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K.L. Kochar and Company Vs. Sales Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 445 of 1969
Judge
Reported in1971MPLJ223; [1971]28STC473(MP)
AppellantK.L. Kochar and Company
RespondentSales Tax Officer and anr.
Appellant AdvocateV.S. Dabir and ;S.K. Kamle, Advs.
Respondent AdvocateK.K. Dube, Government Adv.
DispositionPetition allowed
Cases Referred(S.C.) and The State of Kerala v. Aluminium Industries Ltd.
Excerpt:
.....direction of the commissioner of sales tax to the effect that 'the case has to be remanded to the sales tax officer, gwalior circle 2, gwalior, for disposal according to law' the sales tax officer was justified in initiating the proceedings for a fresh assessment of tax and for imposition of penalty against the petitioner in respect of the aforesaid period which was clearly more than six years beyond the time when the notice under section 18(6) was issued by the sales tax officer. in our opinion, an order remanding the case to a new authority for the initiation of proceedings does not fall within the purview of section 39(1). the word 'remand' in its ordinary grammatical and well-understood connotation only means the sending back of a case or proceeding to that tribunal or authority..........tax amounting to rs. 15,035 and further a penalty of rs. 5,000 was imposed on him by the assistant sales tax officer. feeling aggrieved by that decision, he filed a revision which was decided by the commissioner of sales tax on 30th july, 1969. the learned commissioner held that as the petitioner had no previous year, the order of assessment against him could not be passed by the assistant sales tax officer and could be made only by the sales tax officer. in this view, he set aside the order of assessment and penalty. he, however, remanded to the sales tax officer, gwalior circle 2, gwalior, the case of the petitioner for disposal according to law.2. while the said revision was pending, the petitioner made an application for staying the recovery proceedings. the commissioner, by his.....
Judgment:
ORDER

S.P. Bhargava, J.

1. The petitioner-firm M/s. K.K. Kochar and Company is a registered dealer under the M.P. General Sales Tax Act, 1958 (hereinafter called the Act). His registration was effective from 29th September, 1962. For the unregistered period, commencing from 1st April, 1961, to 28th September, 1962, the petitioner was assessed to sales tax amounting to Rs. 15,035 and further a penalty of Rs. 5,000 was imposed on him by the Assistant Sales Tax Officer. Feeling aggrieved by that decision, he filed a revision which was decided by the Commissioner of Sales Tax on 30th July, 1969. The learned Commissioner held that as the petitioner had no previous year, the order of assessment against him could not be passed by the Assistant Sales Tax Officer and could be made only by the Sales Tax Officer. In this view, he set aside the order of assessment and penalty. He, however, remanded to the Sales Tax Officer, Gwalior Circle 2, Gwalior, the case of the petitioner for disposal according to law.

2. While the said revision was pending, the petitioner made an application for staying the recovery proceedings. The Commissioner, by his order dated 8th May, 1968, stayed the recovery subject to the petitioner depositing Rs. 7,000 within one month of the date of his order. The petitioner complied with this direction.

3. Thereafter the Sales Tax Officer, Gwalior, issued a notice to the petitioner under Section 18(6) of the Act on 1st September, 1969, calling upon him to show cause as to why he should not be assessed to sales tax for the aforesaid period commencing from 1st April, 1961, to 28th September, 1962, and also to show cause as to why penalty should not be imposed upon him as he was liable to pay tax in respect of the aforesaid period and had failed to apply for registration. The petitioner has filed this petition under Article 226 of the Constitution challenging the validity and legality of the said notice and for getting it quashed. He has also prayed for a direction for the refund of the amount of Rs. 7,000 on the ground that the same is being illegally withheld without any authority of law by the respondent.

4. The contention urged by the learned Counsel for the petitioner is that under Section 18(6) notice for assessment could not be issued for a period which was beyond preceding six years from the date of notice.

5. The contention of the learned Government Advocate in reply is that the assessment which the Sales Tax Officer desired to make was in consequence of or to give effect to a direction given by the Sales Tax Commissioner under Section 39 of the Act and therefore under Section 20(1) of the Act the bar of limitation provided for in Section 18(6) did not operate.

6. The learned Counsel for the petitioner has urged that under Section 39(1) the case could not be remanded by the Commissioner to a new authority for initiating proceedings. He has further contended that the order remanding the case to the Sales Tax Officer cannot be construed as being one under Section 39(1) of the Act.

7. The question which arises for consideration on these arguments is as to whether in consequence of the direction of the Commissioner of Sales Tax to the effect that 'the case has to be remanded to the Sales Tax Officer, Gwalior Circle 2, Gwalior, for disposal according to law' the Sales Tax Officer was justified in initiating the proceedings for a fresh assessment of tax and for imposition of penalty against the petitioner in respect of the aforesaid period which was clearly more than six years beyond the time when the notice under Section 18(6) was issued by the Sales Tax Officer.

8. For appreciating the arguments advanced, it would be convenient to quote Sections 20(1) and 39(1) of the Act:

20. (1) Nothing contained in Section 18-A or Section 19 or Sub-section (1-a) of Section 52 limiting the time within which any assessment or reassessment may be made, shall apply to an assessment or reassessment made in consequence of, or to give effect to, any finding or direction contained in an order under Section 38, 39 or 44.

39. (1) The Commissioner may, either of his own motion or on application by a dealer or person made within the prescribed period from the date of the order, call for the record of the proceeding in which any order was passed, and on receipt of the record may make such enquiry or cause such an enquiry to be made, as he considers necessary and subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the dealer or person, as he thinks fit:

Provided that the Commissioner shall not revise any order under this sub-section--

(a) where an appeal against the order is pending before any authority specified in Sub-section (1) of Section 38, or where if such appeal lies, the time within which it may be filed has not expired; or

(b) where a second appeal against the order has been filed. Explanation.--An order by the Commissioner declining interference shall not be deemed to be an order prejudicial to the dealer or person.

9. In our opinion, the contention advanced by the learned Counsel for the petitioner is correct and must be given effect to. The revision which was filed before the Con missioner was against an order made by the Assistant Sales Tax Officer. Alter calling for the record of the proceedings, the Commissioner could examine the legality or propriety of the said order. It was not open to him to go beyond the order or the record and to make such an order which had the effect of initiating fresh proceedings before a totally different authority. The important limitations on the exercise of his power are: (1) that he has to pass an order subject to the provisions of this Act, (2) that he has to make an order 'thereon', i.e., on the record of the proceedings, and (3) that he cannot make an order which is prejudicial to the dealer. In our opinion, an order remanding the case to a new authority for the initiation of proceedings does not fall within the purview of Section 39(1). The word 'remand' in its ordinary grammatical and well-understood connotation only means the sending back of a case or proceeding to that tribunal or authority which had dealt with or considered it at some prior stage for taking some further action thereon (see Black's Law Dictionary, Fourth Edition, at page 1457).

10. In our view, it would simply be a misnomer to send the case back for consideration to a new and different authority and to say that such an order is an order of remand. For all purposes it is an order initiating new proceeding after quashing the earlier one and as such it does not fall within the purview of Section 39(1). As the so-called order of remand cannot be treated to be an order under Section 39, in our opinion, it cannot be held that 'in consequence of or to give effect to a finding under Section 39' the Sales Tax Officer acted in the instant case within the scope of Section 20(1) in issuing notice to the petitioner under Section 18(6). We do not agree that the bar of limitation provided in Section 18(6) is not attracted in this case.

11. Another possible way to read the order of the Commissioner is to hold that it simply drew the attention of the Sales Tax Officer to start appropriate proceedings against the petitioner if such proceedings could be legally started. In this view also, the period provided for initiation of the proceedings under Section 18(6) cannot be contravened or disregarded.

12. As regards the claim for the refund of Rs. 7,000, we may observe that the liability of the petitioner to pay that amount arose only out of the order made by the Assistant Sales Tax Officer which has been set aside by the Commissioner. We have already held that no steps could be taken against the petitioner by the Sales Tax Officer under Section 18(6) for the recovery of the amount of sales tax for the period 1st April, 1961, to 28th September, 1962, as more than six years had already elapsed when the Sales Tax Officer issued the notice on 1st September, 1969. The amount of Rs. 7,000 was paid by the petitioner only in consequence of the direction of the Commissioner dated 8th May, 1968. Nothing has been urged before us to show that the respondents are entitled to withhold the aforesaid amount. It is further clear that even if the petitioner were required to file a suit for the recovery of the said amount, the suit is well within time. We are, therefore, of the view that it is a fit case in which the petitioner's prayer for refund of the said amount should be granted.

13. It is true that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief of an action in civil court or to deny defences in such actions. The power to grant refund under Article 226 is a discretionary power but when the petitioner is shown to be clearly entitled to the amount and the remedy of suit would obviously be a costly and a cumbrous remedy, we see no reason why a direction for the refund of the amount to the petitioner which has been realised from it without the authority of law, should not be made. This view finds full support from the decision of their Lordships reported in The State of Madhya Pradesh and Anr. v. Bhailal Bhai and Ors. [1964] 15 S.T.C. 450 (S.C.) and The State of Kerala v. Aluminium Industries Ltd. [1965] 16 S.T.C. 689 (S.C.)

14. In the result, this writ petition is allowed. The notice dated 1st September, 1969, issued by the Sales Tax Officer (annexure A) is quashed on the ground that he had no jurisdiction to issue the said notice. We also direct the respondents to refund the amount of Rs. 7,000 to the petitioner which was deposited by him in pursuance of the direction of the Commissioner dated 8th May, 1968. We leave the parties to bear their own costs. The security amount shall be refunded to the petitioner.


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