- (1.) I have perused the order dated 22.10.2008, passed by the Rajasthan Tax Board, Ajmer (hereinafter 'the Tax Board'). No one has appeared on behalf of the petitioner-assessee (hereinafter 'the assessee'). Heard Mr. Dhananjay Singh, Assistant Commissioner, Circle-G, Jaipur appearing for the petitioner-Department.
(2.) In respect of the assessment year 2003-04, the Assessing Officer after hearing the authorised representative of the assessee one Rajiv Garg on the basis of the record before him passed an order of assessment dated 28.11.2005 visiting the assessee with liability for turnover tax, interest and penalty thereon as the turnover tax had not been deposited within the time prescribed under the Rajasthan Sales Tax Act, 1994 (hereinafter 'the Act of 1994') and the Rules framed thereunder. It appears that in the proceedings before the Assessing Officer, the authorised representative of the assessee did not provide any information with regard to the assessee purportedly having availed the benefit of composition scheme. No proof or document as prescribed by law for availing the composite scheme was filed before the assessing officer. An application under Section 37 of the Act of 1994 for rectification of the assessment order dated 28.11.2005 however came to be filed before the Assessing Officer on 06.01.2006 stating that an application for composition had been filed on 07.04.2003. It was prayed that consequently the order of assessment dated 28.11.2005 be modified and the benefit of composition scheme in respect of turnover for the relevant assessment year be allowed to the assessee. The Assessing Officer found that at the time of assessment proceedings, no option for composition was brought to his notice, nor any proof of requisite payment under the scheme with in the time prescribed filed before him. It was also noted that the purported application for composition filed on 07.04.2003 submitted along with the application for rectification on 06.01.2006 was also not on record, nor otherwise made known to the assessing officer before his passing the order of assessment dated 28.11.2005. The assessing officer in the circumstances concluded the case set up in the rectification application that the application for composition having been earlier filed before it was an afterthought false and hence deserving of rejection. It was also noted that even otherwise the purported application of composition was not accompanied by an affidavit detailing the turnover of previous year, or any proof of deposit of first installment by 31.07/2003 or for that matter the second installment on 31.10.2003. However, the amount of Rs.7,200/- and Rs.4,800/- deposited was adjusted in the escaped turnover tax assessed, interest and penalty thereon. Aside of the lack of merits in the application under Section 37 of the Act of 1994, the Assessing Officer was also of the view that Section 37 of the Act of 1994 has a narrow compass and his jurisdiction limited. The case set up by the assessee in the application entailed a complete reconsideration, review or recall of the order of assessment dated 28.11.2005. This was impermissible in law as the power of rectify under Section 37 of the Act of 1994 could not be used to re-appreciate the assessee's evidence on new facts which were not before the Assessing Officer at the time of the assessment order was passed. The order of Assessing Officer on challenge was upheld by the appellate authority vide its order dated 09.03.2007 and the Tax Board vide its order dated 22.10.2008.
(3.) Considered. The order dated 25.01.2006 passed by the assessing authority dismissing the assessee's application for rectification under Section 37 of the Act of 1994 and holding it to be an afterthought and beyond the ken of his power of rectification is a well considered and able one. No perversity or misdirection in law can be attributed thereto.;