SHREE GANESH STORES OF DEOGHAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This court called for a statement of the case under Section 25(3) of the Bihar Sales Tax Act, 1947 (hereinafter referred to as "the Act") on the undermentioned question : Whether the order of the Commissioner of Commercial Taxes, Bihar, dated 9th December, 1957, holding that the limitation envisaged in the proviso to Section 18(6) of the Bihar Sales 'Tax Act, 1947, has no application to the facts of the present case, is correct in law and has been rightly affirmed by the Tribunal.

(2.) The facts relevant to the issue are that the petitioner, a registered dealer carrying on business of retail sale of cloth in Deoghar, was assessed under the Act to pay sales tax for the second to fourth quarters of 1947-48 and first to fourth quarters for 1948-49 by assessment orders dated the 11th October, 1949. The gross turnover for each quarter was enhanced on certain grounds which is not necessary to be mentioned here. The Assistant Commissioner of Sales Tax, Bihar, to whom appeals were preferred against those assessments allowed the assessee's contention in part in so far as it concerned the assessment of the turnover. The order passed by the Assistant Commissioner was taken up in revision before the Commissioner of Bhagalpur Division, who, by his order dated the 13th November, 1950, while upholding the order of the Assistant Commissioner in other respects, held that the period from the 5th February, 1948, up to the 30th November, 1948, should be treated as the decontrolled period and the rest should be treated as the controlled period. With this direction, he remanded the cases to the lower court. In pursuance of the said order of the Commissioner of Sales Tax, the Superintendent of Sales Tax, Santhal Pargana, reframed the assessment by an order dated the 28th November, 1952. It is not necessary to mention the turnover or the tax which was assessed by the Superintendent of Sales Tax after the remand. Now this order of assessment was challenged in appeal before the Assistant Commissioner of Sales Tax, Bhagalpur, on the ground that it was time-barred. This plea was raised on the ground that the period of limitation for passing an order of assessment, in terms of the proviso to Sub-section (6) of Section 13 of the Act was only two years. Since the impugned order of the Superintendent of Commercial Taxes had been passed beyond two years, from the order of the Commissioner, it was time-barred. The Assistant Commissioner held that the impugned order of the Superintendent of Commercial Taxes had not been passed beyond two years of the order of the Commissioner and consequently, he dismissed the appeal. The dealer then moved the Deputy Commissioner of Sales Tax, Bihar, who by his order dated the 25th January, 1954, observed that if the Commissioner's order was really dated the 13th November, 1950, the second revised assessment order dated the 28th November, 1952, would cease to have any force in the eyes of law. The Commissioner of Sales Tax then suo motu revised the said order dated the 25th January, 1954, of the Deputy Commissioner of Sales Tax, Bihar. He held that the question of limitation as provided in the proviso to Section 13(6) of the Act did not apply to the case in question. The Commissioner observed : In carrying out the directions of the superior tribunal the inferior tribunal does not initiate any proceeding as such, but merely carries out the directions of the superior tribunal. Thusi in cancelling an order of assessment as contrary to law, a superior tribunal does not cancel the original initiation of the proceeding but merely the final order. After remand, the original proceedings are completed avoiding the previous error and in accordance with law as interpreted by the superior tribunal. In the instant case returns were filed and on the basis of the same the proceedings started. The assessment to be made after remand did not require the filing of a fresh return or the calling for another return. Thus, the order of the Divisional Commissioner directing merely the assessment on fresh calculation, has been done in this case, was not a direction to initiate a fresh proceeding for assessment. As such, the limitation envisaged in the proviso to Section 13(6) has no application to remand assessment. The dealer then moved the Board of Revenue, which set aside the aforesaid order of the Commissioner and remanded the case to him by its resolution dated the 12th April, 1959. The Commissioner of Sales Tax then came up in reference before this court which was numbered as M.J.C. No. 491 of 1960. This court by its order dated the 17th August, 1963, passed in the said M.J.C. No. 491 of 1960 reversed the order of the Board as a result of which the matter had to be heard by the Board of Revenue on merits of the case. By this time, however, the Sales Tax Tribunal had come into being and the matter was then heard by the said Tribunal which upheld the order of the Commissioner on merits against which the present reference is now before this court.

(3.) Mr. Kamanugrah Prasad, appearing on behalf of the dealer, submitted that in terms of the proviso to Section 13(6) of the Act, the reassessment made on the 28th November, 1952, was barred. According to Mr. Prasad, even for the purposes of reassessment, the proceedings had to be initiated as required under the said provision of the Act and such initiation under the terms of the said provision has to be within two years from the date of the disposal of the appeal, revision, review or reference directing fresh assessment. Referring to the facts of the instant case, he submitted that admittedly the impugned assessment having been passed on the 28th November, 1952, was beyond two years from the date of the Commissioner's orders, calling upon the Sales Tax Officer to make a fresh assessment. It was, therefore, submitted that the assessment ought to be held as time-barred.