N.N. Mathur, J. - (1.) IN all these three writ petitions under Article 226 of the Constitution of India arising from the judgments of the Rajasthan Taxation Tribunal, Jodhpur dated 27.9.1996 and 18.6.1997 the issue involved is whether the provisions in the Act for determination of tax include re -determination and/or whether such determination can be done as rectification of an error apparent on the face of the record.
(2.) THE writ petitioner Jagdish Rai Mittal held a non -temporary stage carriage permit for the vehicle No. RNC 628 for Hanumangarh to Kheladak route. The scope of the route permit was for five stage carriages with three return services and two shuttle service from Hanumangarh to Ranjeetpura. With effect from 15.1.1990 return services were enhanced to five return services. The District Transport Officer, Sri Ganganagar, hereinafter referred to as 'the A.O.', made the assessment of the subject vehicle for the year ending June, 1989 and issued a certificate on 8.3.1991 in favour of the petitioner to the effect that no amount of tax was outstanding against him. However, the A.O. served a show cause notice on 12.2.1991 calling upon the petitioner to explain as to why his returns be not rejected and tax be not determined and penalty be not imposed. The A.O. passed the re -assessment order on 14.2.1991, which was challenged before this Court by way of a writ petition. On establishment of the Rajasthan Taxation Tribunal, the writ petition stood transferred under Section 15 of the Rajasthan Taxation Tribunal Act, 1995. In reply to the writ petition, the department admitted that initially the scope of the said route was 5 stage carriages with three return services and two shuttle services. The fact of increase with effect from 15.1.1990 was also admitted. However, it was pointed out that there were several complaints against the bus operators that they were not plying their buses on the correct route as mentioned in their permit and evading special road tax for last number of years. The matter was enquired by the District Transport Officer (Enforcement), Head Quarter, Jaipur. It was submitted that the assessment was made before receipt of the enquiry report. It was also submitted that neither they were depositing the special road tax as per the trips shown in the time table nor as per the trips undertaken by them. Their buses were illegally taking extra trips since October, 1987. The assessment proceeded on the basis of the time table granted by the R.T.O. Accordingly, a demand was raised for a sum of Rs. 1,56,664/ -. The Tribunal found that there was no provision either in the Act or in the Rules empowering the taxing officer to make re -assessment and, as such, the impugned order of re -assessment was not sustainable. The Tribunal also found that as the special road tax upto 26.1.1989 was assessed under the law, As it then stood, and in view of the clearance certificate, it was also not a case of rectification of an error. The concluding part of the judgment of the Tribunal is extracted as follows: The writ petition is partly allowed. The reassessment order Annexure P/6 dated 14.2.1991 is quashed so far as it relates to the period upto 26.1.1989 qua the petitioner's bus. The District Transport Officer, Sri Ganganagar (respondent No. 2) will assess the petitioner's bus for the period from 27.1.1989 in accordance with the above quoted provisions of the Act. No. order as to costs.
(3.) THE petitioner assessee filed an application for review under Section 16 of the Rajasthan Taxation Tribunal Act, 1995 for clarification of expression used "in accordance with the above quoted provision of the Act" appearing in the operative part of the judgment. According to the assessee, the rate of tax was fixed by the notification issued under Section 4 -B of the Act of 1951, The assessee invited attention of the Tribunal towards Section 4 -B of the Act of 1951, which provides rate of tax and Schedule 'A' which limits the maximum rate of tax. Thus, according to the assessee, it was necessary to make a clarification, directing the District Transport Officer to assess the amount of tax only in accordance with the notification issued under Section 4 -B read with items No. 7 and 8 of the Schedule -A of the Act of 1951. The review application was registered as Review Application No. 17/1996. The department also filed a review application pointing out that the order dated 14.2.1991 was not an order of re -assessment. It was simply an assessment order under Section 8 -A(2) of the Act of 1951 and Rule 38(ii) of the Rules of 1951. Hon'ble Justice Milap Chandra Jain, Chairman of the Tribunal extracted the order of the District Transport Authority and pointed out that the order itself refers to re -assessment order. Thus, in the opinion of the Hon'ble Chairman, the impugned orders was an order of re -assessment and not an order falling either under Section 8 -A (2) of the Act of 1951 or Rule 38(1) of the Rules of 1951. The Hon'ble Chairman also found that there was no apparent mistake on the face of record attracting the provision of Rule 38 i.e. rectification of an error. It was also found that the impugned order of re -assessment cannot be described as an amendment under Sub -Rules (ii) and (iii) of Rule 38. The Hon'ble Chairman also noticed the fact that the S.L.P. filed by the department against the impugned order was dismissed by the order of the Supreme Court dated 27.3.1997. The reference was made to Kabari Pvt. Ltd. v. Shivnath Shraff, 1996 SC 742. Accordingly, the Hon'ble Chairman allowed the review application filed by the assessee in part and rejected the review application filed by the department. Shri J.P. Bansal, learned Judicial Member of the Tribunal, did not agree with the view of the Hon'ble Chairman. In the opinion of the learned Judicial Member, the power to determine the tax includes the power to re -determine under Section 8 -A. The learned Judicial Member made reference to Section 23 of the Rajasthan General Clauses Act, 1955, wherein it has been laid down that the power to make or issue orders, rules, regulations, schemes etc. includes the power to add to, amend, vary, rescind such orders etc. Thus, he allowed the application filed by the department. The review application filed by the assessee was also partly allowed. As there was a difference of opinion between the Hon'ble Chairman and the learned Judicial Member, the matter was referred to the bench of three judges. By joining Shri R.K. Nair, learned Technical Member, the larger Bench was constituted. The judgment was prepared by the learned Technical Member Shri Nair. He rejected both the review applications on the ground that the State had filed a Special Leave Petition before the Supreme Court against the judgment of the Tribunal dated 27.9.1996, which was rejected by the order of the Apex Court dated 27.3.1997. He was of the view that the Tribunal's judgment dated 27.9.1996 merged with the order of the Supreme Court and, as such, the review applications did not survive. Following the decision of the Apex Court in State of Maharashtra v. : (1996)IILLJ430SC and Sree Narayana Dharma v. Swami Prakasnanda, both the review applications were rejected. However, the Hon'ble Chairman did not agree with the views of the Technical Member. He simply expressed saying "I adhere to my views". Thus, as per the majority decisions, both the review applications were rejected by the order of the Tribunal dated 29.8.1997. The Miscellaneous Application was filed by the petitioner assessee pointing out that the majority opinion of the three judges bench was only for dismissal of the Review Application No. 20/1997 whereas by accidental slip or inadvertent omission, the majority was recorded as for dismissal of both the applications for review, though the Review Application No. 17/1996 was not even pending before the three judges Bench. The said application was rejected by a detailed order dated 17.11.1997. The State in D.B. Civil Writ Petition No. 377/1998 has challenged the order of the Rajasthan Taxation Tribunal dated 27.9.1996 and prayed that Writ Petition No. 1106/91 (R.T.T. No. 379/1995) filed by the assessee Jagdish Rai Mittal may be dismissed and the order of the assessment dated 14.2.1991 may be affirmed in its entirety. The State has also sought direction to quash the consequential orders dated 18.6.1997 (Annex. 2) and 29.8.1997 (Annex. 7). A further direction has been sought to quash the order dated 17.11.1997. In D.B. Civil Writ Petition No. 187/98, the assessee Jagdish Rai Mittal has sought direction to quash the order dated 17.11.1997 passed by the Rajasthan Taxation Tribunal in Miscellaneous Application No. 12/97. In D.B. Civil Writ Petition No. 3401/97, the petitioner assessee has sought direction to quash the order dated 27.9.1996 and 18.6.1997 passed by the Rajasthan Taxation Tribunal, Jodhpur. A further direction has been sought to quash the assessment order dated 14.2.1991 and the demand notice issued in pursuance thereof.;