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NaraIn Singh Mohinder Singh Vs. the State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case NumberGeneral Sales Tax No. 11 of 1960
Judge
Reported in[1963]14STC610(P& H)
AppellantNaraIn Singh Mohinder Singh
RespondentThe State of Punjab and anr.
Appellant Advocate Bhagirath Dass, Adv.
Respondent Advocate S.D. Bahri, Adv. for;Adv. General
Excerpt:
.....period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - against this order the assessee-firm went in revision under sub-section (3) of section 21 of the act to the financial commissioner but failed on 31st march, 1959. thereafter it made an application to the financial commissioner for a reference to this court under sub-section (1) of section 22 of the act but that application was declined by him on 24th march, 1960, on the ground that no question of law arose out of his order......on the ground that that firm had stopped its business, but this application was rejected.2. the assessing authority under the act proceeded to assessment for the period from 1st april to 29th july, 1953, by an order of 18th august, 1953. on 18th november, 1953, narain singh as karta of firm manohar singh kartar singh made an application for the change of the name of that firm into narain singh mohinder singh. this application was allowed and the certificate of registration was amended to accord with the change in the name of the firm.3. on 3rd july, 1954, firm narain singh mohinder singh was assessed to sales tax for the period between 1st april, 1953, and 31st march, 1954. this would seem to cover some months for which assessment had already been made in the order of 18th august,.....
Judgment:

Mehar Singh, J.

1. There was a firm with the name of Manohar Singh Kartar Singh, which obtained a certificate of registration under Section 7 of the Punjab General Sales Tax Act, 1948 (Punjab Act No. 46 of 1948), on 18th February, 1952. Narain Singh purporting to be the karta of this firm on 14th August, 1953, applied for cancellation of that certificate on the ground that that firm had stopped its business, but this application was rejected.

2. The Assessing Authority under the Act proceeded to assessment for the period from 1st April to 29th July, 1953, by an order of 18th August, 1953. On 18th November, 1953, Narain Singh as karta of firm Manohar Singh Kartar Singh made an application for the change of the name of that firm into Narain Singh Mohinder Singh. This application was allowed and the certificate of registration was amended to accord with the change in the name of the firm.

3. On 3rd July, 1954, firm Narain Singh Mohinder Singh was assessed to sales tax for the period between 1st April, 1953, and 31st March, 1954. This would seem to cover some months for which assessment had already been made in the order of 18th August, 1953. but that is not a matter of controversy in this reference.

4. On 28th March, 1957, the Commissioner of Excise and Taxation, of his own motion under Sub-section (1) of Section 21 of the Act, exercising his powers of revision, issued notice to firm Narain Singh Mohinder Singh for revision of the assessment and proceedings connected with it as done by the Assessing Authority. Thereafter the Commissioner proceeded to consider the legality and propriety of the proceedings before the Assessing Authority in so far as the assessment to sales tax of this firm was concerned and finding that the taxable turnover had been assessed at a lesser figure than it should have been, increased the same with the result that the assessee-firm became liable to pay an extra amount as sales tax. It is not necessary to go into the figures. The order of the Commissioner is of 1st September, 1957, annexure C. Against this order the assessee-firm went in revision under Sub-section (3) of Section 21 of the Act to the Financial Commissioner but failed on 31st March, 1959. Thereafter it made an application to the Financial Commissioner for a reference to this Court under Sub-section (1) of Section 22 of the Act but that application was declined by him on 24th March, 1960, on the ground that no question of law arose out of his order. It was thereafter that the assessee-firm obtained an order from this Court under Sub-section (3) of Section 22 of the Act for reference of these three questions to this Court :-

(1) Whether the Excise and Taxation Commissioner, while exercising powers under Section 21(1) of the East Punjab General Sales Tax Act, 1948, is not bound by the provisions of Section 11A when proceeding to reassess the assessee-firm ;

(2) Whether the issue of notice on 28th March, 1957, taking suo motu action is sufficient to save limitation prescribed under Section 11A of the East Punjab General Sales Tax Act, 1948 ; and

(3) Whether the assessment should have been completed on 31st March, 1957, which is within three years of the end of the year (1st April, 1953 to 31st March, 1954), or only a notice issued within the period of three years would save the limitation ?

5. The learned Financial Commissioner has accordingly made reference of these questions to this Court by his order of 27th June, 1961.

6. In Clause (a) of Section 2 of the Act the 'Assessing Authority' is defined to mean any person authorised by the State Government to make any assessment under the Act; and in Clause (b) of this section 'Commissioner' means the Excise and Taxation Commissioner appointed under Sub-section (1) of Section 3, which provision gives power to the State Government to appoint such a Commissioner to carry out the purposes of the Act and also to appoint other persons to assist him as the State Government thinks fit. Sub-section (1) of Section 21 of the Act says:-

The Commissioner may, of his own motion or on application made to him, call for the record of any proceedings which are pending before, or have been disposed of by, any Assessing or Appellate Authority appointed under this Act, for the purpose of satisfying himself as to the legality or propriety of such proceedings or of any order made therein and may pass such orders in relation thereto as he may think fit.

7. It is immediately clear that the Commissioner is not the Assessing Authority under the Act. Sub-section (1) of Section 11A provides :-

If in consequence of definite information which has come into his possession, the Assessing Authority discovers that the turnover of the business of a dealer has been under-assessed, or escaped assessment in any year, the Assessing Authority may, at any time within three years following the close of the year for which the turnover is proposed to be reassessed and after giving the dealer a reasonable opportunity, in the prescribed manner of being heard, proceed to reassess the tax payable on the turnover which has been under-assessed or has escaped assessment.

8. It is also immediately clear that this provision gives the power of reassessment only to the Assessing Authority and apparently to no other authority.

9. In so far as the first question is concerned it is obvious that the provisions of Section 11A of the Act have no bearing on the revisional powers of the Commissioner under Sub-section (1) of Section 21 of the Act for what the Commissioner does in exercising revisional powers is to satisfy himself as to the legality or propriety of the record of any proceedings before or disposed of by the Assessing Authority or the Appellate Authority as the case may be, and he does not take proceedings for reassessment. Apart from this, Section 11A applies only to an Assessing Authority and not to a Commissioner. Consequently Section 11A of the Act has no bearing so far as the revisional powers of the Commissioner under Section 21(1) of the Act are concerned and it follows that Section 11A cannot possibly limit the revisional powers of the Commissioner under Section 21(1). The obvious answer to the question is that the Commissioner is not bound to take into consideration the provisions of Section 11A when exercising his revisional powers under Section 21(1) of the Act.

10. The learned counsel for the assessee-firm has for all practical purposes accepted that the other two questions really raise the same matter though it has been differently worded and put in the form of two questions. There, however, appears to be slight difference between the two questions. But the questions do not arise in view of the answer given to the first question. Section 11A does not in any way control the revisional powers of the Commissioner under Section 21(1) of the Act and therefore the question of notice issued to the assessee-firm on 28th March, 1957, on his own motion by the Commissioner does not attract the provisions of Section 11A of the Act. To such a notice the section does not apply and the question really does not arise. So the answer to the second question is that Section 11A of the Act has no effect upon the notice issued by the Commissioner under Sub-section (4) of Section 21 for the purpose of exercising his revisional powers under Sub-section (1) of that section. Similarly the third question does not arise because as Section 11A of the Act has no bearing on the revisional powers of the Commissioner under Section 21(1) of the Act, so the question of completion of the assessment, within three years of the year ending on 31st March, 1954, does not arise, nor does the question, whether issue of such a notice within that period saves limitation, arise. There is no limitation for the issue of such a notice. Such a notice is merely a notice intimating motion of the Commissioner to exercise his powers of revision under Section 21(1) of the Act and is not a notice for assessment or reassessment. So even this question really in the circumstances does not arise in view of the answer given to the first question. The learned counsel for the assessee-firm first refers to Commissioner of Income-tax v. Khemchand Ramdas [1938] 6 I.T.R. 414, a case under the Indian Income-tax Act, 1922, and contends that in somewhat similar circumstances in that case the Commissioner having cancelled the registration of a firm, whereupon it became liable to super-tax to which it was not liable when it was registered, gave direction to the Income-tax Officer to take necessary action against the firm. The Income-tax Officer proceeded to assess the firm to super-tax but after the expiry of the period of one year within which he could do so under Section 34 of the Indian Income-tax Act, 1922. The case was taken to the Privy Council and their Lordships quashed the assessment holding that the Income-tax Officer could not take any such action against the express provisions of Section 34 of the particular statute and the Commissioner had no power to give any such direction to the Income-tax Officer. Their Lordships pointed out that any direction which the Income-tax Officer could not have carried out according to the law was not in the power of the Commissioner to issue. This case is a false analogy so far as the present case is concerned. In that case the firm was assessed to supertax not by the Commissioner but by the Income-tax Officer who by the particular statute was prohibited from doing so beyond the period of one year from the date of the assessment and in that case he had acted after the expiry of that period. In the present case the Assessing Authority has made no move and therefore the case is no analogy that helps the assessee-firm in this reference. The learned counsel for the assessee-firm has then referred to Commissioner of Income-tax v. Edulji F. E. Dinshaw [1943] 11 I.T.R. 340, and Commissioner of Income-tax v. Mangaldas Motilal & Co. [1944] 12 I.T.R. 89, in which the learned Judges have held that under the Indian Income-tax Act, 1922, the Commissioner while exercising powers of revision under Section 33 has no power to enhance the tax assessed though he may direct the Income-tax Officer to take action under Section 34 of that Act within the time limit prescribed for initiating proceedings under that section. The learned counsel for the assessee-firm has relied upon these cases to say that the Commissioner in the present case could not have while exercising his powers of revision under Section 21(1) of the Act raised the taxable turnover of the assessee-firm and enhanced the sales tax payable by it. But a reference to this Court under Section 22 is confined only to the questions of law referred and this Court cannot go outside the meaning and scope of such questions. The point that is now raised on the basis of these two cases by the learned counsel for the assessee-firm is not subject of any of the three questions referred to this Court. In fact the first question starts with this that the Commissioner has the power to increase the taxable turnover and consequently the amount of the sales tax payable but that he can only do within the period prescribed by Section 11A of the Act. This is a new matter that is being raised in this reference and as it is outside the scope of the questions in the reference so it cannot be entertained.

11. The consequence is that so far as the first question is concerned the powers of the Commissioner under Section 21(1) of the Act are not at all controlled by Section 11A of the Act, which does not in terms apply to a Commissioner, and the other two questions with this answer to the first question are rendered meaningless and do not arise. The reference is answered accordingly. In the circumstances of the case the parties are left to their own costs.

Shamsher Bahadur, J.

12. I agree.


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