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Commissioner of Sales Tax Vs. Ganesh Oil Mills - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 62 of 1968
Judge
Reported in1970MPLJ395; [1971]28STC256(MP)
AppellantCommissioner of Sales Tax
RespondentGanesh Oil Mills
Appellant AdvocateK.K. Dubey, Government Adv.
Respondent AdvocateY.S. Dharmadhikari, Adv.
Cases ReferredAmarnath Ajitkumar v. The Commissioner of Sales Tax
Excerpt:
- .....along with the rules confer power on the assessing authority to assess a turnover escaping assessment. in the instant case, the assessing authority was the regional assistant commissioner, who could alone have started proceedings under section 11-a of the old act or section 19 of the new act. the proceedings in revision taken by the additional commissioner, who is not the assessing authority, cannot be construed as proceedings relatable to either section 11-a of the old act or section 19(1) of the new act.5. as a result of the above discussion, we answer the questions as follows:(1) the action to revise the assessment was relatable to section 22-b of the c.p. and berar sales tax act, 1947.(2) the proceedings in revision were barred by time, as they were taken after expiry of the.....
Judgment:

G.P. Singh, J.

1. This is a sales tax reference made by the Sales Tax Tribunal referring to us the following questions of law :

(1) Whether the action to revise the assessment in the present case in regard to the wrong rate of assessment is relatable to Section 22-B of the C.P. and Berar Sales Tax Act and the corresponding provision of Section 39(2) of the M.P. General Sales Tax Act or is it relatable to Section 11-A of the old Act or Section 19(1) of the new Act.

(2) Whether in either event the proceedings in revision are barred by limitation particularly in view of the position that the period of limitation provided in Section 10(1) of the new Act was amended with effect from 1st November, 1964, only.

(3) Whether in the event when the proceedings are relatable to Section 22-B of the old Act or Section 39(2) of the new Act is it legal and proper to substitute the limitation prescribed by these sections by the period of limitation prescribed by Section 11-A of the old Act or 19(1) of the new Act.

2. The assessee, M/s. Ganesh Oil Mills, Raipur, is a registered dealer engaged in the manufacture and sale of oil. For the period 3rd November, 1956, to 23rd October, 1957, the dealer was assessed to tax by the Regional Assistant Commissioner of Sales Tax, Raipur, on 31st August, 1961. Thereafter, the Additional Commissioner of Sales Tax, Madhya Pradesh, took suo motu proceedings in revision against the order of assessment. Purporting to act under Section 39(2) of the Madhya Pradesh General Sales Tax Act, 1958, he issued a notice to the dealer on 7th August, 1964, requiring it to show cause why the assessment order should not be revised. Finally, by his order dated 29th September, 1964, the Additional Commissioner held that the dealer was assessed at a lower rate of tax when a higher rate of tax ought to have been applied and on that view he set aside the order of assessment under Section 39(2) and remanded the case to the assessing authority for fresh assessment. Against this order passed in revision the dealer went up in appeal to the Tribunal which was allowed and the order of the Additional Commissioner was set aside. It was held by the Tribunal that the period for reassessment under Section 11-A of the Central Provinces and Berar Sales Tax Act, 1947, had expired and, therefore, proceedings in revision under Section 39(2) of the Madhya Pradesh General Sales Tax Act, 1958, were not competent. On an application made by the department the questions of law that we have already set out have been referred for our answer.

3. The period in respect of which the assessment was made in the instant case was governed by the Central Provinces and Berar Sales Tax Act, 1947, which was repealed and replaced by the Madhya Pradesh General Sales Tax Act, 1958, from 1st April, 1959. Section 11-A of the repealed Act related to assessment of turnover escaping assessment. This power, as provided in Rule 32 of the Rules made under the repealed Act, was to be exercised by the assessing authority. Section 22-B of the Act conferred power on the Commissioner to suo motu revise an order of assessment if it was prejudicial to the revenue; but an order under this Section could only be made before the expiry of two years from the date of the order sought to be revised. Under the Madhya Pradesh General Sales Tax Act, 1958, Section 19 relates to assessment of turnover escaping assessment and as provided in Rule 39 of the Rules made under this Act, this power is to be exercised by the assessing authority. Section 39(2) of the Act confers power on the Commissioner to suo motu revise an order of assessment if it is prejudicial to the revenue and provides that no proceedings for revision shall be initiated after expiry of three years from the date of the order sought to be revised.

4. The main question in the instant case is whether the proceedings in revision taken by the Additional Commissioner purporting to act under Section 39(2) of the new Act were barred by time. We have already stated that the period in respect of which the assessment was made was governed by the old Act. In such a case the provision applicable for suo motu revision by the Commissioner would be Section 22-B of the old Act and not Section 39(2) of the new Act and the period of limitation would be governed by Section 22-B of the old Act. We need not elaborate this point any further as it is fully covered by our decision in Amarnath Ajitkumar v. The Commissioner of Sales Tax, M.C.C. No. 188 of 1967 decided on 28th October, 1968. It is not disputed that if the period of limitation provided for revision in the old Act applied, the proceedings in revision in the instant case were barred by time. As regards the question whether the proceedings in revision could be construed as relatable to Section 11-A of the old Act or Section 10 of the new Act, it must be noticed that these provisions read along with the rules confer power on the assessing authority to assess a turnover escaping assessment. In the instant case, the assessing authority was the Regional Assistant Commissioner, who could alone have started proceedings under Section 11-A of the old Act or Section 19 of the new Act. The proceedings in revision taken by the Additional Commissioner, who is not the assessing authority, cannot be construed as proceedings relatable to either Section 11-A of the old Act or Section 19(1) of the new Act.

5. As a result of the above discussion, we answer the questions as follows:

(1) The action to revise the assessment was relatable to Section 22-B of the C.P. and Berar Sales Tax Act, 1947.

(2) The proceedings in revision were barred by time, as they were taken after expiry of the period prescribed in Section 22-B of the C.P. and Berar Sales Tax Act, 1947.

(3) In view of the answers given above, question No. (3) does not arise and we decline to answer it.


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