- (1.) THE petitioner is one of the legal representatives of deceased Mool Chand an ex-partner of M/s. Chand Mal Ganga Bishan of Bhujiya Bazar, Bikaner. M/s. Chand Mal Ganga Bishan was a registered dealer assessee under the Rajasthan Sales Tax Act and was carrying on the business in 'bhujiya' and 'paaper' in the city of Bikaner. For the Assessment Years 1972-73 and 1973-74, relating to the period 19-10-1971 to 4-11-1972 and 5-11-1972 to 25-11-1973, the assessee filed its returns of its sales before the Commercial Taxes Officer, Special Circle, Jodhpur, who had the jurisdiction at the relevant time over the assessee as the turn-over of the assessee firm exceeded Rs. 5,00,000/ -. Before the Commercial Taxes Officer, Special Circle, Jodhpur, could proceed with the assessment of the assessee M/s. Chand Mal Ganga Bishan, the Assistant Commercial Taxes Officer (Anti Evasion), Bikaner, seized the books of accounts of the assessee firm and detected that the books of accounts maintained by the assessee are incomplete in respect of purchase of raw-materials and the quantity of the final products. It was, also, detected that certain entries in the books maintained by Hari Ram Chakkiwala with regard to the business of the assessee did not find place in the assessee's books of accounts. THE Assistant Commercial Taxes Officer (Anti Evasion), Bikaner, by its order dated February 6, 1972, then made the 'best Judgment Assessment' on the basis of the materials available on record. THE assessee-dealer preferred an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Bikaner, and the Deputy Commissioner (Appeals), by its order dated June 12, 1974, dismissed the appeal filed by the assessee and maintained the order passed by the Assistant Commercial Taxes Officer (Anti Evasion), Bikaner, challenging the order passed by the Deputy Commissioner (Appeal), Bikaner, with respect to the two assessment years, the assessee-dealer preferred two revision petitions before the Board of Revenue, Rajasthan, Ajmer. In both these revisions, the jurisdiction of the assessing authority, i. e. , the Assistant Commercial Taxes Officer (Anti Evasion), Bikaner, was challenged. Both these revision petitions were dismissed by the Board of Revenue by its order dated 27. 2. 1978. After the rejection of the revision petitions by the Board of Revenue, the assessee moved two reference applications under Section 15 (1) of the Rajasthan Sales Tax Act (for short 'the Act') before the Board of Revenue for referring the questions of law mentioned in the applications for the opinion of the High Court. THE Board of Revenue, by its order dated 27-10-1978, referred the following two questions of law for the opinion of this Court : - " (1 ). Whether on the admitted facts and circumstances when the Commercial Taxes Officer, Special Circle, Jodhpur, exercised his jurisdiction as the Assessing Authority and received the return for the period under dispute, can the Assistant Commercial Taxes Officer (Anti Evasion) assumes the jurisdiction as the Assessing Authority without any order under rule 52 of the Rajasthan Sales Tax Rules? (2)Whether the Assistant Commercial Taxes Officer (Anti Evasion), has any jurisdiction to act as the Assessing Authority when he himself is alleged to have seized the books of accounts and acted as the prosecutor?" THE Board of Revenue refused to refer the other questions of law for the opinion of the High Court, which were raised by the assessee in the reference applications and, therefore, the assessee preferred two reference applications before this Court with the prayer that the Board of Revenue be directed to refer the remaining questions of law mentioned in the applications, also, for the opinion of this Court. THE two reference applications and the two sales tax cases filed by the assessee-dealer were pending before this Court when the Rajasthan Sales Tax (Amendment) Act, 1984, came into force. A Division Bench of this Court, vide its order dated 6-8-1985, treated both the reference applications as revision petitions in view of the amendment made in the Rajasthan Sales Tax Act and by its judgment dated 6-8-1985, allowed the revision petitions by holding as under : - "we are disposed to think that in view of para 2 (ii) of the first notification the A. C. T. O. (Anti Evasion), Bikaner, could not exercise jurisdiction over the dealer-assessee as an assessing authority, as the C. T. O. , Special Circle, Jodhpur, exercised jurisdiction over him, as its turn-over in respect of the relevant accounting years was more than five lacs. It was not canvassed by the learned counsel appearing for the Sales Tax Department that any specific order under rule 52 of the Rules in favour of the A. C. T. O. (Anti Evasion), Bikaner, was passed by the Commissioner. In this view of the matter, the best judgment assessment made by the A. C. T. O. (Anti Evasion), Bikaner, is by an assessing authority, who had no jurisdiction to do so. THE best judgment assessment being without jurisdiction deserves to be set-aside. At this point of time, Mr. Rajendra Mehta, submitted that he does not press the two reference applications under Section 15 (2) of the Act which have been treated as revision petitions. " After the decision of this case by the Division Bench of this Court, the Commercial Taxes Officer, Bikaner Division (Anti Evasion) - an alternative assessing authority, to whom the jurisdiction of the Commercial Taxes Officer, Special Circle, Jodhpur, was transferred-issued notices under Section 10 (4) read with Section 10-B (2) of the Act, to the petitioner and the other legal representatives of late Mool Chand and the other partners of the firm (assessee) on 1-8-1986, asking him to produce the necessary record alongwith the reply on or before 20-8-1986, otherwise the assessment will be made to the best of judgment. THE petitioner, instead of producing the record or filing reply, challenged these two notices by this writ petition.
(2.) IT is contended by the learned counsel for the petitioner that by the order dated 6-8-1975, the Division Bench neither remanded the case to the assessing authority nor gave any direction to the assessing authority to assess the petitioner and, therefore, sub- section (2) of Section 10-B of the Act was not applicable in the present case, which could have removed the bar of limitation for the completion of assessment and as such notices Annexures 1 and 2 deserve to be quashed and set-aside being barred by time. IT is, also, contended by the learned counsel for the petitioner that the finding given by the Division Bench that the C. T. O. , Special Circle, Jodhpur, had the jurisdiction to assess the assessee-dealer, was not required to be given and, therefore, incidental observations made by the Division Bench that the C. T. O. , Special Circle, Jodhpur, had the jurisdiction, cannot be treated as a 'finding' or 'direction' necessary for the disposal of the case. In support of its case, the learned counsel for the petitioner has placed reliance over the judgments of the Supreme Court in the cases of I. T. O. 'a' Ward, Sitapur vs. Murlidhar Bhagwan Das (l)and Rajindra Nath vs. Commissioner of Income Tax, Delhi The learned counsel for the Revenue, on the other hand, has submitted that the proceedings were pending against the assessee-dealer before the assessing authority in pursuance of the returns filed by the assessee-dealer and, therefore, the assessing authority had the jurisdiction to issue notices to the assessee-dealer in view of the pendency of the proceedings so that the assessment may be completed within the period prescribed under Section 10-B of the Act. His further submission is that the case of the petitioner is fully covered and saved by Sub-section (2) of Section 10-B. In support of its case, the learned counsel for the Revenue has placed reliance over the judgment in : Ram Dayal Haribilas vs. Commissioner of Sales Tax, Uttar Pradesh, Lucknow (3) and Dattaram Advertising Private Limited and another vs. the State of Karnataka IT is further submitted by the learned counsel for the Revenue that as the business of the dealer escaped assessment to the tax and, therefore, the assessing authority has jurisdiction to assess the dealer-assessee under Section 12 of the Act, for which no period of limitation has been provided. Lastly, it is contended by the learned counsel for the Revenue that while interpreting the statutes, the provisions should be construed in conformity with the Legislative intent, the scheme of the Act and the public policy behind it, and a purposeful interpretation to effectuate the intention of the Legislature should be given. I have considered the rival submissions made by the learned counsel for the parties. The Division Bench of this Court, while deciding the case of the assessee on 6-8-1985, held that the A. C. T. O. (Anti Evasion), Bikaner, had no jurisdiction over the assessee as the assessing authority because it is only the C. T. O. , Special Circle, Jodhpur, who could have exercised the jurisdiction over him as the turn- over of the assessee in these Accounting Years was more than Rs. 5,00,000/ -. The High Court, white allowing the revision petitions, set-aside the order passed by the A. C. T. O. (Anti Evasion), Bikaner, as well as the consequential orders passed in the appeal by the Deputy Commissioner (Appeals), Bikaner and in the revision petitions by the Board of Revenue, Ajmer, but neither gave any directions to the assessing authority nor it remanded the case to the Assessing Authority to assess the assessee-dealer in accordance with law. The judgment passed by the Division Bench of this Court is, admittedly, not an order of remand. The question, which, therefore, requires consideration in the present case is : whether sub-section (2) of Section 10-B of the Act is applicable in the present case and can save the notices which were issued beyond the time prescribed by law when the order passed by the A. C. T. O. (Anti Evasion), Bikaner, was set-aside by the High Court, but the Court neither remanded the case to the assessing authority to proceed with in accordance with law nor issued any direction to any of the authorities. The Division Bench of this Court, while deciding the earlier revision petitions, held that the A. C. T. O. (Anti Evasion), Bikaner, had no jurisdiction to decide the case and set-aside the order passed by him. There was, therefore, no room for the Division Bench to have remanded the case to the A. C. T. O. (Anti Evasion), Bikaner, to re- assess the dealer-assessee. No direction was, also, given to the C. T. O. , Special Circle, Jodhpur, directing him to re-assess the assessee-dealer. The Division Bench merely quashed the order passed by the A. C. T. O. (Anti Evasion), Bikaner. Before considering the arguments advanced by the learned counsel for the parties, I would first like to refer the cases relied upon by the learned counsel for the parties. In Income Tax Officer,. 'a' Ward, Sitapur vs. Murlidhar (supra), the Supreme Court while considering the second proviso to Section 34 (3) (ii) of the Income Tax Act, 1922, which is identical to Sub-section (2) of Section 10-B of the Act, interpreted the words 'in consequence of the order or to give effect to the finding or direction given by the appellate authority' and held that the interpretation of the words 'finding' and 'direction' in the Second Proviso to Section 34 (3) (ii) means a finding necessary for giving relief in respect of the assessment for the year in question and a direction which the appellate or revisional authority, as the case may be, was empowered to give under the Section mentioned in that proviso. A finding, therefore, could only be that which was necessary for the disposal of the appeal in respect of assessment of that particular year. The Supreme Court, therefore, held that Sub- section (3) (ii) of Section 153 is applicable only in the cases where the assessment, re-assessment or re-computation are made on the assessee in consequence of or to give effect to any finding or direction contained in the order which was directly in question before the authority concerned and a finding could only be that which was necessary for the disposal of the appeal.
(3.) SIMILAR provisions contained in Section 153 (3) (ii) of the Income Tax Act, 1961, came-up for consideration before the Supreme Court in the case of : Rajindra Nath vs. the Commissioner, Income Tax, Delhi (supra ). While considering the expression 'in consequence of the order or to give effect to any finding or direction contained in the order' , the Supreme Court held that the expressions 'finding' and 'direction' in Section 153 (3) (ii) are limited in meaning. A finding given in an appeal, revision or reference, arising out of assessment, must be a finding necessary for the disposal of a particular case and to be a 'necessary finding', it must be directly involved in the disposal of the case and as regards the direction, the Apex Court further observed that it must be an express/direction necessary for the disposal of the case. In the case of Ram Dayal vs. the Commissioner of Sales Tax, Uttar Pradesh, Lucknow, (supra), the Full Bench of Allahabad High Court held that the consequence of the order of the appellate authority setting-aside the assessment made by the assessing authority and sending the case back to him for fresh assessment is that the original assessment proceedings are revived and the assessing authority has to make assessment afresh within the ambit and scope of Section 7 of the Act. This judgment, relied upon by the learned counsel for the Revenue is of no assistance to resolve the controversy as in the present case the Division Bench of this Court held that the A. C. T. O. (Anti Evasion), Bikaner, had no jurisdiction to deal with the matter and set-aside the order passed by him and, therefore, obviously the matter could not have been remitted to him as he had no jurisdiction. The remand can be made only to the authority which has disposed of the matter. The Division Bench though held that the C. T. O. , Special Circle, Jodhpur, had the jurisdiction but did not direct the C. T. O. , Special Circle, Jodhpur, to deal with the case and dispose of the same. In Dattaram Advertising Private Limited vs. the State of Karnataka (supra), on which reliance had been placed by the learned counsel for the Revenue, the Division Bench of Karnataka High Court held that the proceedings to bring the tax turn-over, which has escaped from assessment or proceedings for the re-assessment under Section 10-A of the Act commence with the issuance of the Show Cause Notice as required under Sub-section (1) of Section 12-A of the Act. This judgment is not relevant to resolve the present controversy and is of no assistance to the Revenue. The point in question in the present case was not in issue in that case. ;