TMI Blog1989 (3) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (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. 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued under section 12(1) of the Act, the learned single Member of the Tribunal has held that these assessments are time-barred as they are not covered by proviso to section 12(2) of the Act as notices have been issued beyond the period of 8 years and the bar of limitation has not been lifted in this case because the learned single Member of the Revenue Board did not direct that the assessing authority would issue notices under section 12(1) of the Act, even if the assessments have become time-barred. Mr. Balia has contended that this decision of the learned single Member of the Tribunal has been modified by the Division Bench of the Tribunal vide its order dated 19th October, 1987. It will be useful here to quote the operative portion of the order dated 19th October, 1987, passed by the Division Bench of the Tribunal: "*Vyavahari ki oar se yis prakaran ki sunvayi ke samay bhi koi sakshya prastut nahi kiye hai jinse vastusyithi ka patha lag sakhe. Vigatit form ka anubandh patra, Registrar of forms ko dee gayi soochna ya anya koyi sakshya aadi bhi prastut nahi kiya gaye hain. Kewal Vakkalatnama jo dinank 29-4-86 ko prastut kiya gaya hai usme, Mohammad Ramzan, bootpurva sajyadar vig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before the learned Division Bench of the Tribunal have not become infructuous. Actually, the proceedings pending before the Division Bench of the Tribunal became infructuous in view of the decision of the learned single Member of the Tribunal given in that appeal which finally determined the controversy between the parties and so, actually it should have held that the appeal has become infructuous. Today, the situation is: neither the assessments made under section 10(4) are in force nor the assessments made under section 12(2) of the Act in pursuance of the directions given by the learned single Member of the Tribunal are in force and hence, if any direction is issued to give a fresh notice, that will amount to a direction to give notice beyond the period of limitation, which should normally not be done because what has been challenged before me is the correctness of the order of the learned single Member of the Tribunal holding that the assessments relating to the financial years 1972-74 and 1974-76 for Rajasthan sales tax and Central sales tax as time-barred. When I have held that this finding of the learned single Member of the Tribunal is not incorrect then the request for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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