ASOK KUMAR GANGULY,J. - (1.) THIS application has been filed challenging the judgment and order of the West Bengal Taxation Tribunal dated February 17, 2004. By the said order of the Tribunal the petitioner's prayer for reopening the assessment has been rejected as being barred by limitation. The relevant facts of this case are discussed below.
(2.) THE petitioner, a private limited company, is a manufacturer of polythene foam and also is a seller of some other items. The petitioner is also a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 and also West Bengal Sales Tax Act, 1994. On January 8, 1993 the petitioner applied for eligibility certificate under rule 3 (66a) of the Bengal Sales Tax Rules, 1941 (hereinafter referred to as "the said Rules" ). On the basis of the said application the Commercial Tax Officer, Central Section, visited the factory of the petitioner and gave a report that the petitioner is a manufacturer of plastic foam and the same is a banned item for the purpose of getting eligibility certificate under rule 3 (66a) of the said Rules. Accordingly, a report was submitted recommending rejection of the petitioner's application. In view of such adverse report being filed, the petitioner requested the respondent No. 1 to treat the petitioner's application filed for benefits under rule 3 (66a) of the said Rules as one under section 10f of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called "the said Act" ). In fact the petitioner also on legal advice made an application for deferment of tax under section 10f of the said Act. However, the petitioner's application for deferment of tax under section 10f of the said Act was granted with effect from February 20, 1993 and the petitioner's application for eligibility certificate was rejected on April 20, 1994. According to the petitioner such rejection took place without giving the petitioner an opportunity of being heard and without considering the application on merits. Against the said order dated April 20, 1994 the petitioner filed a revision on April 10, 1996 before the Deputy Commissioner of Commercial Taxes. However, the Deputy Commissioner of Commercial Taxes confirmed the order of the Assistant Commissioner of Commercial Taxes.
(3.) THEN a second revision was filed. This time the Additional Commissioner held in favour of the petitioner by an order dated March 8, 2001 and directed the Assistant Commissioner, Commercial Taxes to consider the petitioner's application under rule 3 (66a) on merits and was pleased to set aside the previous order. By the concluding portion of the said order the Additional Commissioner directed the Assistant Commissioner of Commercial Taxes to consider the petitioner's application filed for relief under rule 3 (66a) on merits and pass a fresh order after giving reasonable opportunity of being heard. Thereafter the Assistant Commissioner of Commercial Taxes took up the matter for a fresh hearing. Then by an order dated February 12, 2002 the Assistant Commissioner was pleased to hold that the plastic foam sheet manufactured by the petitioner is not a banned item under the entry at item No. 13 of Schedule X appended to rule 3 (66a) of the said Rules. The authority thereafter came to a finding that the petitioner is eligible to get tax holiday as a manufacturer of plastic foam sheet and direction was given for issuance of an eligibility certificate for tax holiday under rule 3 (66a) of the said Rules for 3 years with effect from January 5, 1993 to the petitioner as a manufacturer of plastic foam sheet.;