- (1.) THE petitioner M/s Rajasthan Felts Manufacturing Com-pany is a partnership firm engaged in the business of manufacturing woollen felts etc. It is a registered dealer under the Rajasthan Sales-tax Act and Central Saies-tax Act.
(2.) FOR the assessment year 1968-69, the petitioner firm filed returns claiming exemption from sales-tax on the sale of woollen felts. The Sales-tax Officer, by his assessment order Ex 1 dated November 3, 1969, allowed the exemption and raised no demands. The exemption was sought on the ground that woollen felts manufactured and sold by it was woollen fabric and was subj ct to additional excise duty on and from August 25, 1965 and as such levy of sale-tax was not attracted to it The Sales-tax Officer held that the woollen felts prouced by the petitioner was woollen fabric and was a declared item order see 14 of the Central Sales-tax Act. It is urged that other manufactures like that of the petitioner were also exempt from payment of sales-tax and in the case of Messr's S. Zoraster and Company, Jaipur, the Additional Commis-sioner, Commercial Taxes, Rajasthan, Jaipur, determined the question in case No. 23 (56) M/st/156 vide judgment dated November 22, 1s66 that the woollen fabrics were subject to levy of additional excise duty under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the woollen felts manufactured and fold by Messrs S. Zoraster and Company was covered by entry 18 of the Schedule appended to the Rajasthan Sales-tax Act, 1954 and on the basis if this judgment, Messrs. S. Zoraster and Company and the other similar woollen felt manufacturers were being treated as exemot from payment of sales-tax both under the Rajasthan Sales tax Act and the Central Sales-tax Act. That Messrs. S. Zoraster and Company, dealing in similar products as that of the petitioner, filed a writ petition before the Division Bench (No. 1163 of 1972) of this Court alleging that the woollen felt manufactured by them was not woollen fabrics and that the Central Excise Authorities were not entitled to charge any excise duty on the same. The Division Bench of this Court presided over by the Chief Justice, accepted the writ petition vide judgment dated April 22, 1976 and held that woollen felts are not fabrics ana not liable to additional excise duty. That by a notice dated July 30, 1976, the petitioner firm was asked to show cause why the assessment order dated November 3, 1969 for the assessment year 1968 69 in respect of woollen felts sold and exempted by the a sessing authority treating them to be woollen fabrics, should not be re-opened because the Rajasthan High Court, vide its order dated April 22, 1976, held in the writ petition M/s. S. Zoraster and Company vs. Union of India that woollen felts are not woollen fabrics. The next date fixed by the assessing authority for submitting the reply was August 20, 1976. The petitioner filed a reply to this notice (Ex. 2) on August 19, 1976 and contended that the case cannot be reopened as exemption was granted after due consideration and proper application of mind Thereafter, the petitioner also moved the State Government by making representations. The assessing authority, after receiving the reply of the petitioner on August 19, 1976 (Ex. 2), sat tight over the matter and though a period of one year has elapsed, it did not decide this application. The petitioner, apprehending that the assessing authority was not prepared to drop the proceedings or withdraw the notice and was bent upon reopening the assessment indicated on the notice, has approached this Court. The contention of the petitioner is that the assessing autority had no jurisdiction to issue the impugned notice as all the material facts were placed before the assessing authority and he, having exempted the turn over, could not reopen 'he assessment in exercise of his power under sec. 12 of the Rajasthan Sales-tax Act (hereinafter to be referred as "the Rajasthan Act") merely because he has come to hold a different opinion or because the High Court of Rajasthan has held that woollen felt is not woollen fabric The learned counsel maintains that a mere change of opinion by the authorities cannot clothe them with the power to reopen the assessment once made. In support of the above contention, the learned counsel has placed reliance on M/s. National Clinic vs. Assistant Commercial Taxes Officer, Sri Ganganagar (1) M/s. Sahachari Udyog Mandir, Falna, District Pali vs. State of Rajasthan (2) and M/s. Bhikkilal Chhotey Lal vs. State of Rajasthan (3 ). It was also urged that the assessing authority did not have the jurisdiction under section 12 of the Rajasthan Act to issue notices because it had no reason to believe that the sale was underassessed and such under-assessment has occurred by reason of either omission or failure on the part of the assessee to make a return to clearly disclose the sale or omission or failure on the part of the assessee to disclose fully and truely all material facts necessary for its assessment. As both these conditions are conditions precedent to be satisfied before the assessing authority can have jurisdiction to issue a notice for reassessment. In the absence of the same, notices issued are without jurisdiction. The assessee had clearly indicated the the entire turn over in the return filed by it, and the assessing authority, after taking into consideration all the material on record, granted exemption and held that the sale regarding the woollen felts was free from tax. The learned counsel urged that sec. 34 of the Income-tax Act has provided the patner for, the re assessment machinery in the sales-fax statute as well. The finality of the assessment cannot be lightly disturbed. The Legislature intended that the assessee may not be put to unnecessary harassment In interpreting sec. 12 of, the Rajasthan Act, due consideration must be given to the language employed therein. Sec 12 of the Rajasthan Act postulates that there should be reason for holding that the business of a dealer has escaped assessment to tax. The existerce of a reason, that is required to be there, should be rerorded in the notices and further it should appear to the authority that the business has escaped assessment. The belief about the escapement of the business from tax must be that of an honest and reasonable person and such belief should be based: upon reasonable grounds. This clearly implies that mere change of opinion will not be enough to initiate an action Simply because the High Court or the Supreme Court he d that woollen felt is not woollen fabric, the assessment cannot be reopened, because it is nothing but a change of opinion and mere change of opinion is not sufficient to initiate an action under sec. 12 of the Rajasthan Act. because in the same nature of things, that cannot be said to be a reasonable thing to do. Now, the question, which needs determination, is whether, in view of the circumstances of the case, and particularly the manner in which, and keeping in view the decision of the Additional Commercial Taxes Officer, Rajasthan, Jaipur, after due consideration, the assessing authority in its order dated November 3, 1969, held that the assessee was liable to exemption on the turn over of woollen felts, the learned Assessing authority has jurisdiction to issue fresh notices under sec. 12 of the Rajasthan Act and has jurisdiction to determine the dispute again.
(3.) MR. D S. Shishodia, appearing on behalf of the State, has urged that the decision in M/s. National Clinic vs. Assistant Commercial Taxes Officer, Sri Ganganagar (!) turned up on the interpretation of sec. 34 of the Income-tax Act and the other cases reported in M/s Sahachari Udyog Mandir, Falna vs. State of Raja than (2) and M/s Bhikkilal Chhotey Lal vs. State of Rajasthan (3) (supra) relied upon by the petitioner, are based on the decision of that case. As the case of M/s. National Clinic vs. Assistant Commercial Taxes Officer, Sri Ganganagar (1) was held to be not laying dwon the good law in view of the other Supreme Court decisions by a Division Bench of this Court in M/s Akbarali Amanatali vs. Assistant Commercial Taxes Officer (4) 1976 Weekly Law Notes 815 the cases relied upon by the petitioner, cannot be of much avail to him. The question whether woollen felt is woollen fabric or not stands conclusively determined by the decision of their Lordships of the Supreme Court in Union of India vs. Gujarat Woollen Felt Mills (5 ). The decision of this Court in S. Zoraster & Co. vs. State of Rajasthan was based on the decision of the Gujarat High Court in Union of India vs. Gujarat Woollen Felt Mills (5) which was upheld by the Supreme Court in the above noted decision and it was held that: - "non-woven felts manufactured from woollen fibres by machine pressing of raw wool waste, which were neither sheets nor fabrics and utilised for the purpose of filtration in heavy industries, are not 'woolen fabrics' within the meaning of Entry 21 in Schedule 1 to the Act, read as a whole. " Thus indeed, there remains no dispute that woollen felt manufactured by the petitioner does not fall in the list of exempted goods from slaes-tax provided in the Central Sales-tax Act and the Rajasthan Sales-tax Act. The scheme of section 34 of the Income tax Act which is analogous to section 147 of the Income-tax Act, 1961, is entirely different. Under section 34 of the Income-tax Act, 1922, the Income-tax Officer could have reason to believe that the income chargeable to tax has escaped assessment for the relevant year or has been under-assessed or assessed at too low a rate etc. The words "reasons to believe" imposoe a condition to the exercise of the power to make re assessment under section 34 of the Income tax Act, 1922. Unlike section 34 of the Income-tax Act, section 12 (1) of the Rajasthan Act uses the words "if for any reason, the whole or any part of any business of the dealer has escaped assessment to tax or has been assessed at too low a rate in any year etc. " The words "for any reason" appearing in section 12 (1) of the Rajasthan Act are wide enough and the powers of Commercial Taxes Officer under the section are not circumscribed by any conditions. In Maharadhiraja Sir Kameshwar Singh vs. State of Bihar (6) the words of section 26 of the Bihar Agricultural Income-tax Act (7 of 1938), which are analogus to the words appearing in sec. 12 (1) of the Rajasthan Act, came up for interpretation. Section 26 of the Bihar Agricultural Income-tax Act. as quoted in Kameshwar Singh's case (6) (supra) and section 12 (1) of the Rajasthan Act read as under: - "if for any reason any agricultural income chargeable to agricultural income-tax had escaped assessment for any financial year. . . . . . . . . . the Agricultural Income-tax Officer. . . . . . . . . . . . . . . . . . . . may proceed to assess. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . such income. . . . . . . . . . . . . . . . . . " "12 (1) Assessment of tax and levy exemption fee or registration fee incorrectly assessed. If for the reason the whole or any part of the business of a dealer has escaped assessment to the tax, or if the registration fee or exemption fee has escaped levy or has been assessed at too low a rate in any year, the assessing authority, may serve on the dealer liable to pay the tax in respect of such business or such registration fee or exemption fee a notice in the prescribed form and may proceed to assess or reassess the amount of the tax or levy the correct amount of registration fee or exemption fee from such dealer. Provided that if a Deputy Commissioner (Administration) has reason to believe that the whole or any part of the business of a dealer has escaped assessment to tax or has been under assessed or has been assessed at too low a rate, he may at any time subject to the time-limit specified in sub-section (2), either direct the assessing authority to assess or reassess the amount of tax or himself proceed to asses or reassess the tax. Explanation- Nothing in this section shall be deemed to prevent the assessing authority from making an assessment to the best of his judgment. (2) No notice under sub-section (1) shall be issued in respect of any business, registration fee or exemption fee for any year after the expiry of eight years from the end of the relevant assessment year: Provided that nothing contained in this sub-section shall apply to any assessment or reassessment made in consequence of or to give effect to, any finding or direction contained in an order under section 13, 14 or 15 in an order of any competent court. Explanation- Where the assessment proceedings relating to any dealer remain stayed under the order of any competent court, the period during which the proceedings remain so stayed shall be excluded in computing the period of limitation for assessment or reassessment provided under this sub-section. " Their Lordships of the Supreme Court, while interpreting the words "any reason" appearing in that Act, observed that the use of words "any reason which are of wide import, dispenses with those conditions by which section 34 of the Indian Income-tax Act is circumscribed. Placing reliance on the same case, a Division Bench of this Court in M/s Bhanwarlal Binjaram vs. Assistant Commercial Taxes Officer, Jodhpur (7)- l976 Weekly Law Notes (UC) 459, presided over by the present Chief Justice, held that the words "any reason" appearing in section 12 (1) of the Rajasthan Act are of wide import and the scheme of the Income-tax Act is entirely different. In State Bank of India vs. Shri N. Sundara Money (8) the words "any reason" appearing in sec. 2 (oo) of the Industrial Disputes Act, 1947, came up for interpretation and their Lord-ships of the Supreme Court observed that "for any reason whatsoever very Wide and almost admitting of no exception. " ;