- (1.) THIS revision filed at the instance of the Sales Tax Officer, Bharatpur against the order of his predecessor dated 20. 12. 1960, is based on the ground that his predecessor did not apply his mind to determine how he arrived at the conclusion that out of the gross turnover of Rs. 47,80,432/7/9, the assessee opposite party was not liable to any tax.
(2.) I have heard the counsel for the parties. A number of preliminary objections were taken by the counsel for the opposite party. In the first place, it is urged that the order sheet indicates that on 3. 6. 1959 the order of assessment was made, whereas the order in the file is dated 20. 12. 1960. A presumption should be drawn that there was no order dated 20. 12. 1960. The order sheet dated 3. 6. 1959 only reads as "case taken up today. Assessment made. " There is no order how this assessment was made, what were the reasons for it, whether any order was written or dictated on that day. There is, however, an order dated 20. 12. 1960, which is being impugned in this revision. The presumption therefore is just the opposite to what the learned counsel for the opposite party wanted me to draw. It is apparent that there was no proper order made or passed on 3. 6. 1959 and the only order passed was dated 20. 12. 1960. The learned counsel for the opposite party further argued that even if the order of the assessing authority could be dated 20. 12. 1960, this Court would not be competent to pass any order in revision due to the provisions of law as existed then. It may be stated that this revision was filed on 19. 7. 1963. Proviso to Sec. 14 as it stood prior to its substitution by Rajasthan Act No. 13 of 1963 with effect from 29. 4. 1963, read as follows: - "provided further that the Board of Revenue shall not revise an order which has been made more than three years previously. " It may also be stated that three years previously were substituted by Rajasthan Act 9 of 1958 with effect from 1. 4. 1958 for two years. The proviso as it stands today reads as under: - "provided further that the Board of Revenue shall not revise an order against which an application for revision has not been made within three years of the passing of such order. " The argument of the learned counsel for the opposite party was that the law applicable in this case was the proviso to the amendment by Act 13 of 1963. It limited the competence of the revising authority to revise the order within 3 years from the date of the order. This court therefore was not competent to revise the order now. The learned counsel for the State replied that if the amending enact- Ment had come into force after 20th Dec, 1963 this proposition would have been correct, but as it came into force on 29-4 1963 when the revision application had not been filed, the new proviso of Sec. 14 as substituted by Act 13 of 1963 would apply in this case. I have given careful consideration to these arguments. The basic rule in this case is given in A. I. R. 1927 Privy Council page 242 (Delhi Cloth & General Mills Ltd. vs. Income-Tax Commissioner, Delhi and another) wherein it is stated "while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Provisions which, if applied retrospectively, would deprive of their existing finality, orders which, when the statute came into force, were final, are provisions which touch existing rights. " Applying this rule, the first question for determination would be whether proviso to Sec. 14 of the Rajasthan Sales Tax Act will be a matter of procedure or whether it touches any right. This proviso, in my opinion, does not touch any right of the parties nor does it create any liability. Power of revision has been given to the Board of Revenue. Previously, it only said that the Board shall not revise any order passed three years earlier. Now it says that it shall not revise an order against which an application for revision has not been made within three years of its passing. This question directly came up for consideration before the Rajasthan High Court in M/s Chaturbhuj Rikhabdass vs. Commissioner E. T. , Rajasthan (R. R. D. 1963 page 209 ). As stated above, the period of revision was extended in 1958 from two years to; three years. An order dated 17. 5. 1956 was revised within three years but after two years. The revision was held valid. Their Lordships observed as follows: - "it may be pointed out that the amendment which was made by sec. 13-A of the Rajasthan Sales Tax (Amendment) Act, 1958, came into force from 1st April, 1958. The period of two years computed from 17th May, 1956 had not expired before the said amendment came into force. Thus when the period of limitation was extended by the amendment Act even before the original period prescribed by Act No. XXIX came to an end, it was open to the Commissioner to revise the order within three years from the date of the original order. " They approvingly quoted the rule laid down by the Andhra Pradesh High Court in Munaga Peraiah vs. The State of Andhra Pradesh, that "where the period of limitation prescribed by law was enlarged before the right of the assessing authority to reassess was barred, it is the amended law that determined the liability of the assessee. " A similar question also came up before the High Court of Punjab in Bhagwan Hotel vs. The Assessing Authority, Rohtak and another (S. T. C. 1964 page 319 ). It was held therein that where before the right to assess an assessee had become barred by time under section 11 (4) of the Punjab General Sales Tax Act, 1948, sec. 5 of the Punjab General Sales Tax (Amendment) Act, 1963, extended the period by another year, the extended period would apply to the assessment of the assessee. In view of these authorities, there is no doubt that in this case when the period of three years as given in the proviso earlier to the amendment had not expired and the amending Act extended this period, it will be the extended period which will determine the period of limitation in deciding revision by the Board. The second objection taken by the learned counsel for the opposite party was that the revision application is not in the prescribed form as there is no verification as required under Rule 33 to 39 of the Rajasthan Sales Tax Rules ; it is also not properly stamped with the court fee of Rs. 25/ -. I have given careful consideration to this argument. Sec. 14 (1) stipulates that the Board of Revenue may on being moved by the assessing authority, call for and examine the records of any proceedings, not being proceedings under the provisos to sub-sec. (3) of Sec. 11, under this Act, and if it considers that any order is illegal or improper or erroneous, it may pass such orders as it thinks fit. Sec. 14 (2) lays down that the Board of Revenue may on application for revision of an order not being proceedings under the provisos to sub-sec. (3) of sec. 11 by a dealer under this Act, made within six months of the date of the order, call for the record of the proceedings in which the order complained against was passed and after examining the record, subject to the provisions of this Act, pass such order not prejudicial to the assessee, as it thinks fit. There is thus a clear distinction between Sec. 14 (1) and 14 (2) Sec. 14 (1) refers to only a move by the Assessing Authority, whereas Sec. 14 (2) refers to an application for revision of an order by a dealer. Rule 40 of the Rajasthan Sales Tax Rules, 1955, says that the provisions of rules 33 to 38 shall apply in respect of applications for revision, procedure for revision and other matters connected therewith in the same manner as they apply to appeals with such modifications as may be necessary. Rules 33 to 38 deal with the way in which an appeal will be presented, notice will be given etc. Rule 39 deals with an application for revision under sub-sec. (2) of sec. 14 to be in form S. T. 9, and further directs that it shall be accompanied by the receipt for the payment of a fee of rupees twenty-five. It is apparent that the applications for revision to which rules 33 to 38 apply are only applications for revisions under Sec. 14 (2 ). There is no application for revision under Sec. 14 (1 ). Rules 33 to 39 therefore are not applicable to applications or memos for revision moved by the assessing authority under Sec. 14 (1) of the Act. The objections of the learned counsel for the opposite party have, therefore, no force, and I hold that in an application made by the assessing authority for moving the Board of Revenue for revising the order no verification is necessary, no stamp is required and it need not be in form S. T. 9. Coming to the merits, the case is very simple. The learned assessing authority who passed the order dated 20. 12. 1960 has only said "one return has been filed for the period under assessment for a turnover of Rs. 47,80,432/7/9. Taxable turnover is nil. This is therefore case of n/a. "
(3.) OBVIOUSLY, under Sec. 10f3), the assessing authority is required to assess the tax by an order in writing. The phrase "by an order in writing" obviously means that the order must prima facie show that he has applied his mind to the reasons which have led him to the conclusion. The order must show that the conclusion has been arrived at after considering the evidence on record that was adduced by the assessee. If the order, such as the present one, does not indicate what reasons led the assessing authority to come to the conclusion, that order cannot be held to be a proper order. The order passed by the assessing authority is, therefore, not a proper order. I, therefore, accept this revision, set aside the order of the assessing authority, and remand the case to the assessing authority for making a fresh order in accordance with the law. .;