- (1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 for a declaration that the respondent No. 1 acted illegally by reopening the assessment under Section 46A(2) of the West Bengal Sales Tax Act, 1994 (hereinafter referred to as "the Act, 1994") for the year ended on March 31, 1998 and for setting aside the impugned order dated April 4, 2003.
(2.) THE petitioner submitted the return under Section 30(2) of the Act, 1994 without depositing any tax claiming that the goods were non -taxable. Respondent No. 2 upon verification of the said return for the fourth quarter ended on September, 1997 asked the petitioner by letter dated March 6,1998 to pay tax on the sale of ready -made garments and to file a revised return accordingly. The return, thus, was not accepted by respondent No. 2 as correct and complete. The assessment, therefore, had to be made by respondent No. 2 under Sub -section (1) of Section 45 of the Act, 1994. The provisions of the deemed assessment as were applied under Sub -section (1) of Section 46A of the Act, 1994 are not applicable in the present case. The aforesaid letter dated March 6, 1998 issued by respondent No. 2 was challenged and was declared bad in law by this Tribunal with the observation that the rate of tax had been preassessed by the said letter. Respondent No. 2, therefore, should have made the assessment under Section 45(1) but without holding such assessment under Section 45(1), respondent No. 1 by an order dated April 4, 2003 directed to reopen the assessment under Sub -section (2) of Section 46A, presuming that the assessment was deemed to have been made under law. It is, further, the case of the petitioner that the T -shirts, baba -suits, etc., are all hosiery goods made exclusively of cotton and tax -free items as per Section 24 of the Act, 1994. But respondent No. 1 did not accept the plea of the petitioner and held that the goods were taxable. The decision taken by the respondents, therefore, is illegal and arbitrary.
(3.) THE only point for consideration is, if the impugned order passed by the Deputy Commissioner, Commercial Taxes on April 4, 2003 for reopening the cases under Section 46A(2) of the Act, 1994 without making fresh assessment under Section 45(1) of the Act, is proper and justified.;