India.

(3.) WE heard counsel for the petitioner, Mr. S. D. Sanjay and also counsel for the Revenue Mr. Rafat Alam, Government Pleader.