Decided on August 29,1969



BISHAMBHAR DAYAL C. J. - (1.) THIS order will also govern the disposal of Misc. Petition No. 266 of 1969. These two petitions which raise the same points and have been filed by the same assessee as in Misc. Petition No. 264 of 1969, 1969 MPLJ 895, also arise out of two assessment orders dated 27th October 1967 for two periods, the first being from the 1st April 1959 to 31st March 1960 and the other from 1st April 1960 to 31st March 1961. In both these cases assessment had been made on the 30th November 1960 and 28th November 1961 respectively. The notices for re-assessment were issued on the 30th December 1965 in the first case and on 12th February 1966 in the second case. In these notices also no reason was given why it had been found that the original assessments suffered either from underassessment or assessment at a lower rate or escapement or wrong deduction. For the same reasons which we have given on the third point in Misc. Petition No. 264 of 1969* today, the notices in these cases are also quashed. Consequently, the re-assessment orders passed thereafter on the 27th October 1967 are also set aside. By the same orders of re-assessment dated 27th October 1967 penalties were also imposed upon the assessee which also naturally fall with the re-assessment.
(2.) LEARNED counsel for the State contended that by quashing the notice and the order of re-assessment this Court is depriving the appellate authority, where the appeals are pending, of an opportunity to do the quashing of the notice and the order of re-assessment itself and thereafter to remit the proceedings to the assessment officer for re-assessment according to law. In that case there will be no question of limitation; but if the notice and the re-assessment order is quashed by this Court, there will then be no remand order by the appellate authority and the question of limitation would crop up at the time of re-assessment if it is taken up thereafter. Reliance is placed upon section 20 of the M. P. General Sales Tax Act. Section 20 (i) is as follows:- "Nothing contained in section 18 or section 18-A or section 19 limiting the time within which any assessment or re-assessment may be made, shall apply to an assessment or reassessment made in consequence of, or to give effect to, any finding or direction contained in an order under sections 38, 39 and 44." This section merely saves limitation in a case where the appellate authority sets aside an assessment or a re-assessment and remands the case for fresh assessment or re-assessment. In that case the fresh assessment or re-assessment will not be subject to any limitation. But this is not a case where after remand merely a fresh assessment has to be made. Here, the very notice on the basis of which jurisdiction to re-assess has been acquired is invalid and, therefore, the jurisdiction to re-assess does not exist in the assessing officer. If the case had been where a valid notice had been served in time and for some reason the re-assessment order had been set aside by the appellate authority, it was possible for the appellate authority to remand the case for re-assessment according to law. But, here, the assessing officer has not acquired the jurisdiction to re-assess and the appellate authority in such a case cannot remand the case merely for re-assessment. The proceedings have to re-start from the issue of notice and that notice must be issued within the time prescribed by section 19 and must be in a proper form. We are, therefore, unable to agree with learned counsel that any right of the Department is being defeated by quashing the notice and the re-assessment order by this Court. It is well settled that in cases where fundamental right of the applicant is affected by an order and it is brought to the notice of this Court that the order imposing a tax and penalty upon the assessee is without jurisdiction, then the mere existence of an alternative remedy in the form of a pending appeal, as in this ease, is no ground for preventing the exercise of jurisdiction by this Court and the setting aside of the orders passed without jurisdiction. We, therefore, see no force in the contention of learned counsel. On behalf of the Department a question has been raised that this petition should not be entertained on behalf of the applicant Naraindas Sindhwani who has filed the petition in his personal capacity. We have considered this question in paragraph 4 of our order in M. P. No. 264 of 1969, 1969 MPLJ 895. For the reasons given there this contention is overruled.
(3.) BOTH these petitions are accordingly allowed with costs. Counsel's fee in each case is fixed at Rs. 75. The outstanding amount of the security deposit shall be refunded to the petitioner in each case. Petition allowed.;

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