P.K.Ganguly, Judicial Member - (1.) IN this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 which is in the nature a writ application, the petitioner has challenged the notices (annexure "C") and the proposed reassessment proceeding and prays for quashing the same. The case of the petitioner is that the petitioner -firm which had been formerly a partnership firm and then became a proprietary concern is registered dealer under the Bengal Finance (Sales Tax) Act, 1941. The petitioner -firm in the course of its business also sells Replenishment licences ("REP licences"). The REP licence was adjudged as "goods" by decision dated May 1, 1995 of the honourable Supreme Court reported in [1996] 102 STC 106 (Vikas Sales Corporation v. Commissioner of Commercial Taxes). So, the State Government was held to have power to impose tax on sales of REP licences. As per that decision, respondent No. 2, Deputy Commissioner, Commercial Taxes, Dharmatala Circle, passed suo motu order of reopening of deemed assessment under Section 11E of the Bengal Finance (Sales Tax) Act, 1941 and directed respondent No. 1, C.T.O., College Street Charge, to take action for realisation of dues for the period of four quarters ending March 31, 1990 to March 31, 1992. Respondent No. 3, Assistant Commissioner, Dharmatala Circle, passed a suo motu review order dated December 27, 1996 and set aside the assessment for the four quarters ending June 30, 1986, June 30, 1987, June 30, 1988, March 31, 1989 and March 31, 1993. As per the above directions respondent No. 1, the Commercial Tax Officer, College Street Charge, issued notice dated March 31, 1997 to the petitioner for production of books of account, etc. Due to lack of proper advice the petitioner could not take steps regarding the reopening of deemed assessment and its related matters. On taking legal advice, the petitioner realised that the orders of respondent Nos. 2 and 3 as indicated above were passed not as per law and the proposed assessments for which documents had been called by respondent No. 1 were also not warranted by law. The petitioner submits return and pays tax as per return. The petitioner cannot be made liable to pay tax on sale of REP licences since the rate of tax on such sale has been fixed only on May 1, 1995 after coming into effect of the West Bengal Act of 1994. For the relevant period from 1986 to 1993 there being no rate of tax prescribed on such sale of REP licences, no tax is leviable on that score on the petitioner and accordingly no tax for such sale has been deposited by the petitioner in the Government Treasury. For what has been stated above and also for the orders dated October 15, 1996 and December 27, 1996 being not as per law, the impugned notices asking the petitioner for appearing in fresh assessment proceeding of the said periods cannot be declared valid and hence this application challenging the said notice and the proposed fresh assessment proceeding has been filed.
(2.) IT may be mentioned at the outset that this case has a chequred history. A writ challenging the notice and the proposed reassessment proceeding was filed in the High Court, Calcutta, which was registered as W.P. No. 15315 of 2000. Honourable Justice K.J. Sengupta, by order dated September 26, 2000 disposed of the writ by directing the petitioner to file the application before this Tribunal. Accordingly this application registered as RN -340 of 2000 was filed on November 29, 2000. A bench of this Tribunal at the very outset held that the application was miserably barred by limitation and the explanation given for the delay of four years since October 15, 1996 was not at all reasonable. Therefore the condonation application and the main application suffered rejection by order dated February 15, 2001. The petitioner went against that order of rejection, before the division Bench of the honourable High Court, which by order dated July 24, 2001 held, on the submission of the advocate for the Revenue and the advocate for the petitioner not opposing such submission - -that the main challenge by the applicant is not the order dated October 15, 1996 but the subsequent notices with regard to the regular assessment. That being so, the honourable Court set aside the order of the Tribunal - -rejecting condonation of delay and the main application and directed the Tribunal to reconsider the matter in the light of the prayer made by the petitioner in the application under Section 8 of the aforesaid Act. When the matter again came up here, the petitioner prayed for incorporating some matters in the body of the main application and also some added prayers by way of amendment. That application praying for amendment was rejected by this Tribunal by order dated April 12, 2002. Thus the petitioner's prayer regarding quashing the order dated October 15, 1996 (annexure "A") and order dated December 27, 1996 (annexure "B") as made in the amendment application - -was rejected by the aforesaid order dated April 12, 2002. The respondents filed affidavit -in -opposition both against the prayer for condonation and prayer for amendment. The stand of the respondent is that the order dated October 15, 1996 or December 27, 1996 had never been challenged as transpired from the judgment and order dated July 24, 2001 of honourable High Court and as evident from the prayer in the application. That being so, the original order of reopening is valid and as such every action taken subsequent to those orders by the Revenue Authority cannot be termed as unlawful, since those are passed, as per the scheme of the statute. The petitioner cannot now turn around and open a new case here which was not the one stated before the honourable High Court, which directed this Tribunal to dispose of the application as per the prayer originally made in the application. So, this Tribunal is to confine the consideration on matters subsequent to the valid reopening order of assessment as made. No new cause of action can be brought in. The petitioner already got notice regarding reopening matter. That notice gave him a cause of action to challenge it but he chose to let the matter proceed, allowed the time to run out at its own peril. The remedy therefore for challenging the notice and eventual order of respondent No. 1 has become time -barred. That being the finding of this Tribunal as per order dated February 15, 2001 and amendment application having been rejected by order dated April 12, 2002 there is no point now left for consideration and accordingly the application as framed and filed with the prayer as made should be dismissed.
(3.) THE only point for consideration is : Whether the petitioner is entitled to get the relief as prayed for.;