- (1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 praying for a direction for re -opening the assessment for the period of four quarters ending on March 31, 1998 deemed to have been made on December 31, 1999 as informed in the letter dated January 4, 2000 received on December 20, 2000 and for setting aside the order dated April 20, 2001 passed by the Deputy Commissioner of Commercial Taxes, Siliguri Circle. A similar application was also filed on behalf of the petitioner claiming identical relief and the said application was registered as RN -261 of 2001. Both the applications since were filed on identical facts and contentions, are taken up together for hearing and order. In RN -261 of 2001 the prayer for re -opening the assessment is made for the period four quarters ending on March 31, 1999 deemed to have been made on the same date, i.e., on December 31, 1999.
(2.) THE case of the petitioners in brief, is that the petitioner No. 1 is a registered dealer and the petitioner No. 2 is one of the partners of the petitioner No. 1. They are engaged in selling tea seeds grown in horticulture garden. In course of assessment for the four quarters ending March 31, 1999 a question arose, if the tea seeds available from withered flower of Camelia plant will come within serial No. 37 of the First Schedule to the West Bengal Sales Tax Act, 1994 and the tax already realised by the respondents if so, is refundable to the petitioners. It was ultimately held by the Assistant Commissioner of Commercial Taxes that tea seeds are flower seeds within the meaning of serial No. 37 of the First Schedule to the West Bengal Sales Tax Act, 1994 and exempted from payment of tax, Direction accordingly was given to the respondent No. 1 to modify his order of assessment on the basis of revised appellate order passed on May 23, 2000. In the meantime by way of amendment Section 46A was enacted and it was given effect from November 1, 1999. The assessments, therefore, done for the periods four quarters ending on March 31, 1998 and March 31, 1999 were deemed to have been made without reference to any books of accounts and simply relying upon the returns filed by the petitioners for the aforesaid periods. On December 20, 2000 the petitioners received intimation by a Memo No. 998/F dated January 4, 2000 that the assessment for the periods of four quarters ending on March 31, 1998 and March 31, 1999 was deemed to have been made on December 31, 1999 under Sub -section (1) of Section 45 of the West Bengal Sales Tax Act, 1994. On January 15, 2001, i.e., immediate after receipt of the said Memo, the petitioners submitted a representation to the Deputy Commissioner of Commercial Taxes, Siliguri Circle praying for re -opening the assessment for the aforesaid periods deemed to have been made on December 31, 1999 on the ground that the petitioners were entitled to get refund of taxes already paid on sales of tea seeds by mistake. The said application was heard by the respondent No. 3 as per direction of this Tribunal and a composite order was passed on April 20, 2001 rejecting the petitioners' prayer for re -opening deemed assessment on the ground that it was not made within six months from the date of the assessment as required under Section 46A(4) of the Act, 1994. The said order passed by the respondent No. 3 is illegal and misconceived inasmuch as, the petitioners were not aware that the assessment under Section 46A would be done, which deemed to have been made under Section 45(1) of the Act, 1994. It came to the knowledge of the petitioners on December 20, 2000 that the assessment was deemed to have been made under Section 45(1) on December 31, 1999. The petitioners therefore applied for re -opening the assessment on January 15, 2001, i.e., within the period of limitation as prescribed under Section 46A(4) of the Act. The impugned order thus passed by the respondent No. 3 on April 20, 2001 is illegal and without jurisdiction which is liable to be set aside.
(3.) THE only point for consideration, therefore, is if the period of limitation of six months for re -opening an assessment made under Section 46A of the Act, 1994 shall start from the date of communication of assessment or from December 31, 1999, the date of assessment deemed to have been made under the said Section 45(1) of the Act, 1994. It is the submission of the learned lawyer for the petitioners that the deemed assessment made under Section 46A is virtually an assessment under Section 45(1) of the Act, 1994, since it is clear from the Section 46A that the assessment in question shall be deemed to have been made on December 31, 1999 under Sub -section (1) of Section 45. Therefore, all necessary formalities and procedures provided under Section 45(1) of the Act have to be complied with except calling for the books of accounts which was dispensed with according to the said provision. Relying on a case reported in Shri Murli Manohar Mandhana v. Commissioner of Commercial Taxes [1999] 114 STC 22 (WBTT) it is submitted that the expression appearing in the section such as, "the date of such order" means "the date of communication of such order" since without communication of the order the aggrieved party cannot have the cause of action for taking further steps. Hence, the learned lawyer for the petitioners submits that the application for re -opening the impugned assessment was done within the prescribed period of limitation and in terms of the provision under Section 46A(4) of the Act since the order was communicated by the respondent No. 3 on December 20, 2000.;