M/s. Jay Shree Tea and Industries v. The Commissioner of Sales Tax & Ors.

Mr. P.C. Joshi, for Petitioner. Mr. B.B. Sharma, AGP, for Respondents. .... CORAM : V.C. DAGA & S.J. KATHAWALLA, JJ. DATE : 5TH AUGUST 2010. P.C. Perused Petition.

Heard the learned Counsel appearing for the petitioner and Mr. Sharma appearing Revenue/respondents.

This petition filed under Article 226 of the Constitution of India is directed against the notice of re- assessment dated 3rd February 1999 on the ground that the notice is barred by limitation. In addition to this, number of other legal grounds are raised, the reference to which is not necessary for the view taken herein. 2 FACTUAL BACKDROP :-

The factual backdrop reveals that the order in original (assessment order) dated 31st March 1995 was passed by the Senior Assistant Commissioner of Sales Tax (Assessment), Bombay, the Assessing Officer, under section 33(3) of the Bombay Sales Tax Act, 1959 (the BST Act) for the period 1st April 1991 to 31st March

1992. The assessment order resulted into heavy dues of Rs. 1,13,28,782/-. The said order of assessment was the subject matter of the appeal before the Deputy Commissioner of Sales Tax (Appeals), Mumbai, who was pleased to allow the appeal vide his order dated 29th October 1996, holding that the subject-sale was not a local sale and directed refund of Rs.12,55,390/- besides setting aside the order of assessment. The Deputy Commissioner of Sales Tax vide his notice dated 22nd January 1997 issued in Form-40 desired to revise the order of the appellate authority in exercise of revisional powers and served proposal order dated 22nd January 1997 passed under section 9(2) of the Central Sales Tax Act, 1956 (the CST Act) read with section 57 of the BST Act. The assessee replied to the said show cause notice and requested to drop the proceedings and discharge the notice. In reply, various legal objections were raised. The objections taken up by the assessee were sustained and the revisional authority was pleased 3 to drop the proceedings and discharge the notice vide its order dated 23rd April 1997.

It appears that the Enforcement Branch searched the premises of the petitioner on 6th March 1998. During the course of search, certain documents were seized by the Enforcement Department. Based on these documents, the Assessing Officer issued a notice of re-assessment dated 3rd February 1999 in Form-28 prescribed under Rule 34 of the Bombay Sales Tax Rules, 1959 to initiate proceedings for re-assessment under the CST Act. The petitioner again objected to the said notice contending that the notice is barred by limitation under section 35 of the BST Act, apart from the fact that the form in which the notice was issued was also not applicable to exercise powers for re-assessment under the CST Act. The said notice is a subject matter of challenge in this petition. SUBMISSIONS :-

Mr. Joshi, the learned Counsel appearing for the petitioner contends that under section 35 of the BST Act, no notice for re-assessment can be issued after expiry of period of five years from the end of the financial year. According to him, the notice of re-assessment in the case in-hand was issued after the expiry of five years. He thus, submits that the notice is beyond the 4 period of limitation and that this exercise of powers is not legal and valid. He further submits that the petitioner did not suppress any material fact while filing returns. He thus, submits that the extended period of limitation cannot be allowed to be invoked.

Mr. Joshi also canvassed various other legal contentions raised in the petition and tried to attack the notice of re-assessment and urged that the petition is liable to be allowed. PER CONTRA :-

Mr. Sharma, learned Counsel for the respondents in all fairness submits that in the factual context of the matter, it is not possible to allege any suppression of facts or mis-representation on the part of the petitioner. He thus, submits that the invocation of extended period is not available to the Revenue. He further found it difficult to bring the notice of re-assessment within a period of five years so as to bring it within the sweep of section 35 of the BST Act. CONSIDERATION :-

Having heard rival views, it is not necessary to consider various other legal contentions raised by Mr. Joshi in support of his prayer. The notice of re-assessment is liable to be quashed and set aside, on the short ground that it is beyond the period of limitation provided under section 35 of the BST Act. The 5 financial year involved in the case in-hand is 1991-92. The limitation for assessment started running from 31st March 1992, i.e. from the end of the financial year. If one calculates five years from 31st March 1992, the period of limitation expired on 31st March 1997. Under the circumstances, the notice of re-assessment dated 3rd February 1999, is clearly barred by limitation. The same is liable to be quashed and set aside on this count alone.