(1.) PETITIONER filed return under sec. 7(1) of J&K General Sales Tax Act (Act hereafter) for the year 1982 -83 disclosing sale to tune of Rs/40573 85 P He. however did not produce account books alleging that fire broke out in the shop premises on 4.9.1983 in which all account books, including goods worth Rs. 50,000/ - and currency notes of the same value, were gutted. Petitioner in support of that fact filed police report of police station City Jammu Assessing Authority passed order on January 27,1987 assessing taxable turnover at Rs. 3 25 lacs as against sales of Rs 40573. 85P depicted by the petitioner in annual return. Assessing authority also imposed interest of Rs 37267. 50, Petitioner filed appeal against the said order before Dy. Sales tax Commissioner Jammu who an 27.8.1987 set aside -the order of assessment with direction that denovo assessment be made in the case after obtaining relevant material/evidence, if any, for completion of assessment for the year 1982 -83 and affording opportunity of being heard It appears that Commissioner Sales Tax suo moto issued notice to the petitioner under sec 12 of the Act and directed him to appear before him on 11 -12 -1989 and further to file objections as he was not satisfied about the correctness and propriety of the order passed by the appellate authority. He, However, on 16.2.1990, after hearing the parties, held that no interference was called for in the appellate decision and thus discharged the notice. Assessing Authority was also directed to proceed with denovo assessment as per direction of the appellate authority. Thereafter the Assessing authority on 29.5.1990 issued notice to the petitioner for raising assessment for the year 1982 -83 and again did not agree with the contention of the petitioner but determined the taxable turnover at Rs 2 40 lacs and further imposed interest and surcharge. Against that order petitioner filed appeal before Dy. Commissioner Sales Tax (Appeals) who vide order dated 2.26.1991 reduced the taxable sales to Rs. 90OOO/ - Petitioner also raised the plea regarding limitation which was rejected by the appellate authority.
(2.) PETITIONER has challenged the above said orders of the Assessing Authority and of the appellate form mainly on the ground that they have erred in law in not accepting his plea that no assessment could be raised as the time allowed by the Act to pass order after the appellate order had elapsed. According to him under sec.7 (15) of the Act order of fresh assessment in pursuance of appellate order can only be passed within two years from the end. of financial year in which the appellate order is passed by the appellate authority on 27.8 1987. He has further stated that limitation will start to run from 1 -4 -1987 .and assessment in pursuance to appellate order could have only been raised against him from 31 -3 -1990. The assessment order has been passer on 14 -11 -1990 and as such the same is clearly barred by limitation it is prayed in the petition that the assessment order dated 14 -11 -1990 be quashed being barred by limitation and consequently the demand notice dated 27 -6 -1991 be also quashed.
(3.) REPLY affidavit has been filed by the respondents stating therein that the present petition is not maintainable because the petitioner has exhausted all the remedies available to him under the Act and further that the assessment order has already been modified by the appellate authority reducing the taxable turnover. They have denied the allegations of the petitioners and further submitted that by virtue of fresh assessment which was made under law order dated 14 -11 -1990 has been issued and said order was within time and not barred by limitation. They have further averred that denovo assessment was made in pursuance of the order passed by the appellate authority and it could not be said to be barred by limitation under sub -sec. 15 of sec. 7 of the Act.