1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R M/S.MAHAVEER OIL INDUSTRIES VS C.T.O.BARMER (1) S.B.SALES TAX REVISION PETITION NO.519/2005. M/S.MAHAVEER OIL INDUSTRIES VS C.T.O.BARMER (2) S.B.SALES TAX REVISION PETITION NO.520/2005. M/S.MAHAVEER OIL INDUSTRIES VS C.T.O.BARMER (3) S.B.SALES TAX REVISION PETITION NO.521/2005. M/S.MAHAVEER OIL INDUSTRIES VS C.T.O.BARMER (4) S.B.SALES TAX REVISION PETITION NO.522/2005. .... DATE OF ORDER :- February 15,2007. P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA. Mr.Dinesh Mehta and Mr. R.Mehta, counsel for the petitioner. Mr.Anil Bhandari, counsel for the Revenue -non- petitioner. REPORTABLE BY THE COURT :- Heard learned counsel for the parties. Brief facts of the case are that petitioner is a Registered Dealer registered under the Provisions of the Rajasthan Sales Tax Act,1994. For the year 1994- 2 95, 1995-96, 1996-97, and 1998-99 and regular assessment orders were passed on different dates. The dates and details of the above orders are not relevant because of the reason that those original assessment orders are not under challenge in these revision petitions. After the above assessment orders the proceedings under Section 30 of the Act of 1994, on the ground of escaped assessment were initiated against the petitioner for all these four assessment years. For this purpose notices were issued to the assessee by the Assessing Authority in the month of June 2000. Admittedly notices for initiation of proceedings under Section 30 of the Act of 1994 were within limitation as provided under Section 30(3) of the Act of 1994.Separate Assessment Orders were passed by the Assessing Authority for above four assessment years under Section 30 on 1st August 2000. Assessee being aggrieved against the order dated 1st August 2000 preferred four separate appeals before the Deputy Commissioner (Appeals) Jodhpur which were decided 3 by the learned Deputy Commissioner(Appeals) Jodhpur vide separate orders dated 31st August 2001. The Appellate Authority after giving some relief to the assessee remanded the matter back to the Assessing Authority for passing fresh assessment orders about tax liability of the assessee. According to the petitioner the Assessment Order could have been passed by the Assessing Authority after remand only within a period of two years from the date of receipt of the order of the Appellate Authority which is the limitation provided for passing the assessment order in pursuance of remand order under Section 29 (8)(b) of the Act of 1994. That limitation expired on 5th November 2003. The Assessing Authority itself was of the view that period for passing assessment order is two years only and that period is to expire on 5th November 2003,therefore, Assessing Authority sought extension of time from Commissioner Commercial Taxes under Section 29(8)(b) of the Rajasthan Sales Tax Act,1994.The Commissioner, Commercial Taxes,Jaipur, 4 vide its order dated 11st July 2003 extended the period for passing the assessment order within further period of six months by exercising power under Section 29 (8)(b). The Assessing Authority therefore, only because of the fact that time was extended by the Commissioner, Commercial Taxes, could pass order of Assessment on 16th February 2004. In the assessment order also the Assessing Authority clearly mentioned that the period to decide the matter has been extended by the Commissioner under Section 29 (8) (b), therefore, the Assessing Authority can pass the order of assessment. In sum and substance according to assessee, the revenue's own case was that the assessment orders have been passed in extended period under section 29(8)(b) and otherwise it would have been barred by time. The petitioner preferred appeals to challenge the orders of the Assessing Authority dated 16th February 2004,passed after remand by preferring appeals before the Deputy Commissioner (Appeals) Jodhpur. In appeals the petitioner took specific objection that 5 extension of time granted by the learned Commissioner, Commercial Taxes vide order dated 11th July 03 in all these cases is absolutely null and void, as has been passed in violation to the statutory requirement under Section 29 (8) (b). According to the petitioner the Commissioner could have extended the period of limitation for passing assessment order but he could have done so after giving opportunity of hearing to assessee and by passing reasoned order. According to petitioner a bare perusal of the oder dated 11th July 2003 clearly reveals that order extending period of limitation passed under Section 29(8)(b) is not reasoned order. Admittedly no notice was given to the assessee by the Commissioner before passing order dated 11th July 2003. According to the learned counsel for the petitioner, this Court in case of CTO Spl.Circle Udaipur vs Hindustan Zinc Ltd 1992 (85) STC 142 held that the order of extension of time under section 29 (8)(b) of the Act of 1994 can be passed after notice to the assessee and order should be reasoned and reasons must come out from the order itself. The said 6 objection of the petitioner was rejected by the Deputy Commissioner Appeals while dismissing all four appeals vide order dated 22.12.2004 on the ground that the petitioner- appellants had knowledge of the order of extension of time at least from 19th July 2003 but he did not challenge the said order of extension dated 11th July 2003 till the Assessment order was passed and has challenged the order in appeal. The Appellate Authority was also of the view that objections raised by the appellant petitioner is technical in nature. Being aggrieved against order dated 22.12.2004 of the dismissal of the appeals by the Deputy Commissioner (Appeals), after rejection of the objection of the petitioner about limitation within which assessment order could have been passed by the Assessing Authority, the appellant petitioner preferred appeals before the Tax Board, Ajmer. The Tax Board, Ajmer, dismissed the petitioners appeal vide common order dated 6.9.2005 and also rejected petitioners said objection on the ground that the order passed by the Commissioner Commercial Taxes is reasoned order 7 and also took the view that the appellant failed to take action in time against the order of extension of time. The contention of the learned counsel for the petitioner with full vehemence is that once proceedings under Section 30 of the Act of 1994 started and assessment order has been passed under Section 30 on the ground of escapement of assessment and thereafter appeal is preferred and Appellate Authority remanded the matter to the Assessing Authority then Assessing Authority can pass assessment order only within the period of two years as provided under Section 29(8)(b) and no assessment order can be passed after expiry of two years. According to the learned counsel for the petitioner if the order of the Commissioner dated 11th July 2003 goes then Assessment orders passed by the Assessing Authority on 16th February 04 will also go. According to the learned counsel for the petitioner, the provisions of Section 30(3) which provides limitation for initiation of proceedings for assessment in case of escaped assessment as well as limitation for 8 completion of proceedings by passing assessment order is not applicable in case where Appellate Authority passed the order of remand in case where original proceedings were initiated under Section 30 of the Act of 1994 and for passing assessment order, limitation will be as given in Section 29(8)(b). Learned counsel for the petitioner submitted that in a case of Shiv Ratan vs CTO Bikaner WLC (Raj) 1993(2) page 374 in an identical facts and circumstances of present case where the matter was remanded by the Revisional Authority to the Assessing Authority and when notices were issued by the Assessing Authority under Section12 of the Act of 1954, (under the Act which was applicable at that time) this Court took the view that in fact proceedings are under Section 10(b)(2) and not under Section 12. Learned counsel for the Revenue submitted that firstly, in the facts and circumstances of the case, if no notice was given to the petitioner before passing the order of extension of time by the Commissioner under Section 29 (8)(b), it has not resulted into any 9 prejudice to the petitioner because of the reason that the Original Assessment Order was passed by the Assessing Authority and when proceedings under Section 30 were initiated the plea of the petitioner was accepted with respect to levy of tax on net sale and therefore, by the ultimate result petitioner has not suffered any prejudice. In view of above, the petitioners' appeals against the order of Assessing Authority dated 16th February 2004 itself were misconceived. Learned counsel for the Revenue further vehemently submitted that since at relevant time the other appeals in relation to the same legal issue were pending before the Tax Board,therefore, the Assessing Authority sought extension of time to avoid contradictory orders and for that purpose he submitted application to the Commissioner under Section 29(8) (b) and in view of the reasons mentioned and which were noticed by the Commissioner which is apparent from the order dated 11th July 2003, it cannot be said that the order is not reasoned order. 10 It is also submitted that admittedly original assessment orders passed under Section 29 were not under challenge before either the Assessing Authority as original assessment order could not have been challenged in the proceedings under Section 30 of the Act of 1994. Appellate Authority decided the appeals vide order dated 31st August 2001 and remanded the matter to the Assessing Authority in the appeals which were preferred to challenge the order passed under Section 30 and remand order was passed in those appeals arising out of proceedings under Section 30, therefore, proceedings after remand order passed by the Appellate Authority, neither the matters could have been converted into proceedings for regular assessment under section 29 nor it has been converted in the proceeding under Section 29 by operation of law. According to learned counsel, even if the revenue proceeded under assumption that the authority has the power under Section 29 (8) (b) only, which in fact and law is incorrect, and the authority had power under Section 30, it is mere exercise of 11 power by the authority under wrong provision of law and therefore, it is not a case of inherent or otherwise lack of jurisdiction of authority who has passed the order of assessment after remand. It is not in dispute that Assessing Authority had jurisdiction to pass the order under the Act, may be under Section 29 or under Section 30. According to the learned counsel for Revenue, once the proceedings started under Section 30, the Assessing Authority has power to look into the record and make further enquiry as Assessing Authority may consider necessary and pass the Assessment order. Therefore, Assessing Authority has been given powers under Section 29 to pass regular Assessment order whereas under Section 30 the Assessing Authority has been given power to pass assessment order under Section 30 itself but that is only when proceeding is initiated within the ambit of Section 30 only. It is no where mentioned in these two sections that proceedings under one section will be governed by the provisions of another section. Learned counsel Shri Rajendra Mehta also 12 assisted the Court and vehemently submitted that the limitation provided by Section 30(3) is; initially for initiation of proceedings under section 30 of the Act and thereafter for its completion. Once the proceedings started within statutory period of limitation under section 30 of the Act by the Assessing Authority it has to be completed within the period provided under section 30(3) of the Act of 1994. Once the assessment order is passed by the Assessing Authority under section 30, nothing remains to be done by Assessing Authority under section 30 of the Act of 1994. It is also vehemently submitted though appeal lies to challenge the order of Assessing Authority passed under section 30 and if the appellate authority set aside the assessment order passed under section 30 by the Assessing Authority and remands the matter to Assessing Authority, and thereafter the Assessing Authority passes the assessment order then order is not under section 30 but can pass order under section29 of the Act of 1994. It is also submitted that bar of limitation as provided under section 30(3) of the 13 Act of 1994 for initiation of proceeding under section 30 of the Act of 1994 alone has been lifted by the second part of section 30(3) which applies to cases where fresh proceedings is required to be taken by the Assessing Authority in pursuance of order of appellate authority as otherwise by the time appellate authority passes any order or issue any direction or need arises to initiate proceeding under section 30 of the Act by issuing notice under section 30(1) of the Act of 1994 the period of limitation for initiation of proceedings under section 30 may expire. To meet with this eventuality the bar of limitation only for initiation of proceedings has been lifted by the same section i.e. section 30(3) of the Act of 1994. By this, the Assessing Authority gets the jurisdiction to initiate proceedings under section 30 of the Act of 1994 in the cases for limitation for initiation of proceedings under section 30 has expired. The limitation for completion of assessment in such cases is provided under section 29(8) only and by the limitation provided for 14 completion of assessment after remand has not been lifted by the second part of Section 30(3) of the Act otherwise there will be no limitation for passing assessment order by the Assessing Authority in such cases. I have considered the submissions of the learned counsel for the parties and perused the orders referred above. Firstly it was contended that the Assessing Authority as well as the Addl. Commissioner, Commercial Taxes themselves were of the view that the limitation as given in Section 29(8)(b) is applicable. For this fact it is relevant that facts are not in dispute that notice issued in the month of June 2000 to the petitioner for all these 4 Assessment years, was issued under Section 30 of the Act of 1994 and, it is also admitted case of the petitioner that order was passed on 16th February 2004 by the Assessing Authority under Section 30 of the Act of 1994. It is also admitted that assessee preferred appeals to challenge the order dated 16th February 2004 and remand order was 15 passed by the Appellate Authority on 22nd December 2004 in the background of those facts and under the proceedings originally initiated by issuance of notice under Section 30 in the month of June 2000. It is true that after remand order dated 22nd December 2004, the Assessing Authority sought extension of time from the Commissioner Commercial Taxes, Jaipur under section 29(8)(b) and in view of the order dated 11th June 2003 passed by the Commissioner, that he also exercised power under Section 29(8)(b). It is also true that the Assessing Authority mentioned in the order dated 16th February 2004 that there was limitation for deciding the matter and that is 2 years only but the commissioner has extended the period of limitation for deciding the matter, therefore, the order is passed within limitation. The appellant challenged the order of extension of time for the first time in appeal and that objection was rejected by the Deputy Commissioner Appeals as well as by the Tax Board and that rejection admittedly not on the ground that there was no need to seek extension of time by the Assessing Authority in 16 view of sub-section (3) of Section 30 of Act of 1994 which provides that period of limitation for decding the assessment under Section 30(3) shall not be applicable for passing assessment orders in case matter has been remanded by the Appellate Authority. The question arise whether this Court while exercising power under the revisional jurisdiction can look into a plea taken by the revenue in defence in the revision petition of the assessee that the Assessing Authority had power to pass assessment order and for that there was no period of limitation ? In my opinion, this is a pure question of law in the facts of these matters. The power of revision given by Section 86 of the Act of 1994,empowers the High Court to entertain and decide the revision petition in case controversy involves a question of law. The petitioners plea was rejected by the two appellate authorities about jurisdiction of the Assessing Authority in passing the order beyond period of two years from the date of communication of order to the Assessing Authority which was passed by the Appellate Authority. For this purpose assessee is required to satisfy even to 17 revisional authority that even if the order sought to be challenged in this case which is the order passed by the Commissioner Commercial Taxes is set aside then the order passed by the Assessing Authority shall be beyond the statutory period of limitation. The order otherwise within limitation, cannot be set aside on the ground that it purports to have been passed beyond the assumed wrong provision of law by the authority whereas under legal provision actually applicable, the authority could have passed the order on the date on which it was passed. Therefore, in fact the plea taken by the Revenue is inherently involved in the revision petition of the petitioner itself. Therefore, if the Revenue is successful in showing that if it is held that even the order of extension of period of limitation passed by the Commissioner under Section 29 (8) (b) is illegal or void, the assessment order is not barred by any law, the petitioner cannot succeed in these revision. Therefore, question is that what is the period within which assessment order could have been passed by the Assessing Authority in present facts? The scheme 18 of the Act of 1994 separately provides that the Assessing Authority shall have power to pass Assessment Order in regular way under Section 29 of the Act of 1994 after the returns of that year have became due (Section 29) and for this purpose the assessee is required to submit returns in time as per Section 26 before the Assessing Authority. Whether returns filed or not, the Assessing Authority can proceed to decide the case for assessment of assessee. Complete and elaborate procedure for regular assessment is given in Section 29 of the Act of 1994 itself and not elsewhere. As per sub-section (4) of Section 29, if the Assessing Authority on scrutiny, is satisfied that the returns submitted by the dealer are correct and complete, may assess the tax on the basis of such returns and where Assessing Authority is not satisfied he may hold enquiry as provided by sub- section (5) of Section 29 and is required to assess the tax under sub-section (6) or sub-section (7) of Section 29. Such assessment orders can be passed within period as provided under Sub-section (8) (a), and (aa) 19 of Section29 itself. Therefore, it is clear that for assessment of tax regular procedure with it's limitation has been given separately and completely under section 29 itself. In addition to above even how the assessment matter will be dealt with by the Assessing Authority if the assessment order is challenged by preferring appeal and / or further appeal or in Court and matter is remanded to Assessing Authority. For that also limitation for completion of assessment is provided under Section 29 itself in sub-clause (b) of Section (8) of Section 29. Controversy in present revisions is about limitation for completion of assessment, when the original assessment order which was passed not under Section 29 but was passed under Section 30 of the Act of 1994. Period for completion of assessment by the Assessing Authority for the cases under Section 30 is separately given in sub-section (3) of Section 30 of the Act of 1994. Therefore, first it is essential to look in to Section 29(8) (a) and (b) of the Act of 1994. 20 Sub-section 8(a) of Section 29 is as under :- “(8)(a) No assessment order under this section shall be passed after the expiry of two years from the end of the relevant assessment year or one year after coming into force of this Act, whichever is latter; however, the Commissioner may for reasons to be recorded in particular case may extend such time limit by a period not exceeding six months.” Sub-section 8(b) of Section 29 is as under :- “(b)Notwithstanding anything contained in sub-section (a),where an assessment order is passed in consequence of or to give effect to , any order of an appellate authority or the Tax board or a competent court, it shall be completed within two years of the communication of such order to the assessing authority; however, the Commissioner may for reasons to be recorded in writing , extend in any particular case,such time limit by a period not exceeding six months.” Sub-clause (a) of sub-section (8) of Section 29 prescribed the limitation for passing Assessment Order under “this section” obviously means under Section 29 of the Act of 1994. The words “under this section” are significant as these words restrict application of period of limitation to the orders of assessment passed under 21 section 29 alone. The sub-clause (b) of sub- section (8) starts with words “notwithstanding any thing contained in sub-clause (a) ......................” and makes exception to the limitation prescribed by Sub- clause (a) of sub- section (8) of Section 29 only. In sub- clause (b) of Sub-section (8) of Section 29, it is not provided that “Not withstanding anything contained in sub-clause (a) or in sub-section 3 of section 30”. When sub-section (b) specifically extends the period of limitation which has been restricted by sub-clause (a) of Section 8 then by this the limitation prescribed by other section of this Act either for initiation or for completion are not affected nor can be governed. The above view finds support from the language of sub-section (3) of Section 30 of Act of 1994, therefore, it will be appropriate to quote here the Section 30 in entirety :- 30.Escaped assessment.-(1)An assessment -(a) of a person who is liable to get registration but has not got himself registered; or (b) in which , for any reason, the levy of tax or any fee or sum payable under the Act has been escaped wholly or in part; or 22 (c) wherein tax has been wholly or in part un-assessed or under assessed in any way or under any circumstances, shall be deemed an escaped assessment and the assessing authority shall on the basis of the material on record or after making such enquiry as it may consider necessary, complete such assessment within the time limit provided in sub-section (3). Explanation:- The assessment under this section shall not include that part of business which has already been assessed under Section 29. (2) Where the commissioner or Deputy Commissioner (Administration) has reason to believe that a dealer has escaped assessment to tax in any manner provided in sub-section (1), he may at anytime, subject to the time limit specified in sub-section (3), either direct the assessing authority to assess the tax or the fee or other sum or himself proceed to assess the same. (3)No notice under sub-section (1) and (2) shall be issued in respect of any escaped assessment for any year after the expiry of five years and no assessment under the said sub-section shall be completed after the expiry of eight years, from the end of the relevant assessment year; but this limitation shall not be applicable to any assessment to be made in consequence of, or to give effect to, any finding or direction contained in order passed by an appellate authority or the Tax Board or a competent court.” 23 Sub-section (3) of Section 30 starts with language “ no notice of sub-section 1 and 2 shall be issued in respect of any escaped assessment for any year ...........” Therefore, it prescribed limitation for initiation