Dilip Kumar Seth, J. - (1.) The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ("1941 act") for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :
(2.) The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ("1956 act"). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground. 1. He points out that neither in the notice, which are annexure "b" series, nor in the impugned order dated october 23, 1998 being annexure "c", any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure "c", in view of absence of any reference to the provisions of the 1956 act. 2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure "c" is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed. 3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ("1941 rules"), since the central sales tax (west bengal) rules, 1958 ("1958 rules") in rule 9 points out that those rules are to be followed. 4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure "b", order contained in annexure "c" and the assessment made thereunder be quashed.
(3.) The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure "c" defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach. 1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure "r" to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto. 2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil. 3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.;