TMI Blog1970 (2) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... 1969-70 on the 11th July, 1969. In it they denied their liability to pay sales tax on the ground that country liquor was not liable to sales tax. In the present writ petition the monthly provisional assessment orders have been challenged on the ground that they are without jurisdiction. The impugned assessment orders purport to have been passed under rule 41(3) of the U.P. Sales Tax Rules. Under that provision if no return is submitted in respect of any quarter or month, as the case may be, within the prescribed period, the Sales Tax Officer can determine the turnover to the best of his judgment and provisionally assess the tax payable for the quarter or the month, as the case may be. According to the learned Standing Counsel, the impugned assessment order has been passed under section 18(2), U.P. Sales Tax Act. Section 18 is headed as "assessment of reconstituted or new firms and change of partnership". Subsection (1) of section 18 deals with the situation where the dealer discontinues the business during the course of assessment year. In that event he is required to file a return within fifteen days from the date of such discontinuance and within the same period give notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of an assessment year' means after the first day of the assessment year. Even if a business is commenced on the 1st of April it is a business commenced in the course of the assessment year beginning with that date. The assessment year began at the first moment of the 1st of April and even if the business commenced with that moment it would be a business commenced in the course of that assessment year." This view is fortified by the meaning of the word "during" in the Shorter Oxford English Dictionary, Volume I, at page 574. There this expression has been defined to mean, "throughout the whole continuance of". Thus, the entire year without excluding any point of time, would be the relevant period. In Words and Phrases, Permanent Edition, Volume 13, at page 682, it has been stated that the word "during" meant to designate time for the performance of an act as during a certain term of court would be an apt expression of an intention to include the whole term. It has also been said there that "during" is defined as "throughout the continuance of". It is, thus, evident that during the course of an assessment year would mean the whole of that year. If the business is comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year, or, at the option of the dealer, for a longer period, but not exceeding three years at a time. So a dealer has the option for registration for a longer period, say for three years. Take the case of a dealer who soon after registration for three years, starts trading in a new commodity, like country liquor, by obtaining an annual licence for a particular year. If the contention raised on behalf of the department is accepted, such a dealer will have to apply for registration again in view of clause (d). His existing registration for three years would not suffice. Section 8-A of the Sales Tax Act does not contemplate that a dealer should be registered more than once for the same period of time. If a dealer opens a branch of his business at another place, and conducts business there under an annual licence, according to the case of the department, he would be treated as commencing business at that place during that assessment year. On that basis he would be liable to be assessed by the Sales Tax Officer of that place. But if the principal place of business of the dealer is elsewhere, that cannot be. Rule 6(b) of the Sales Tax Rules provides that if a dealer carries on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it cannot be treated to have commenced afresh in the same or next year on renewal or a fresh grant. Section 18(2) will not apply to those existing dealers who do not fall within the explanation to section 18(1), i. e. who do not transfer or partition the business or whose firm is not dissolved or reconstituted. In our opinion, the Sales Tax Act contemplates that a person who sets up business for the first time would be governed by section 18(2) for the first assessment year; subsequently, he would be dealt with under section 7. He will be entitled to file quarterly returns and be liable to be taxed at the end of each quarter and not before. The fact that a particular trade is being carried on under a licence granted afresh each year, is not decisive to bring the case within the purview of section 18(2). For the revenue, Mr. Sapru urged that in the present case the petitioners have given no facts to indicate that they were pre-existing dealers. They have not even stated as to when were they registered under section (sic) U.P. Sales Tax Act. Even so, the infirmity in the assessment orders would not stand cured. Rule 41(3) entitles the Sales Tax Officer to make an assessment to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
