MOHAMMED HUSSAIN Vs. STATE OF ANDHRA PRADESH
LAWS(APH)-1971-12-19
HIGH COURT OF ANDHRA PRADESH
Decided on December 29,1971

MOHAMMED HUSSAIN Appellant
VERSUS
STATE OF ANDHRA PRADESH Respondents

JUDGEMENT

A.D.V.REDDY,J. - (1.) THIS petition is directed against the order passed by the Sales Tax Appellate Tribunal, confirming the assessment of the petitioner for the year 1956-57 under the Andhra Pradesh Sales Tax Act.
(2.) THE petitioner is a dealer trading in the name of M/s. Hameedi Confectioners, Moazzam Jahi Market, Hyderabad. For the year 1956-57, he submitted a return of his turnover of Rs. 1,07,988-1-0, but the assessing authority rejected his accounts and completed the assessment on an estimated turnover of Rs. 2,54,719, by his order dated 14th September, 1957. On appeal, the Deputy Commissioner of Commercial Taxes, by his order dated 5th May, 1958, remanded the case to the Commercial Tax Officer for making a fresh assessment after giving a reasonable opportunity to the appellant to adduce evidence in his behalf. On remand, as the assessee did not produce his account books, on notices issued to him, the Deputy Commercial Tax Officer determined the turnover on basis of the previous year 1955-56 at Rs. 4,13,350. 68 by his order dated 29th March, 1961, which was communicated to the assessee on 4th August, 1961. As the appeal to the Assistant Commissioner was rejected, the appellant assessee went on appeal to the Sales Tax Appellate Tribunal and the Appellate Tribunal directed the Assistant Commissioner to admit the appeal and dispose it of according to law. The Assistant Commissioner finally on 30th November, 1967, passed an order, accepting the return filed by the assessee and rejecting the estimated turnover made by the assessing authority. As against this also, the assessee went in appeal to the Tribunal, contending that the assessment was time-barred and raising other objections. As this appeal was dismissed, he has come before us with this petition. The first contention put forward before us is that under section 14 (1) of the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the Act), the entire assessment should have been completed within four years and as the assessment in this case took nearly 12 years, it is out of time. As pointed out above, in the felicitous term often used, the assessment has had a chequered career. There has been delay at various stages. It has to be considered whether the contention of the assessee that as the entire period taken until the final disposal by the Assistant Commissioner on 30th November, 1969, accepting the returns filed by the assessee is nearly 12 years, it is beyond the time of four years prescribed under section 14 (1) of the Act and, therefore, it is out of time, is correct. Sri Mir Baquer Ali, for the above contention, has relied on the decision in The State of Orissa v. Debaki Debi ([1964] 15 S. T. C. 153 (S. C.)), followed by the Punjab high Court in Sir Sobha Singh and Co. v. Commissioner of Sales Tax ([1966] 18 S. T. C. 416 ). In the Supreme Court case cited above, their Lordships were dealing with the second proviso to section 12, clause (6), of the Orissa Sales Tax Act, which reads as follows : " Provided further that no order assessing the amount of tax due from a dealer in respect of any period shall be passed later than thirty-six months from the expiry of such period. "
(3.) IN interpreting this section along with section 23 (2) of that Act, they held that even when an appellate or revisional authority is effecting a fresh assessment by enhancing it, it is exercising the power which is conferred by section 12, and so to speak, doing the duty which an assessing authority would or ought to have performed; that any order of assessment made by the appellate authority or revising authority must therefore be held to be orders passed under section 12 as well as under section 23 and, consequently, the period of limitation prescribed in the second proviso in section 12 (6) will in terms become applicable, and that the limitation prescribed under section 12 (6) would apply to all orders of assessment, irrespective of whether they are original orders, appellate orders or revisional orders. This was followed in the Punjab case, cited above, in interpreting the provisions regarding the limitation in section 11 (2) (a) of the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi. Periods of limitation fixed however differ in different enactments and they have to be interpreted and construed in the context of each statute. In the present case, when the question of limitation was raised before the Appellate Tribunal, the Appellate Tribunal held that the original assessment was made under the Hyderabad General Sales Tax Act, that under that Act there was no limitation prescribed for the making of the original assessment and, hence, the question would not arise. It is now contended that by virtue if section 41 of the Andhra Pradesh General Sales Tax Act, which replaced the Hyderabad Act, which was repealed under the above-said provision, it was provided that any proceedings before the assessing or appellate or revisional authorities pending at the commencement of the new Act, shall, after such commencement, be disposed of as if this Act had been in force on the date on which such application, appeal or revision or other proceedings are made or preferred and that, therefore, the provisions of the new Act will apply with regard to these proceedings. This proposition is conceded by Mr. Venkatappaiah Sastry, appearing for the department. It is therefore to be seen what is the limitation prescribed under the provisions of section 14 (1) for the assessment. The relevant provision of section 14 (1) reads as follows : ". . . . . . . . An assessment under this section shall be made only within a period of four years from the expiry of the year to which the assessment relates. " ;


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