Skip to content


Commissioner of Sales Tax Vs. Nilei Sahoo - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtOrissa High Court
Decided On
Case Number S.J.C. No. 58 of 1960
Judge
Reported in[1961]12STC728(Orissa)
AppellantCommissioner of Sales Tax
RespondentNilei Sahoo
Advocates: G.K. Misra, Adv.
Cases ReferredSyed Mohammed Rovoother v. Deputy Commercial Tax Officer
Excerpt:
.....amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory..........referred to in this judgment.4. the second proviso to sub-section (6) of section 12 prescribes the period of limitation for an order of assessment, and it reads as follows:-provided further that no order assessing the amount of tax due from a dealer in respect of any period shall be passed later than thirty-six months from the expiry of such period.the language of this proviso is clear and unambiguous. it says that the order of assessment shall not be passed after the expiry of thirty-six months from the period for which the assessment is to be made. but this proviso occurs in sub-section (6) of section 12 though some ambiguity is created by the use of the expression 'any assessment made under this section' at the commencement of that sub-section.5. re-assessment proceedings are however.....
Judgment:

R.L. Narasimham, C.J.

1. The following question of law has been referred to this Court by the learned Member, Additional Sales Tax Tribunal, under Section 24(1) of the Orissa Sales Tax Act:-

Whether in the facts and circumstances of this case the Additional Tribunal is right in holding that the assessments for the quarters ending 30th September, 1952, and 31st December, 1952, are time-barred.

2. The admitted facts are as follows. The opposite party who is a registered dealer was assessed to sales tax for the quarters ending 30th September, 1952, and 31st December, 1952, under Sub-sections (2) and (4) of Section 12 of the Orissa Sales Tax Act. Subsequently, however, on receipt of some information regarding suppression of sales by the assessee, re-assessment proceedings under Sub-section (7) of Section 12 of the Act were started by the Sales Tax Authorities and notices were issued under that sub-section to the assessee calling upon him to submit further returns. The assessee appeared before the Sales Tax Authorities on the 24th September, 1955. After hearing him the authorities imposed a re-assessment on him on the 29th March, 1956, in respect of the quarters ending the 30th September, 1952, and 31st December, 1952.

3. The question arose as to whether the aforesaid order of reassessment was time-barred by limitation or not. The answer to this depends on a construction of Sub-sections (6) and (7) of Section 12 of the Orissa Sales Tax Act, 1947, as they stood prior to the recent amendment of 1958. As a result of this amendment the aforesaid two sub-sections have been re-numbered but for the sake of convenience the old numbers will be referred to in this judgment.

4. The second proviso to Sub-section (6) of Section 12 prescribes the period of limitation for an order of assessment, and it reads as follows:-

Provided further that no order assessing the amount of tax due from a dealer in respect of any period shall be passed later than thirty-six months from the expiry of such period.

The language of this proviso is clear and unambiguous. It says that the order of assessment shall not be passed after the expiry of thirty-six months from the period for which the assessment is to be made. But this proviso occurs in Sub-section (6) of Section 12 though some ambiguity is created by the use of the expression 'any assessment made under this section' at the commencement of that sub-section.

5. Re-assessment proceedings are however dealt with in Sub-section (7) of Section 12 which reads as follows:-

(7) If for any reason the turnover of a dealer for any period to which this Act applies has escaped assessments or has been underassessed, the Collector may at any time within thirty-six months of the end of that period call for a return under Sub-section (1) of Section 11 and may proceed to assess the amount, of tax due from the dealer in the manner laid down in Sub-section (5) of this section and may also direct, in cases where such escapement or under-assessment is due to the dealer having concealed particulars of his turnover or having, without sufficient, cause, furnished incorrect particulars thereof, that the dealer shall pay, by way of penalty, in addition to the tax assessed under this sub-section, a sum not exceeding one and a half times of the said tax so assessed.

It will be noticed that this sub-section prescribes a period of thirty-six months for the purpose of enabling the Collector to call for a return, if in respect of any period the dealer has escaped assessment. The difference in language between Sub-section (7) and the second proviso to Sub-section (6) is indeed very significant. In the latter case the period of limitation refers to the order of assessment whereas in the former case the period of limitation deals with the right of the Collector to call for returns. Moreover in Sub-section (7) no further period of limitation as to the date within which the order of re-assessment should be made is specially mentioned. Hence following even the ordinary rules of statutory construction it must be held that so long as the Collector calls for a return within 36 months after the expiry of the period which has escaped assessment, any subsequent time taken by him in passing an order of re-assessment is immaterial and will not make his order time-barred. Here admittedly, the order of re-assessment was issued on 12th September, 1955, well within the period of 36 months from the quarters ending the 30th September, 1952, and 31st December, 1952. which are relevant quarters which escaped assessment. The order of re-assessment must therefore be held to be within time.

6. The Member, Additional Sales Tax Tribunal, was presumably much influenced by the use of the expression 'in this section' in Sub-section (6) of Section 12 and thought that in view of the language even a re-assessment order under Sub-section (7) may come within the period of limitation prescribed in the second proviso to Sub-section (6). Assuming that there was such an ambiguity that was removed by the Legislature by the Orissa Sales Tax (Amendment) Act, 1954 (Orissa Act I of 1955) which came into force on 1st February, 1955. By the amending Act a third proviso was added to Sub-section (6) of Section 12 as follows :-

Provided further that the period of limitation fixed in the proviso immediately preceding shall not apply to assessment under Sub-section (7) of this section or to enhancement of assessment or order of fresh assessment made or passed under Section 23.

This being an amendment dealing with the law of limitation which is a procedural law will undoubtedly apply to pending proceedings : see Syed Mohammed Rovoother v. Deputy Commercial Tax Officer, Tirukoilur [1958] 9 S.T.C. 1. Hence the aforesaid third proviso to Sub-section (6) of Section 12 would apply when the Sales Tax Authorities ordered re-assessment on the 12th September, 1955. By that time the ambiguity, if any, had been clarified by the Legislature which expressly excluded Sub-section (7) of Section 12 from the scope of the period of limitation prescribed in the second proviso to Sub-section (6). After the date of amendment there can possibly be no doubt on this question. It is indeed strange that the Sales Tax Tribunal should have taken a contrary view.

7. For these reasons I hold that the Tribunal was wrong in holding that the assessment for the quarters in question was barred by time. The question is answered in the negative. As there is no appearance for the other side there will be no order for costs.

R.K. Das, J.

8. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //