B. Prasad, J. - (1.) THE petitioner is a company which is engaged in the business of manufacturing and selling of Portland cement. THE company is a registered dealer under the Rajasthan Sales Tax Act, 1994 hereinafter referred to as "the RST Act" and the Central Sales Tax Act, 1956 (hereinafter referred to as "the CST Act"). It is claimed by the petitioner that the Government of Rajasthan issued Notification No. F. 4(72)FD/GR.IV/81-1-S dated May 6, 1986. By this notification, partial exemption was granted from the tax payable in respect of inter-State sales in the manner and subject to the conditions mentioned in the notification. THE petitioner claims that this partial exemption from tax payable on inter-State sales is given to reduce branch/stock transfers on which no tax is leviable under the CST Act. THE petitioner claims that the present writ petition is not related to quantum of exemption available under the notification. THE dispute circles around the sale of levy cement. THE case of the petitioner is that in computing the tax, levy cement cannot be taken into account. THE figures of levy cement have to be excluded from levy of tax.
(2.) THE petitioner further claims that in terms of clause (1) of the aforesaid notification, benefit is allowable to the petitioner on the basis of its percentages of branch transfers. THE base year for the purpose of the notification is claimed to be from April 1, 1984 to March 31, 1985. THE petitioner moved an application before the regular assessing authority, i.e., Commercial Taxes Officer, Special Circle, Pali. It was requested by the petitioner in the application that the percentages of inter-State sales and branch transfers of non-levy cement be determined for the base year 1984-85. This was required to follow the benefit under the notification dated May 6, 1986. THE Commercial Taxes Officer, Special Circle, Pali, after verifying and scrutinising the records of the petitioner determined the following percentages of inter-State sales, branch transfers and intra-State sales of non-levy cement of the base year 1984-85 in terms of the notification. Excluding levy sales Quantity in MT percentages Branch transfers 226839.800 85.28% Inter-State sales 6667.400 2.51% Sales 32488.550 12.21% 265995.750 100.00% Regular CST assessments for the assessment year 1989-90 April 1, 1989 to March 31, 1990 and 1990-91 (April 1, 1990 to March 31, 1991) were made by the regular assessing authority. An application for rectification was moved by the petitioner in view of the order dated February 3, 1995 by virtue of which the branch transfers, inter-State and intra-State sales were delineated by the C.T.O., Pali. THE rectification applications filed by the petitioner were rejected by the assessing authority vide order dated September 21, 1996 on the ground that claim for partial exemption was not made in time. THE order of rejection was challenged by the petitioner. THEy filed two appeals before the Deputy Commissioner (Appeals). THEse appeals were allowed by the appellate authority vide common order dated December 26, 1998 and the matter was remanded back to the assessing authority to allow the benefit of partial exemption in respect of inter-State sales of non-levy cement. It was observed by the appellate authority that the notification dated May 6, 1986 did not provide for any time-limit for claiming exemption and therefore, compared to base year 1984-85, the petitioner's inter-State sales have increased in both the years and a direction was made to refund the amount. The petitioner has further claimed that the department was under obligation to refund the amount and pay tax. The petitioner has claimed that the assessment for the year 1991-92 was completed on January 10, 1995 and appeal was filed before the Deputy Commissioner (Appeals). In these proceedings, the petitioner had claimed the benefit of partial exemption under the abovementioned notification. This appeal was however rejected. A second appeal in the matter is pending before the Rajasthan Tax Board, Ajmer. In relation to the assessment years 1992-93 and 1993-94, the petitioner filed appeals against the assessment orders. In these appeals, the appellate authority held in favour of the petitioner and remanded the matter back to the assessing authority and a direction was given by the appellate authority that amount of partial exemption should be refunded with interest. It has been further claimed by the petitioner that in partial compliance of the order of the appellate authority, the assessing authority passed order dated March 26, 1999 for the assessment years 1992-93 and 1993-94 allowing partial exemption in respect of inter-State sales of levy cement on account of increase as against such percentages of the base year 1984-85. The assessing authority also directed refund of the amount of partial exemption. The prayer of interest however not acceded to The assessing authority did not allow the interest while ordering refund for the years 1989-90, 1990-91, 1992-93 and 1993-94 Against such orders of not allowing interest, appeals are pending before the Deputy Commissioner (Appeals), Jodhpur Rectification applications are also pending before the assessing authority claiming interest on the refund of amount for all these years. The assessing authority for the assessment year 1994-95 allowed partial exemption in terms of notification The petitioner has not claimed partial exemption in relation to the assessment years 1995-96 and 1996-97 For the year 1997-98, partial exemption was allowed. The petitioner in the writ petition alleged that for years 1998-99, assessing authority, namely, Commercial Taxes Officer, Pali, did not allow partial exemption vide his assessment order dated January 15, 2001 It had observed that partial exemption was not admissible Such order of the assessing authority is against the purport, terms and spirit of the notification dated May 6, 1986 The order is also against the orders of the first appellate authority which are binding on the assessing authority The appeal against such assessment order for the year 1998-99 is pending before the Deputy Commissioner (Appeals). It is claimed by the petitioner that the petitioner has been granted partial exemption under notification dated May 6, 1986 during the assessment year 1990-91, 1991-92, 1992-93, 1994-95 and 1997-98 on the basis of the notification referred to hereinabove The exemption for the year 1995-96 and 1996-97 was rejected and appeals are pending against those orders The petitioner had not claimed partial exemption in relation to year 1995-96 and 1996-97.
(3.) THE claim for the partial exemption for the year 1997-98 and 1998-99 is pending before the Rajasthan Tax Board and Deputy Commissioner (Appeals) It has also been claimed by the petitioner that partial exemption has been allowed in relation to 1989-90, 1990-91, 1991-92, 1992-93 and 1993-94 by the first appellate authority THE assessing authority has also granted exemption for the years 1994-95 and 1997-98 on the basis of notification. THE petitioner alleges that a survey was conducted by Antievasion, Circle I, Jaipur, respondent No. 2 at the business premises of the petitioner on February 16, 2001 and purportedly examined the partial exemption already granted to the petitioner for the year 1997-98 THE petitioner's representative fully apprised the officers conducting the survey of the entire position and complete history and convinced them of the purport of the notification dated May 6, 1986 However, the survey officers were not fully convinced and respondent No. 2 has given reassessment order dated April 19, 2001 to the petitioner, inter aha, stating that partial exemption has been wrongly granted in relation to the assessment year 1997-98 By the said notice, the petitioner has been called upon to show cause as to why the said exemption be not withdrawn and penalty under section 65 of the RST Act be not imposed THE said notice is under challenge in the present writ petition. The claim of the petitioner is that respondent-department has allowed partial exemption to the petitioner and has held that the benefit of the notification is available to the petitioner Once denied the benefits permitted to avail, the same cannot be now interpreted differently The interpretation sought to be given by the respondent No 2 is patently wrong and also against the accepted position The reassessment notice is illegal and void. The petitioner has claimed that it is well-settled that respondent No. 2 cannot re-invoke jurisdiction under section 30 of the RST Act on mere change of opinion on same facts It has been claimed that it cannot be disputed that in the present case, the matter of partial exemption directly received attention of the assessing authority on earlier occasion The assessing officer cannot be vested with the power to reopen the closed assessment. It has also been claimed that the Anti evasion Wing had no authority to initiate proceedings The Anti-evasion Wing under sub-rule (5) of rule 3 of the Rajasthan Sales Tax Rules, 1995 (hereinafter referred to as "the RST Rules") is not vested with such jurisdiction The only contingency where Anti evasion Wing can issue notice is under notification dated October 23, 1967 where a dealer is found to have evaded or concealed liability of tax Such notice can be issued for reassessment, penalty and interest which is not the case in case of the petitioner Therefore, notice is without jurisdiction No case for concealment of liability of tax has been deducted against the petitioner by the respondent No. 2. ;