JASRAJ CHOPRA, J. - (1.) THESE two revisions are directed against the judgment of the learned Sales Tax Tribunal, Ajmer, dated 24th October, 1980, whereby the learned Tribunal has held that the assessments of the respondent as regards Rajasthan sales tax and Central sales tax pertaining to the biennial years 1972-74 and 1974-76, are beyond limitation as they are not covered by the provisions of section 12 (2) of the Rajasthan Sales Tax Act.
(2.) THE facts necessary to be noticed for the disposal of these revisions briefly stated are : that the assessee-non-petitioner did not file any returns in respect of the biennial assessment years 1972-74 and 1974-76, either for Rajasthan sales tax or for Central sales tax and hence, provisional assessments were made under section 7-B of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"), after giving a composite notice to the assessee for the assessment years 1971-72 to 1977-78. THEreafter, the assessment orders were passed under section 10 (4) of the Act in respect of these assessment years both for Rajasthan sales tax and Central sales tax. THE assessee preferred appeals against all these assessment orders. THE appeals relating to the biennial assessment years 1972-74 and 1974-76 for Rajasthan sales tax were dismissed by the learned Deputy Commissioner (Appeals), by his order dated 27th September, 1982. THEreafter, the assessee filed revisions before the Board of Revenue for Rajasthan, Ajmer, and those revisions were allowed with the observations that the assessing authority may issue notice under section 12 of the Act to the assessee if it is within limitation vide common order dated 19th December, 1984. However, the appeals relating to the assessment years 1972-74, 1974-76 and 1976-77 under Central sales tax were allowed by the learned Deputy Commissioner (Appeals) on the ground that no valid notice under section 12 of the Act was issued and remanded the case for issuing proper notice following the decision in Arbind & Company v. State of Rajasthan [1979] 43 STC 430 (Raj) vide his orders dated 27th September, 1982 and 11th May, 1983. Following the judgment of the Board of Revenue dated 19th December, 1984, the Assistant Commercial Taxes Officer issued notice under section 12 of the Act in all the cases. THE assessee sent his reply by post in respect of the assessment years 1972-74 and 1974-76, for Rajasthan sales tax raising objections that notices issued were time-barred. THE firm has been dissolved and so, no assessments could be done under section 12 of the Act. However, the assessing authority passed the assessment orders under section 12 of the Act raising the following demands noted against each : ------------------------------------------------------------------------ Assessment RST/ Date of Demand Tribunal's year CST order created Appeal No. in Rs.------------------------------------------------------------------------ 1972-74 RST 23-7-85 8,574 6 1974-76 RST 23-7-85 6,957 9 1970-72 CST 24-4-85 5,744 10 1972-74 CST 1-2-85 33,097 7 1974-76 CST 1-2-85 15,076 8 1976-77 CST 1-5-85 22,979 11 ------------------------------------------------------------------------ THE assessee filed appeals before the learned Deputy Commissioner (Appeals)-I, Jodhpur, and his appeals were dismissed by a common order on 31st January, 1986. THEreafter, the assessee filed second appeals before the learned Tribunal, which cane to be heard by its single Member. It was contended before the Tribunal that these notices under section 12 of the Act are clearly time-barred as they have been issued after the expiry of about 8 years from the commencement of the relevant assessment years. This contention was upheld by the learned single Member of the Tribunal. It was argued that these notices are covered by the proviso to section 12 (2) of the Act. It will be relevant here to excerpt proviso to section 12 (2) of the Act : " 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 sections 13, 14 or 15, or in an order of any competent court. " Mr. Rajesh Balia, the learned counsel appearing for the petitioner has submitted that it is settled law that embargo of limitation of 8 years as provided by section 12 (2) of the Act is not available in cases which are covered by proviso to section 12 (2) of the Act where reassessments are made in consequence of or to give effect to any finding or direction contained in an order under sections 13, 14 or 15, or in an order of any competent court. As reassessments have been made in compliance of the order of the learned single Member of the Board of Revenue under proviso to section 12 (2) of the Act and, therefore, embargo of 8 years should not have been made applicable to such reassessments. In this respect, reliance was placed on a Division Bench decision of this Court in Bhanwarlal Binjaram v. Assistant Commercial Taxes Officer, Jodhpur 1976 WLN (UC) 459, wherein it has been observed that the point in controversy is put beyond doubt by proviso to section 12 (2) which lifts the bar of limitation, in respect of proceedings for reassessment initiated in compliance of, or to give effect to, any finding or direction contained in an order under sections 13, 14 or 15 of the Act or in an order of any competent court. The impugned notices are, therefore, not barred under section 12 (2) of the Act. I entirely agree with Mr. Rajesh Balia, the learned counsel for the petitioner that in view of Bhanwarlal Binjaram's case 1976 WLN (UC) 459, it is now beyond doubt that proviso to sub-section (2) of section 12 of the Act lifts the bar of limitation and any notice which is issued to an assessee, or any proceeding for an assessment or reassessment initiated in compliance of or to give effect to any finding or direction contained in an order under sections 13, 14 or 15, or in an order of any competent court, the bar of limitation of 8 years cannot be pressed by the assessee and, therefore, the contention of Mr. Vineet Kothari, the learned counsel for the non-petitioner that even in cases in which proviso to section 12 (2) of the Act applies, no fresh notice can be given to the assessee beyond a period of 8 years even when such notice is called for in consequence of or to give effect to any finding or direction contained in an order under sections 13, 14 or 15, or in an order of any competent court, cannot be accepted. However, Mr. Vineet Kothari, the learned counsel for the non-petitioner has contended that even if it is held that proviso to section 12 (2) of the Act lifts the bar of limitation of 8 years as provided by section 12 (2) of the Act then too it lifts the bar only in cases where the proviso is applicable and not otherwise. When an appeal or revision is filed before any competent court and an order is passed by that court and if a notice is issued in compliance of those directions then alone, the bar of limitation is lifted and otherwise not. In this case, the learned Board of Revenue has categorically ordered that it will be open to the assessing authority to assess the dealer under section 12 (1) of the Act by giving fresh notices for each of the assessment orders to the petitioner and the notices shall only be given of the periods which may fall within limitation as is prescribed by section 12 (2) of the Act and if it is barred by limitation, he will not assess the assessee for escaping the assessment of the tax. Thus, the direction was clear and categorical that no notice under section 12 (2) of the Act could have been issued to the assessee after the expiry of the period of limitation as prescribed by section 12 (2) of the Act. The assessing authority has exceeded his powers in issuing notice under section 12 (1) of the Act after the expiry of the periods of limitation as regards the assessment years 1972-74 and 1974-76, for Rajasthan sales tax and Central sales tax. That was not the direction of the learned Member of the Board of Revenue and, therefore, the learned Tribunal was perfectly justified in holding that those notices issued for the assessment years 1972-74 and 1974-76, are clearly beyond limitation as they have not been issued in compliance of the orders issued by the learned single Member of the Board of Revenue. Mr. Rajesh Balia, the learned counsel for the petitioner has argued that the learned Tribunal has not properly appreciated the decision in Arbind & Company's case [1979] 43 STC 430 (Raj ). That was a case, where combined notice was issued in respect of some assessment years. That notice was time-barred for some assessment years and it was within limitation for some assessment years and, therefore, it was held that a composite notice as regards the periods some of which are within limitation and some of which are beyond limitation is bad in law. It was observed by a Division Bench of this Court that 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. Mr. Balia, learned counsel for the petitioner has, therefore, contended that the combined notice in respect of assessment years which fall within limitation was not considered to be bad in law by this Division Bench of this Court. It only held that combined notice in respect of assessment years, the assessment of which has become time-barred under section 12 (2) of the Act and as regards the assessment years which are within limitation is bad in law. He has, therefore, submitted that actually the judgment of the learned single Member of the Revenue Board is against the law and that deserves to be set aside. I am not impressed by this reasoning given by Mr. Balia. Mr. Balia has, of course, placed reliance on a decision of this Court in Bhanwarlal Binjaram v. Assistant Commercial Taxes Officer, Jodhpur 1976 WLN (UC) 459, wherein it has been held that there could not be a combined notice under rule 54, but the defect as per the learned Judge will not invalidate the proceedings. Under rule 54, the Assistant Commercial Taxes Officer was required to afford a reasonable opportunity to the assessee to show cause why a penalty under section 16 (1) (c) should not be imposed. That was the whole purpose of the notice dated 18th March, 1976. This opportunity they were given. Thus, the notice though defective, substantially meets the requirements of rule 54. It was further held that the giving of a combined notice under rule 54 was defective. But this defect in form was not one of substance and would not invalidate the proceedings. The Division Bench did not approve of this contention that a combined notice in regard to the assessment years which are within limitation is bad. According to them, such a notice is defective. Actually, the assessee has to be issued a separate notice for each assessment year or for each biennial assessment years, if it is so permitted by law but it should not issue a composite notice about different assessment years. Be that as it may, in spite of the fact that a special appeal against this order of the learned single Member of the Revenue Board was filed but no stay order was issued by the Division Bench of the Revenue Board staying the operation of this order and, therefore, the assessing authority apparently in compliance of this order, issued notices under section 12 (2) of the Act for reassessing the assessee as aforesaid. Appeals were filed against these four assessments pertaining to the biennial years 1972-74 and 1974-76 before the learned Deputy Commissioner (Appeals), Jodhpur but they were dismissed. Against this appellate order of the learned Deputy Commissioner, appeals were filed before the learned Tribunal, which has decided those appeals by a common order as aforesaid.
(3.) THE learned Tribunal has held that these notices issued as regards the assessment of Rajasthan sales tax and Central sales tax pertaining to biennial years 1972-74 and 1974-76, are clearly time-barred as per the proviso to section 12 (2) of the Act as they have been issued after the expiry of 8 years and proviso to section 12 (2) of the Act does not save these notices because the direction of the learned single Member of the Revenue Board was clear and categorical that fresh notices should be issued if the assessment periods are within limitation and if they have become time-barred, it was ordered by it that no notices be issued. Mr. Balia, has submitted that the Division Bench of this Tribunal which was seized of the matter in special appeal filed under section 14 (4a) of the Act challenging the order of the learned single Member of the Revenue Board although did not choose to issue any stay order but when it was seized of the matter, it was not precluded from deciding it on merits. Rather, it was very much in its jurisdiction to decide it and it has decided it accordingly. Simply because an appeal against the order of the learned Member of the Tribunal has not been preferred by the department, it does not mean that these proceedings pending before the Division Bench of the Tribunal have automatically become infructuous. I will deal with this aspect of the matter later on. Mr. Balia has next contended that under the scheme of the Rajasthan Sales Tax Act and Central Sales Tax Act, the liability to pay the tax is incurred when according to the Act in force, the sales become taxable. That liability to the State is independent of any consideration of time and in the absence of any provision restricting action by a time-limit, it can be enforced at any time. What the law does is to prevent harassment of assessees by prescribing a limit of time for its own officers to take action. This limit of time is binding upon the officers but the liability under the charging section can only be said to be unenforceable after the expiry of the period under the law as it stands. In other words, though the liability to pay tax remains it cannot be enforced by the officers administering the tax laws. If the disability is removed or according to a new law, a new time-limit is created retrospectively, there is no reason why the liability should not be treated as still enforceable. The law does not deal with concluded claims or their revival but with the enforcement of a liability to the State which though existing remained to be enforced. Mr. Balia has, therefore, submitted that it is a case of escapement of turnover by the assessee and, therefore, in such cases, the Tribunal should have issued an order under proviso to section 12 (2) of the Act directing the assessing authority to proceed according to law. He should not have directed the assessing authority not to proceed if the assessment has become time-barred. In this respect, Mr. Balia has placed reliance on a decision of their Lordships of the Supreme Court in S. C. Prashar v. Vasantsen [1963] 49 ITR 1 (SC); AIR 1963 SC 1356. This was a case under the Income-tax Act, wherein section 34 of the Act came up for consideration and per majority, their Lordships of the Supreme Court have held that subsequent changes in the period of limitation do not take away an immunity which has been reached under the law as it was previously. In this sense, statutes of limitation have been picturesquely described as "statutes of repose". But it is somewhat inapt to describe section 34 with its many amendments and validating section as a "section of repose". Under that section, there is no repose till the tax is paid or the tax cannot be collected. Their Lordships, therefore, felt that the liability to pay the tax is incurred when according to the Act in force the sales become taxable and that liability to the State is independent of any consideration of time and in the absence of any provision restricting action by a time-limit, it can be enforced at any time. In this case, when the learned single Member of the Revenue Board decided the matter, the proviso to section 12 (2) of the Act was very much in force and still, the Revenue Board chose to give a particular order. It had authority to give an order under proviso to section 12 (2) of the Act but the learned Member of the Revenue Board chose to give a definite and categorical order that if the assessments have become time-barred, no notice be issued about that period even if it results in escapement of the turnover. It had authority to give such an order in the facts and circumstances of that case, and, therefore, this cannot be agitated in revision that the learned single Member of the Revenue Board should have passed a particular order in a particular manner. Even in Arbind & Company's case [1979] 43 STC 430 (Raj), which has been relied on by the learned Tribunal, it has been observed as follows : " 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. " ;