BALIA, J. - (1.) THROUGH this writ petition, the assessee challenges the notices dated 7. 12. 94 under Sec. 12 of the Rajasthan Sales Tax Act, 1954 for re-assessment of the assessee under the Rajasthan Sales Tax Act, 1954 for the assessment years 88-89, 89-90, 90-91 and 91-92 which are Annx. 10 to 13. It appears that subsequently the file of the assessment was transferred to CTO, Anti Evasion, Jodhpur and fresh notices were issued under Sec. 12 for the same period on 21. 08. 1995 (Annx. 16 to 19) on the very same grounds by the successor Assessing Authority. It is represented by both the learned counsel that if proceedings under Annexures 10 to 13 were validly initiated, then the notices on transfer of case to another CTO issued by him will only be in continuation of existing proceedings will not be affected. So also if the notices Annexures 10 to 13 are held to be invalid, the subsequent notices merely repetition of earlier one will have no better consequence. Hence validity of notices Annexures 10 to 13 only need be examined on merit and Annexures 16 to 19 need not be examined independently.
(2.) THESE notices were initially challenged by way of writ petition before this Court as D. B. Civil Writ Petition No. 136/95 on 11th Jan. , 1995 which on constitution of the Rajasthan Taxation Tribunal under a special enactment stood transferred to that Tribunal where certain amendments were made in the petition. However, on abolition of the Tribunal, the petition again stood transferred to this Court and this is how the matter is before this Court. The notices have been challenged primarily on three grounds. (i) Firstly that the notices have been issued merely on the change of opinion as entire material relevant for the assessment has been disclosed by the assessee during the original assessment and it is after considering all the aspects of the matter the value of goods involved in execution of works contract by the assessee in its business of retreading tyres have been subjected to assessment by excluding the purchases made by him which were tax-paid and now notices to subject the turnover of the assess at a higher value of intermediary product during the completion of same job work amounts to mere change of opinion which cannot be a reason for re-opening of the concluded assessment. (ii) Secondly, notices have been issued to include the profit of estimated profit assumed to accrue on the transfer of inter-mediatory product of `treat rubber' in the process of retreading of tyres has been sought to be included by the impugned notice which is contrary to settled propositions of law laid down by the Supreme Court. (iii) Thirdly, that the notice is to include entire value of the `tread rubber' in the taxable turnover of the assessee solely on the basis of its being used within the State of Rajasthan without application of the principles governing the question whether the transaction of sale or purchase or transfer of property in the goods involved in execution of works contract is sale in the course of inter-state trade and commerce inasmuch as from the assessments earlier made and from the material disclosed it was already on record that major part of the assessee's business involved movement of goods from within State to outside State of Rajasthan because the major job work the petitioner takes from outside State of Rajasthan in pursuance of which the old tyres travel from outside State of Rajasthan within Rajasthan at the factory of the petitioner and on completion of job work in execution of which only the goods in question were involved, the retreated tyres moves out of State of Rajasthan. Also the purchases of goods used in the execution of works contract too have been made from outside State of Rajasthan in the course of interstate trade and commerce. (iv) Lastly, it has been contended that the issuance of notice for levying penalty in the facts and circumstances of the case disclose pre-determined mind of the assessing officer inasmuch as unless the assessment is primarily determined and the issues involved in the case are decided by the assessing officer, no question would arise for levy of penalty on any part of the turnover as having escaped due to non disclosure of material facts and details, of such sales, which have already been subject matter of thorough scrutiny at the earlier occasion on the existing material inviting attention to the provisions for levy of penalty for non-disclosure of material facts under Sec. 16 (1) (i) of the Rajasthan Sales Tax Act 1954 corresponding to Sec. 65 of the Rajasthan Sales tax Act 1994. In addition to aforesaid grounds common to all notices relating to four assessment periods, it has been urged by the learned counsel for the petitioner that at any rate the notice under Sec. 12 for the assessment period 88-89 is barred by time under the provisions of Sec. 12 itself as it stood at the relevant time issuing notices and therefore notices Annx. 10 issued by respondent No. 3 as well as Annex. 16 issued by respondent No. 5 suffers from inherent lack of jurisdiction on the face of it. Taking up last additional contention in the first instance, it may be noticed that w. e. f. 1. 4. 91 sub-sec. (2) of Sec. 12 of the Act of 1954 which was amended w. e. f. 1. 4. 91 reducing the period within which the assessing officer could exercise his authority for re-opening the completed assessment from 8 years to 5 years. Sub-sec. (2) of Sec. 12 of the Act of 1954, when power to initiate proceedings thereunder was exercised, reads as under:- "12 (2) No notice under sub-section (1) shall be issued in respect of any business, registration fee or exemption fee for any year after the expiry of five years from the end of the relevant assessment year: Provided that nothing contained in this sub-section shall apply to any assessment or reassessment made in consequence of, or to give effect to, any finding or direction contained in an order under Section 13, 14 or 15 or in an order of any competent court. Explanation.- Where the assessment proceedings relating to any dealer remain stayed under the orders of any competent court, the period during which the proceedings remain so stayed shall be excluded in computing the period of limitation for assessment or reassessment provided under this sub-section. " It has been the contention of Revenue at one stage that for the assessment period which ended prior to 1. 4. 91 the unamended provision as it was existing before 1. 4. 91 would apply and amendment would apply only for the assessment years falling after 1. 4. 91. In other words the amendment would affect only future assessment periods. That question has been directly subject matter of contention in S. B. Sales Tax Rev. No. 574/94 ACTO vs. Srinath Emporium, which has been decided on 27th Jan. , 2000 by this Court. This Court, in the aforesaid case has held as under:- "prescribing of period under the taxing statute are usually not considered as law of repose. That is to say that for the times, in such cases law authority re-opening of closed assessment is to be looked as on the date power thereunder is to be exercised. It is not a case for enforcement of right but it is a case of exercise of power by the authority designated under the relevant statute. When the officer takes recourse to the proceedings and exercises his power, it has to accord with provision at the time the authority under the statute seeks to exercise power conferred by statute, it has to be in accordance of conditions under which such power can be exercised. There is no vested right in any authority to exercise power in future. " and has held that in the absence of any saving clause for making any special provision for saving any action which may become barred by time due to prescribing shorter period within which power to initiate action could be exercised, no benefit can be drawn from provisions of General Clauses Act to result in any fruitful proceedings, on expiry of such period.
(3.) WE are in agreement with the aforesaid view. There cannot be any doubt about the fact that if sub-Sec. (2) of Sec. 12 applies to all the actions initiated after 1. 4. 91, the notice issued in respect of assessment year 1988-89 is clearly barred by time inasmuch as proceedings in respect of assessment year 1988-89 could have been initiated latest by 31st March 1994 and not thereafter. Therefore, the notices issued on 31st Aug. 1995 must be held to be without jurisdiction which the concerned Commercial Taxes Officer after 31. 3. 94 had no jurisdiction to issue for reassessments of turnover of financial year 88-89 under the amended provision. For this reason, Annx. 10 and 16 which relate to Asst. Year 1988-89 must be held to be invalid and deserves to be quashed. Whether mere change of opinion can be ground of re-opening? The contention that there can be no recourse to power under Sec. 12 for re-opening the concluded assessments on mere change of opinion on principle appears to be justified. It has been contended by learned counsel for the Revenue in that regard that the expression used in Sec. 12 is not `for reason to believe' akin to what has been used in the provisions vesting powers for reassessments under the Income Tax Act, 1961 but is of much wider amplitude, Sales Tax Act 1954 empowers an assessing authority to have recourse to reassessment "for any reason. " The expression "for any reason" cannot be circumscribed by inherent limitation which are appended to expression "reason to believe". He submits that expression `for any reason' within its compass, will take even change of opinion on the same facts whether or not it has received the attention of the assessing authority on the earlier occasion. He relies on, in this connection, a decision of the Supreme Court in Kameshwar Singh vs. State of Bihar (1) and two decisions of this Court in Rajasthan Felts Mfg. Co. vs. State of Rajasthan (2) and Century Ecka vs. State of Rajasthan ;