- (1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 in which the order dated April 20, 2001 passed by respondent No. 3, Deputy Commissioner of Commercial Taxes, Siliguri Circle, has been challenged with a prayer for allowing the applicants' prayer made under Section 46A(4) of the 1994 Act, for reopening assessment for the period of four quarters ending March 31, 1999 deemed to have been made under Section 46A(1) of the 1994 Act. This application is heard along with application in RN -259 of 2001 as the facts in their nature and the legal implications are the same.
(2.) IT appears that applicant No. 1 is a registered dealer in Siliguri Charge under the West Bengal Sales Tax Act, 1994 and having sales tax registration certificate and is engaged in selling tea seed grown in his horticultural garden. During the period of four quarters ending March 31, 1997 a question arose as to whether tea seed grown and sold by the applicant is or is not flower seed within the meaning of Serial No. 37 of the First Schedule to the Act of 1994. In RN -106 of 2001, this Tribunal directed the Assistant Commissioner to hear afresh on that specific point and dispose of the appeal. The Assistant Commissioner gave a finding by order dated August 25, 2000 that there is no difference between tea seed and Camelia flower seed and therefore modified the assessment order and directed the Commercial Tax Officer, Siliguri Charge to issue fresh demand notice in the line of the said notification. In the meantime, Section 46A of the 1994 Act was enacted and said section came into operation with effect from November 1, 1999. Under that section the assessment for the period of four quarters ending March 31, 1999 was deemed to have been made without any reference to the books of account, etc., and the petitioner came to know for the first time about such deemed assessment for the said period only on November 23, 2000 on receipt of the respondent's letter being memo No. 162 dated February 2, 2000. Therefore on January 15, 2001, the petitioner filed a petition before the Deputy Commissioner, respondent No. 3, praying for an order for reopening the assessment for the period of four quarters ending March 31, 1999 deemed to have been made on December 31, 1999 under Section 46A read with Section 45(1) of the 1994 Act. Prayer was also made to make fresh assessment order as the applicant was entitled to get refund of the taxes already paid on sales of tea seed, that is Camelia flower seed, which is non -taxable. As no response was received application was filed before this Tribunal which was registered as RN -114/2001 and 116/2001. This Tribunal directed the Deputy Commissioner, Commercial Taxes, Siliguri Circle, to hear the applications on the point of limitation. The Deputy Commissioner by order dated April 20, 2001 held the applications to be not maintainable under the law as the applicant failed to apply within statutory limit of six months from the date of the order, that is December 31, 1999, (the date of the order of the deemed assessment). Being aggrieved, the petitioners have come up here praying for the aforesaid relief.
(3.) WE have heard at length both sides on the question of limitation. The contention of the learned Advocate for the petitioner is that the limitation of six months for filing application for reopening the deemed assessment must start not from the date of the order that is December 31, 1999, but from November 23, 2000 which is the date of receipt by the petitioner of the respondent's letter dated February 2, 2000. As the petitioners filed application for reopening, the petitioners were within time and the impugned finding, otherwise of the Deputy Commissioner is arbitrary and illegal and as such required to be set aside. On the other hand, learned State Representative strongly supported the finding made by the Deputy Commissioner as the same is quite lawful and as such the same is not liable to be set aside.;