V. K. SINGHAL, J. - (1.) ALL these revision petitions are being disposed of by a common order since the questions involved are same. These ten revision petitions have been filed against the orders dated December 24, 1986, raising following three questions of law : 1. Whether, in the facts and circumstances of the case, the order of the Rajasthan Sales Tax Tribunal, Ajmer, dated December 24, 1986 and the order dated April 26, 1990, were justified ? 2. Whether, in the facts and circumstances of the case, there was any error in passing the assessment orders dated November 30, 1979 and August 18, 1981 ? 3. Whether, in the facts and circumstances of the case, any formal defect in the issuance of notice could lead to the quashing of entire liability specially when no prejudice has been caused to the assessee or even claimed to have been caused by the assessee ? Brief facts of the case are that a notice under section 16 (1) (a) of the Rajasthan Sales Tax Act, 1954, was issued by the Commercial Taxes Officer to the Deputy Controller of Stores, Western Railway, Ajmer (hereinafter to be called as "the assessee" ). An order was passed on April 19, 1972, by which liability for registration was fixed on the assessee and it was considered a dealer. The assessee preferred and appeal to the Deputy Commissioner (Appeals) who vide order dated June 29, 1974, allowed the appeal but on an application being moved by the assessing authority under section 17 rejected the appeal. The assessing authority passed an order on September 29, 1975, by which the liability for registration was fixed with effect from April 1, 1964. In revision before the Board of Revenue, the matter was challenged by the assessee and the same was rejected on January 22, 1979. Earlier the matter was also challenged before the Board of Revenue (before the amendment of definition of "business" with retrospective effect) wherein, on December 17, 1976, the assessee was held not liable for registration. Against the order of the Board of Revenue dated January 22, 1979, special appeals were preferred and it was observed by the Board of Revenue that the assessee is liable for registration and the notices were issued for registration on April 19, 1972, which falls within the period of 8 years from April 1, 1964. Therefore, the notices issued for registration were considered within limitation. The assessee was issued notice under section 10 (1) on December 1, 1975, for the assessment years 1964-65 to 1974-75 in response to which, the declarations giving details of the materials sold in auction yearwise were submitted.
(2.) THE assessment was completed on November 30, 1979 and an objection was taken that the sale of scrap is not business and that the goods were sold through auctioneer who had already collected and paid tax and the liability for registration has also not correctly been fixed on the assessee. THE assessing authority, not agreeing with the submissions, created liability for tax and penalty and finalised the assessment. THE assessee preferred appeals before the Deputy Commissioner (Appeals), Ajmer, where a preliminary objection was taken that the assessment has been finalised under section 10 (3) and the notice under section 10 (2) of the Rajasthan Sales Tax Act has not been issued and that the matter falls within the definition of "escaped assessment" under section 12 since no returns were submitted by the assessee. THE appellate authority came to the conclusion that the assessments which have been framed are not in accordance with law and following the decision of this Court in the case of Arbind & Company v. State of Rajasthan [1979] 43 STC 430, the matter was remanded and the assessing authority was directed to issue notice in accordance with law. Thereafter, the assessing authority has given effect to the appellate order on August 18, 1981, by passing order under section 10 (1) (b ). It is mentioned in the assessment order that the notice was issued under section 7 (1) of the Rajasthan Sales Tax Act to furnish the returns which was served on the assessee but no returns were submitted. The liability of tax was created in these assessment orders. The assessee preferred separate appeals in respect of all the years in dispute and it was contended that the assessments should have been finalised in accordance with the provisions of section 12 and not under section 10 (1) (b ). Another contention was also raised that the sales were made through Shri M. H. Shah, auctioneer and tax has already been paid by him. The appellate authority was of the view that the notices issued were under section 7 (1) of the Rajasthan Sales Tax Act and it was only a clerical mistake to mentioned section 10 (1) (b ). These three orders were challenged by way of second appeals before the Rajasthan Sales Tax Tribunal and the Tribunal came to the conclusion that the assessments have been framed on the basis of the notices issued under section 7 (1 ). It was observed that "strangely there was no notice even under section 10 (1) (b) of the Rajasthan Sales Tax Act given to the assessee". The assessment orders were held to be illegal and direction given by the appellate authority to remand the matter was set aside. The assessing authority had not taken any steps to challenge these orders in revision under section 15 of the Rajasthan Sales Tax Act and filed rectification applications before the Sales Tax Tribunal and a point was raised that the observations of the Tribunal in the order dated December 24, 1986, constitute mistake apparent from the record, inasmuch as there is a reference to section 12 as well in the order of the appellate authority. The Tribunal came to the conclusion that the entire matter cannot be considered under the garb of an application under section 17 and accordingly, the rectification applications were dismissed. The revision petitions have been filed in this Court on December 1, 1990. The applications for condonation of delay have also been submitted on the ground that an application for rectification was submitted and the petitioner was hopeful that the application would be accepted and there is a reasonable cause for the delay in filing revision petitions. It was contended that all these orders passed by the Sales Tax Tribunal on December 24, 1986, and April 26, 1990, should be considered in the present revision petitions. An objection was taken by the learned counsel for the assessee that the revisions being time-barred are not maintainable and there is no sufficient cause having been shown, the applications are liable to be dismissed on that ground. It is also submitted that the questions which have been framed do not arise out of the order which has been passed by the Sales Tax Tribunal on April 26, 1990. The submission of the learned counsel for the Revenue is that the assessing authority was bound by the directions which were given by the appellate authority and the order has been passed in compliance thereof. It was only a technical mistake in issuing the notice, in which section 10 (1) (b) was not mentioned. I have considered over the matter. Under the provisions of section 15 of the Rajasthan Sales Tax Act, any person aggrieved by an order made by the Tribunal under section 14b or section 17 may, within 90 days from the date of service of such order (180 days in case of revision by assessing authority), apply to the High Court in the prescribed form accompanied by the prescribed fee, for revision of such order on the ground that the case involves a question of law. The above provisions of law make it clear that there cannot be revision where two orders are challenged. The words "an order" mentioned in the section restrict the scope of jurisdiction of this Court as well as the right of a person aggrieved to file revision. Therefore, I am of the considered view that the revision cannot be filed challenging the contents of two orders of the Rajasthan Sales Tax Tribunal. The provisions of section 15 (1) of the Act were amended by Act No. 17 of 1990 with effect from August, 1990, by which a right was conferred on the aggrieved person to file revision against an order passed under section 17. The Revenue could have filed revision either against the order which was passed under section 14b, i. e. , dated December 24, 1986 or the order dated April 26, 1990, in rectification proceedings. The revision petitions which have challenged both the orders cannot be said to be in accordance with the provisions of sub-section (1) of section 15 of the Act. An option was given to the learned counsel for the Revenue and it was stated that the order dated April 26, 1990, alone is being pressed in the present revision petitions. Before giving decision, it would be relevant to refer to the decision which has been given by this Court in the case of Arbind & Company [1979] 43 STC 430, wherein the decision of the apex Court in the case of Anandji Haridas and Co. (P.) Ltd. v. S. P. Kushare, Sales Tax Officer [1968] 21 STC 326 was relied on in which the apex Court has held that the expression "escapement of assessment" applies equally to cases where a notice was received by an assessee but the same resulted in no assessment at all and to cases where due to any reason no notice was issued to the assessee and on that account there was no assessment of his income. It was also held in that case that where the assessee did not file a return of his turnover for any year and as a consequence thereof there was no assessment, then it was a case where the entire turnover of a dealer has escaped assessment, although it may be on account of mere omission or of deliberate and wilful concealment on the part of the assessee that he did not submit any return, but in any case, it is his default that led to the escapement of the turnover for the year. Following the said decision, it was held by this Court : " In the present case also, whether it was a case of omission or of deliberate concealment on the part of the petitioner, but there is no doubt that he failed to file a return and even if he bona fide though that he was not liable to pay any sales tax and his turnover was not liable to assessment of tax under the Act, yet, it is a case where the whole of the turnover of the petitioner has escaped assessment and section 12 (2) of the Act will apply to such a case. A notice under section 12 (1), therefore, could not have been given to the petitioner after the expiry of 8 years from the end of the relevant assessment year. The notice in the present case includes the period which partly falls beyond 8 years and partly within 8 years and such a composite notice could not have been given by the assessing authority. If the assessing authority for any reason thought that the turnover of the petitioner has escaped assessment, then he should give notice to the petitioner only in respect of the years which fall within the limitation prescribed in sub-section (2) of section 12 of the Act. In this view of the matter, the composite notice is bad in law and, therefore, the same is quashed. However, it is made clear that it will be open to the assessing authority if he so considers proper, and there are circumstances appearing, which may satisfy the requirements of sub-section (1) of section 12, to give a fresh notice to the petitioners for such period which may fall within the limitation prescribed in sub-section (2) of section 12 of the Act. "
(3.) THIS Court in the case of Jaipur Udyog Ltd. v. Commercial Tax Officer [1979] 44 STC 456 has held that for initiating the proceedings under section 12 the notice must be issued within the period prescribed under law and if the assessing authority fails to take proceedings for assessment or reassessment in respect of the period which has already become barred by limitation, then even the directions could not be given by the appellate or revising authority after expiry of limitation to initiate the proceedings. The provisions of section 10 (1) (b) of the Act, as it was then, refers to framing of assessment, in a case where no return is submitted by a dealer under sub-section (1) of section 7 within the time prescribed or if the return submitted by him appears to the assessing authority to be incorrect or incomplete. The assessing authority after making such enquiry as it thinks fit, can assess the tax to the best of his judgment. Prior to the amendment by Act No. 4 of 1967, this power could have been exercised only in respect of "previous year". Thus there were two provisions of law enabling the assessing authority to frame assessment where the return was not submitted; one was under section 10 (1) (b) and another was under section 12. If the proceedings were intended to be initiated under section 10 (1) (b) then the assessment was to be completed for the period up to March 1967, i. e. , the accounting year 1966-67 within a period of one year. If in respect of the period up to 1966-67 the proceedings were not initiated and completed within one year, then there was no right to finalise the assessment under section 10 (1) (b ). In that case the assessment could have been finalised alternatively under section 12 as the returns which were required to be submitted have not been submitted and on account of non-submission of the returns, the assessment will be deemed to have been escaped in view of the law laid down by the apex Court in the case of Anandji Haridas reported in [1968] 21 STC 326 and Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax reported in [1963] 14 STC 976. The provisions of section 12 contemplated initiation of proceedings within a period of 4 years when the proceedings were to be initiated under section 12 till May 2, 1969. This period of limitation was subsequently extended to 8 years. For the purposes of initiating proceedings under section 12, a notice in the prescribed form was a mandatory requirement and if notice was not issued under the said section, then the entire proceedings would be deemed to be void ab initio. Even the consent by the other party would not confer jurisdiction on the assessing authority to frame assessment under section 12 if the proceedings have no validly been initiated. In the present matters, the proceedings were not at all initiated under section 12 and therefore, the matter has to be examined besides the objections which have been raised by the learned counsel for the respondent on the basis of the provisions of section 10 (1) (b) of the Rajasthan Sales Tax Act. As explained above, the assessment under section 10 (1) (b) could have been completed by initiating proceedings under the said section within one year as the provisions of law contemplated completion of assessment in respect of the "previous year" only till the amendment of 1967 and, therefore, the assessments which have been framed up to 1966-67 having not been completed within the stipulated time, the orders passed were not in accordance with law and the Revenue is not entitled to any relief in respect of these assessment years. ;