STATE OF RAJASTHAN Vs. KALURAM PYARCHAND

JUDGEMENT

(1.) THIS is revision under sec. 14 of the Rajasthan Sales Tax Act against the appellate order of the Deputy Commissioner, Excise and Taxation (Appeals) Udaipur dated 11. 9. 61. The non-applicant assessee who carries on business in kirana and grains was assessed for sales tax for the period from 14. 11. 55 to 2. 11. 56 by the Assistant Sales Tax Officer Chittorgarh and a demand notice for Rs. 62. 50 np. was issued against him. The assessee filed an appeal against this order of the Assistant Sales Tax Officer before the Deputy Commissioner, Excise and Taxation, (Appeals) Udaipur, who accepted the appeal on the ground that the assessment made was time barred and set aside the order made by the petitioner on 11. 3. 61.

(2.) WE have heard the counsel for the parties and have also examined the record. The assessment is for the period 14. 11. 55 to 2. 11. 56. He was assessed tax for Rs. 62-59 NP. for this period and a demand notice was issued against him. The learned Deputy Commissioner held that the present assessment was under sec. 12 of the Rajasthan Sales Tax Act and according to this section assessment can only be made within 4 years, next succeeding that to which the tax relates and can be assessed to tax payable on the turnover which has escaped assessment. From the record it would appear that in the present case tax was not assessed prior to 31. 3. 61. It was, therefore, urged by the learned counsel for the Government that the finding of the learned appellate court that the present assessment had to be considered under sec. 12 was not based on law. The learned appellate court further observed that in the present case assessment was not made within one year after 2. 11. 56 and hence the turnover will have to be treated as escaped for any reason. The learned Government Advocate pointed out that this was a mistaken view of the law. He contended that since this was the first assessment it was not an assessment under sec. 12 of the Rajasthan Sales Tax Act but an assessment under sec. 10 and that no limitation has been prescribed for the first assessment under that section. He argued that the fact that no assessment was made previously cannot be interpreted as escaped assessment. In support of his argument he cited a ruling in A. I. R. 1958 Madhya Pradesh page 148, wherein it was laid down by their Lordships that sec. 11-A of the Madhya Pradesh Sales Tax Act (which corresponds to sec. 12 of the Rajasthan Sales Tax Act) cannot be said to govern cases where the assessment is being: made for the first time, either on return being made or where no return is made and action is taken under sec. 11 (4 ). Their Lordships continued that it is after the first assessment has been made and there is something which needs to be corrected or some assessment to be added to the assessment already made that sec. 11-A comes into the picture. Whenever such a contingency arises for any of the four reasons detailed in sec. 1-A the assessment has to be made within 3 calendar years as started in the section. This limitation cannot be read backwards into sec. 11. Assessment proceedings are not limited by time in this Act and can be carried beyond a year or even beyond three years. In this ruling their Lordships have also referred to a decision by their Lordships of the Privy Council in connection with Income Tax Act in Rajendra Nath vs. Commissioner of Income Tax, A. I. R. 1934, P. C. 30 (B ). WE, therefore, agree with the contention of the learned counsel for the Government that the present assessment proceedings are not under sec. 12 as escaped assessment. It was also argued by the learned Government counsel that even if it be held to be under sec. 12, the proceedings were within limitation. The notice was served on the non-petitioner on 10. 5. 60 for the period 14. 11. 55 to 2. 11. 56. It is therefore clearly within the period of 4 years. This extended period of limitation will be applicable since the amendment to extend such period from 3 years to 4 year came into force from the 31st March, 1959. The previous limitation of 3 years would have expired only on 2. 11. 59 and therefore when the law was amended extending the period of 4 years the extended period of limitation would apply since the previous period of limitation had not expired before the extension was made in the period of limitation. The learned counsel for the non-petitioner had nothing to say in reply.