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Gopal Oil Mills Vs. Assistant Excise and Taxation Commissioner and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case Number Civil Writ Petition No. 2901 of 1982
Judge
Reported in[1984]57STC308(P& H)
AppellantGopal Oil Mills
RespondentAssistant Excise and Taxation Commissioner and anr.
Appellant Advocate B.K. Jhingan, Adv.
Respondent Advocate R.P. Bhatia, Adv. for the Adv.-General
DispositionPetition allowed
Cases ReferredHari Chand Rattan Chand & Co. v. Deputy Excise and Taxation Commissioner
Excerpt:
.....to describe that the proceedings under section 11 are initiated both by the filing of a return/returns and on the issuance of notices conceived under sub-sections (4), (5) and (6) of section 11. 9. thus proceedings for best judgment assessment can be started only by taking the aforementioned steps and not on inaction. thus, in my considered view, the commissioner though entitled to call for the proceedings of the sales tax returns disposed of by the assessing authority and equally entitled to point out to the assessing authority about its inaction pertaining to purchase tax returns, could not confer on the assessing authority the power to frame the best judgment assessment beyond the time-limit or to arrogate to himself such power on the original side. and suppose in the..........to describe that the proceedings under section 11 are initiated both by the filing of a return/returns and on the issuance of notices conceived under sub-sections (4), (5) and (6) of section 11.9. thus proceedings for best judgment assessment can be started only by taking the aforementioned steps and not on inaction. the commissioner being the revisional authority, in the exercise of his powers, could have called the record of any proceedings pending before the assessing authority and then awaken the assessing authority to go into that account, provided the proceedings he had called for had some nexus or relationship to that inaction, noticed by him, and provided further that the assessing authority had left with it the time-limit prescribed by the statute to proceed. but in.....
Judgment:

M.M. Punchhi, J.

1. This petition under Articles 226/227 of the Constitution of India raises rather two complex questions of law which may be formulated for sake of convenience as follows:

(i) Whether, at all, can an original best judgment assessment be framed by the Commissioner in exercise of his revisional powers under Section 21 of the Punjab General Sales Tax Act, 1948. unfettered by the time bar; and

(ii) Whether the record of proceedings prepared on a sales tax return be treated innately to include purchases entered by the dealer, in the absence of a purchase tax return filed for the purpose.

2. The petitioner is a registered firm and was engaged in the business of sale and purchase of oil-seeds and manufacture of oil and its by-products. It is a registered dealer within the meaning of the Punjab General Sales Tax Act, 1948 (for short 'the Act'), as also under the Central Sales Tax Act. For the assessment year 1970-71, the petitioner admittedly filed quarterly returns in form S. T. VIII disclosing a turnover pertaining to its sales, and accordingly paid sales tax thereon. The Assessing Authority, Ludhiana, issued notice under Section 11(2) of the Act in form S. T. XIV to the petitioner on 1st December, 1976, calling upon it to produce necessary books of account .and documents in support of the sales tax return filed. Finally on 26th June, 1978, the Assessing Authority framed the assessment, and since an additional demand had been created (the details of which we are not concerned presently) in the assessment, penalty was imposed. The petitioner being satisfied with the order did not appeal to the appellate authority. The assessment order is annexure PI to the petition.

3. As is plain, the assessment had itself been finalised by the Assessing Authority after a period of 5 years when computed from 1st April, 1971. The Commissioner in exercise of his powers under Section 21(1) of the Act sent for the proceedings of that assessment. On perusal thereof, he took the view that the tax on purchases undertaken by the petitioner had escaped. He then required the petitioner to give a written explanation. The petitioner was also asked to submit a list of dealer/commission agents from whom purchases of groundnut and cotton seeds had been made. Since the petitioner prevaricated to do so and had been praying for adjournments he then proceeded to assess the petitioner to the best of his judgment. With some details available with him as obtained from various dealers he came to the conclusion that the dealer was liable to pay purchase tax on substantial sums on which tax at the rate of 3 per cent amounting to Rs. 37,147 was levied. In accordance therewith demand notice was ordered to be issued.

4. The petitioner took the matter in revision before the Sales Tax Tribunal challenging the authority of the Commissioner in opening the case under Section 21(1) of the Act and framing the best judgment assessment without there being proceedings originally initiated or decided by the Assessing Authority. The Tribunal took the view however that the revisional authority had such jurisdiction. That order is dated 5th March, 1981, annexed as annexure P2 with the petition. However, on the point of quantification of deals, the Tribunal was not satisfied and thus for the limited purpose of re-determining the quantum of purchase transactions in respect of dealers mentioned in the order of the Commissioner, the said order to that extent was set aside with the direction that he should pass a fresh revisional order, after giving reasonable opportunity of being heard to the petitioner. That order is annexure P3 dated 11th March, 1982. It is against this order that the petitioner has approached this Court.

5. The learned counsel for the petitioner has contended that the petitioner concededly had not filed any purchase tax return, and the one, which, for the first time had been taken note of by the Tribunal pertaining to the quarter ending June, 1970, was not signed by any of its partners, and the said return 'was not even taken note of by the Commissioner. He has also pointed out that no positive finding had been recorded by any officer that the said return had been filed by the petitioner. In the written statement filed by the Assistant Excise and Taxation Commissioner, it has been asserted that the purchase tax return for the quarter ending June, 1970, had been filed by the petitioner. This obviously being a disputed question of fact, I had required of the learned counsel appearing for the Revenue to produce before me the said return, which on bare glance, I find to be in form S.T. VIII-A (prescribed for purchase tax returns) but is signed as if in a scrawl bereft of any details. In any case, there is no reference to it either in the orders of the Assessing Authority or that of the Commissioner. It suddenly sprang up before the Sales Tax Tribunal and there only the contention of the Revenue was noticed about the presence of the said return. But its operative value was not determined and even there was no positive finding by the Tribunal that such return had been filed and was a genuine one. it was brought to the notice of the Tribunal, possibly to contend that jurisdiction thereon could be assumed by the Commissioner since proceeding with regard thereto could be taken to be pending before the Assessing Authority. The argument indeed is in genuine but it has to be weighed in the light of the facts and circumstances emerging herein. Exercise of revisional jurisdiction by the Commissioner is always a conscious exercise and not an accidental one. By no stretch of imagination can it be said that the assumption of jurisdiction by the Commissioner should be deemed to be on the basis of the said purchase tax return (its authenticity apart) merely because it is part of the file. Not a word has been said by the Commissioner in his order annexure P3 about his being conscious of it. I am, therefore, not prepared to accept the argument that unconsciously he should be taken to have correctly exercised his jurisdiction and framed the best judgment assessment at least qua that return. He has patently proceeded on the assumption that for the assessment year in question no purchase tax returns had been filed. This petition thus has to be disposed of in the terms as if there was no such return filed despite the assertion of the respondents to the contrary.

6. The revisional jurisdiction of the Commissioner is found ordained in Section 21 of the Act. It reads as follows :

21. (1) The Commissioner may of his own motion call for the record of any proceedings which are pending before, or have been disposed of by, any authority subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein, and may pass such order in relation thereto as he may think fit.

7. As is obvious, his jurisdiction commences on the existence of a record of any proceedings pending or disposed of. The jurisdiction has an object in view, i.e., for satisfying the Commissioner as to the legality or propriety of such proceeding or order. The object sought to be achieved thereafter is to pass such orders in relation thereto as the Commissioner thinks fit. So the foundation of such jurisdiction is a record. The learned counsel for the petitioner in that light pointed out that as prescribed in Rules 22 and 25 of the Punjab General Sales Tax Rules, 1949, separate form had been prescribed for sales tax and purchase tax returns. Form S.T. VIII was meant for a sales tax return and form S.T. VIII-A for a purchase tax return. He contended that two separate forms of returns were meant to have two separate proceedings. As is plain under the mandate of the charging Section 4, a dealer coming within the ambit of that provision is liable to pay tax if his taxable turnover exceeds the prescribed limit for sales effected and purchases made, and returns are required to be filed by him in the prescribed manner. Thus he claimed that the incidence of taxation arises twofold but separately compartmentalised, though as one taxable turnover. He thus maintained that when the petitioner had failed to file the purchase tax returns, no record had been initiated (sic), no proceedings stood taken thereon and thus there was no functional basis, on which the Commissioner could invoke his revisional jurisdiction. Added thereto is the comment that no notice was served under Section 11 of the Act on the dealer for his failure to file purchase tax returns within the five years' period as prescribed therein.

8. A cursory look at Section 11 of-the Act shows that best judgment assessment can be made by the Assessing Authority under Sub-sections (4), (5) and (6) of Section 11 of the Act. In other words, framing of best judgment assessment is a positive act by the Assessing Authority. The assessment of tax under Section 11 of the Act proceeds on the functional basis of returns. Sub-section (5) thereto covers a situation, in which a dealer does not furnish returns by the prescribed date. Sub-section (6) also deals with a case in which return has not been filed by a dealer who has failed to apply for registration. Thus under Section 11 it can broadly be stated that it operates on the premises that in one case the returns have been filed and in the other they have not been filed. In the case where the returns have not been filed the period of limitation to initiate proceedings is uniform, i.e., 5 years, computable from the prescribed date in respect of any period by which a dealer is required to furnish returns. So in the case where no return has been filed by the date by which it was expected to be filed, the Assessing Authority has, in order to proceed to the best of his judgment initiate proceedings within five years. Thus it would be appropriate to describe that the proceedings under Section 11 are initiated both by the filing of a return/returns and on the issuance of notices conceived under Sub-sections (4), (5) and (6) of Section 11.

9. Thus proceedings for best judgment assessment can be started only by taking the aforementioned steps and not on inaction. The Commissioner being the revisional authority, in the exercise of his powers, could have called the record of any proceedings pending before the Assessing Authority and then awaken the Assessing Authority to go into that account, provided the proceedings he had called for had some nexus or relationship to that inaction, noticed by him, and provided further that the Assessing Authority had left with it the time-limit prescribed by the statute to proceed. But in case the prescribed time had expired the Commissioner by exercise of powers of revision could not, to my mind, confer jurisdiction on the Assessing Authority unshackled by the dictates of time. Thus, in my considered view, the Commissioner though entitled to call for the proceedings of the sales tax returns disposed of by the Assessing Authority and equally entitled to point out to the Assessing Authority about its inaction pertaining to purchase tax returns, could not confer on the Assessing Authority the power to frame the best judgment assessment beyond the time-limit or to arrogate to himself such power on the original side.

10. An illustration would not be out of place. Suppose in the instant case, the purchase tax returns had been filed and the tax assessed was claimed as nil. The Assessing Authority on the basis thereto, could have disposed of the proceedings initiated thereon, one way or the other. And suppose in the disposal thereof, some turnover had escaped, the Commissioner was then well within his right to call for the records of the case and pass such order thereon as he may have thought fit conforming to the provisions of Section 21 of the Act, but in a given situation subject to the outer limit as conceived of in Section 11.

11. A Full Bench of this Court in Hari Chand Rattan Chand & Co. v. Deputy Excise and Taxation Commissioner (Additional), Punjab [1969] 24 STC 258 (FB) while construing Section 11A of the Act in case of escaped assessment observed :.But, before he decides to exercise this power, he must come to the conclusion that the order or the proceedings suffer from the vice of impropriety or illegality and for this conclusion he has to confine himself to the record which is called for by him and which' was before the lower authority, as the lower authority can be presumed to have applied his mind only to that record. He cannot take into consideration any fresh material in order to come to this conclusion. After having come to that conclusion, he will be entitled to scrutinise the proceedings and the order passed in order to determine the correct turnover which should have been assessed to tax on the basis of that record. He cannot, however, bring to tax, in the purported exercise of revisional powers, any turnover which had not been disclosed to the Assessing Authority by the dealer or which was not discovered by him during the course of assessment and which has come to the notice of the revising authority after the expiry of three years following the close of the year to which the turnover proposed to be taxed relates. That is the function of the Assessing Authority under Section 11A of the Act and cannot be exercised by the revising authority. But, if any enquiry is to be made or some evidence has to be examined in respect of the turnover which was the subject-matter of the proceedings before the Assessing Authority or the appellate authority, the revising authority will be at liberty to make such further enquiry or to take such further evidence as he considers fit to determine the legality or propriety of the order already passed. For example, and not meaning it to be exhaustive, he can determine whether the deductions or exemptions were correctly allowed or the tax was levied at the rate prescribed. The bogus nature or the falsity of the deductions or exemptions allowed can also be gone into. To emphasise, such further enquiry or evidence must be germane to the turnover already on the record and not to the turnover which is sought to be brought in for the first time as a result of some information obtained from somewhere. That can be done by the revising authority only if on the date of hearing before him the period of limitation prescribed in section 11A has not expired. This is so because the revising authority has the power of calling for the record of the original proceedings also and deciding the same. He can call for the record of any proceedings pending before an Assessing Authority and pass such order in respect thereof as he thinks fit according to Section 21(1) of the Act. In exercise of that power he can also rely upon the information in his possession and enhance the assessment after giving notice to the dealer provided the period of limitation prescribed in Section 11A of the Act has not expired....

12. These observations go a long way to support the view I have taken above. Thus I am of the considered view that the Commissioner cannot, in the absence of purchase tax return and in the absence of issuing requisite notice within the five year period frame a revised assessment or a best judgment assessment under Section 21 of the Act.

13. Reverting back to the dates of the orders passed herein it is worthy to recall that the period in question terminated on 31st March, 1971, and the period for initiation of best judgment assessment proceedings in relation thereto terminated on 31st March, 1976. The Assessing Authority itself finalised the assessment on sales tax return on 26th June, 1978. Before the expiry of the 5 year period concededly no notice under form S.T. XIV was issued to the assessee by the Assessing Authority for its failure to file purchase tax returns. In that situation, none could be issued for the purpose by the Commissioner and no best judgment assessment could be framed by him correctively, as a substitute to the role assigned to the Assessing Authority in exercise of powers of revision. The only notice issued to the assessee on 1st December, 1976, in form S.T. XIV related to some explanation supportive of the sales tax return. Admittedly, that is no substitute for the requisite notice meant for failure to file purchase tax returns.

14. Before leaving this aspect, I deem it appropriate to mention that Section 4 of the Act, which provides incidence of taxation talks of a taxable turnover comprised of sales effected and purchases made. Turnover as such in Section 2(i)(1) of the Act stands defined inclusively to mean the aggregate of the amounts of sales and purchases subtracted by certain allowances as mentioned therein. The incidence of taxation springs undoubtedly from taxable turnover, and on the sense of being an aggregate, but the levy of tax vis-a-vis sales effected or purchases made proceeds on different basis, as the scheme of the Act suggests. It seems to me that precisely for carrying out that object in view, Rule 20 of the Punjab General Sales Tax Rules, 1949 (as it then stood), mandatorily required that the registered dealer shall furnish returns in form S.T. VIII or VIII-A or both, as the case may be, quarterly within 30 days from the expiry of each quarter. Rule 25 further requires mandatorily that these shall be signed by the registered dealer or his agent and sent to the appropriate Assessing Authority in the prescribed manner. The returns are referred to in terms of plurality and in intimate terms. In the matter of assessment in Section 11, they are again referred to in terms of plurality. If it is taken to be a single return on the aggregated taxable turnover, obliterating the distinction as marked on sales effected and purchases made, the intendment of the legislature in making their reference in plural terms would be rendered otiose. Thus I have no hesitation to hold that filing of a sales tax return in form S.T. VIII does not ipso facto mean that the proceedings are deemed to have been instituted in respect of an aggregated taxable turnover inclusive of purchase deals, returns of which have not been filed.

15. To conclude, I answer both the formulated questions at the outset in the negative, i.e., in favour of the assessee and against the Revenue.

16. No other point is argued.

17. For the foregoing reasons, this petition is allowed, the impugned orders, annexures P3 and P4, so far as they relate to purchase tax stated to be due from the petitioner, are hereby quashed. But in the circumstances of the case, the matter being not free from difficulty, there shall be no order as to costs.


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