- (1.) THIS petition has been filed challenging the impugned re-assessment order and the demand notice dated 21-12-2002 and the recovery notice dated 10-2-2003.
(2.) LEARNED counsel for the petitioner has submitted that subsequent to a search under Section 77 of the Rajasthan Sales Tax Act, 1994 (herein after 'the 1994 Act') conducted at the Jaipur Branch of the petitioner company on 3-5-2002 a notice came to be issued to the petitioner company under Sections 28, 58 and 65 of the 1994 Act. He submits that following the notice, a fresh assessment order cum demand notice dated 21-12-2002 came to be passed and total tax liability of the petitioner company including towards tax allegedly short paid, interest and penalty was determined at Rs.3,09,11,191/-. It is submitted that as the assessment order cum demand notice dated 21-12-2002 purported to be for the assessment year 2000-01 in fact covered period both under Assessment Year 2000-01, and 2001-02, the petitioner company moved an application for rectification of the order dated 21-12-2002. It is submitted that consequently a rectified order dated 25-4-2004 came to be passed by the Assessment Officer, whereby out of the demand for Rs.3,09,11,191/- created for the year 2000-01, an amount of Rs.31,78,318/- was deleted from the financial year 2000-01 and was shifted to the financial year 2001-02. Counsel submits that thereafter aggrieved of the order of alleged evasion of tax (plus interest and penalty) by the petitioner company, it filed an appeal before the Dy. Commissioner (Appeals), who vide order dated 8-7-2008 allowed the appeal filed by the petitioner company with the observations that the Carrier Aircon Ltd., Jaipaur and Carrier Aircon Ltd. Daman be treated as separate dealers for the purpose of assessment. It is submitted that in pursuance to the demand order, the assessing authority with reference to the demand for the year 2001-02 upheld the contention of the petitioner company treating the sales in dispute as inter-state sales not exigible to sales tax in the State of Rajasthan. This order was passed on 5-7-2010. Counsel submits that this fact was brought to the notice of this court, and this court vide order dated 17-10-2011 required the respondent represented by the learned Advocate General Mr.G.S. Bapna to state as to whether the order dated 8-7-2008 passed by the Dy. Commissioner (Appeals), consequent to which the assessment order dated 5-7-2010 has been passed by the Assessing Officer, had been put to challenge by way of revision petition or the said order has attained finality. No response from the learned Advocate General has emanated on the query of this court under its order dated 17-10-2011. Counsel for the petitioner however submits that the order dated 8-7-2008 passed by the Dy. Commissioner (Appeals) has not been put to challenge, nor the consequent order dated 5-7-2010 passed by the Assessing Officer in respect of financial year 2001-02 has been challenged and the said orders have attained finality. In the facts obtaining counsel for the petitioner submits that as the assessment order dated 21-12-2002 as rectified vide order dated 25-4-2004 in respect of petitioner's liability for the financial year 2001-02 has already been modified on 5-7-2010 and the entire demand for the year 2001-02 dropped on the finding that the sales made by the petitioner company from Daman to Rajasthan were inter-state sales not exigible to sales tax in the State of Rajasthan, on parity of reasoning the liability of petitioner company vide order dated 21-12-2002 as modified by order dated 25-4-2004 for the financial year 2000-01 on the fact of it being an inter-state from Daman to Rajasthan (for the period 1-4-2001 to 31-3-2001) and not an intra state sales in Rajasthan should be quashed and set aside. Mr. Sarvesh Jain, learned counsel appearing on behalf of Mr.G.S. Bapna, learned Advocate General, fairly submits that in view of the order dated 8-7-2008 passed by the Dy. Commissioner (Appeals) following which the Assessing Officer has passed the order dated 5-7-2010 in respect of a similar transaction (albeit pertaining to 2001-02) the petitioner company has a case for agitating that a similar view for the financial year 2000-01 be taken. He submits that consequently the State would have no objection in the event the order dated 21-12-2002 and the recovery notice dated 10-2-2003 were to be set aside and the matter remanded back to Assessing Officer for determining the tax liability of the petitioner company for the financial year 2000-01.
(3.) HEARD learned counsel for the parties, and perused the material available on record of writ petition. In view of the submissions by learned counsel for the parties particularly in view of the order dated 8-7-2008 passed by the Dy. Commissioner (Appeals) and the order dated 5-7-2010 by the Assessing Officer on remand in respect of liability for the financial year 2001-02, having attained finality, the impugned order dated 21-12-2002 is quashed and set aside. The matter is remanded to the Assessing Officer for re-determining the tax liability of the petitioner company for the financial year 2000-01 within a period of four weeks from the date of receipt of certified copy of this order. It is further directed that in the event the Assessing Officer were to hold that the transaction of the petitioner for the financial year 2000-01 were inter-state sales from Daman to Rajasthan and not within the State of Rajasthan, (as held for the year 2000-01) and which order has attained finality, the petitioner company would be entitled for the refund of the amount deposited by the petitioner company under the order of this court along with interest. The petitioner company would also be entitled for the applicable interest. The refund of the amount should be made within a period of six weeks from the date of the order of the Assessing Officer. ;