9911796707
TMI Blog1991 (7) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... section 42 of the Act, the assessment should have been completed by the respondentauthorities latest by December 31, 1980, in relation to the assessment year 1976 and by December 31, 1981, in relation to the assessment year 1977. The petitioner contends that by issuing different orders respondent No. 3, Deputy Commissioner of Sales Tax, Rajkot Division, Rajkot, has extended the period for assessment on untenable and flimsy grounds. Before passing the order, the respondents issued show cause notice to the petitioner and called upon it to make representation against the proposed order of extension of time for assessment. The petitioner has replied to the same and thereafter the orders have been passed by respondent No. 3. The petitioner has challenged the legality and validity of the notices as well as the orders by which the period for assessment is extended. The petitioner prays that these notices and orders be declared as illegal and void. The petitioner has also prayed that if within the period prescribed under section 42 of the Act assessment order could not be passed then there is no assessment under the provisions of the law. Therefore, in such cases the dealer would be entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause Reply Order No. notice ------------------------------------------------------------------------------- 1. A/1, page 38 of A/2, page 40 A/3, page 42, time extended up to the petition dated NovemDecember 31, 1981 in relation to dated November 20, 1980. the year 1976. ber 12, 1980. 2. A/4, page 45 A/6, page 49 A/7, page 51, dated December 21, dated NovemNovember 30, 1981, time extended up to ber 30, 1981. 1981. December 31, 1982, in relation to the years 1976 and 1977. 3. December 3, December 20, A/10, page 57, December 27, 1982, 1982 (not pro1982 (not protime extended up to December 31, duced). duced). 1983 in relation to the assessment orders commencing from January 1, 1972 to December 31, 1979. 4. A/11, page 59 A/12, page 61 A/13, page 62, dated October 27, dated October October 14, 1983 time extended up to Decem7, 1983. 1983. ber 31, 1984 in relation to the years 1976, 1977, 1978, 1979 and 1980. 5. A/5, page 47 A/6, page 49 A/8, page 58, dated November 25, dated NovemNovember 30, 1982, time extended up to December 23, 1981. 1981. ber 31, 1983 in relation to the year 1977. ------------------------------------------------------------------------------- 5.. Section 42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler has been afforded an opportunity to make his submissions. Thereafter the impugned orders have been passed. Therefore, the short question is-are the reasons mentioned by the Commissioner in the impugned order extraneous or irrelevant? Be it noted that this is a proceeding under article 226/227 of the Constitution of India. In this proceedings, ordinarily the High Court would not exercise its extraordinary power for examining the propriety or otherwise of the reasons. On the face of it or after examining the relevant records, if the High Court finds that the reasons given are germane or relevant for the purpose of exercising the powers, the inquiry under article 226/227 of the Constitution of India should come to an end. 8.. It should not be lost sight of the fact that the provisions contained in section 42(1) and proviso thereto and rule 37-A pertain to procedural aspect. By this provision no substantive liability is created. The provision relates to the time within which the assessment should be completed. Rule 37-A specifically provides for certain conditions to be complied with. The underlying object of the provision is to ensure that the Commissioner indicates reasons why i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 46-A were pending. As far as annexure A/10, show cause notice dated December 27, 1982 is concerned, there is reference to show cause notice dated December 3, 1982 and there is also reference to reply dated December 20, 1982 submitted by the dealer. Neither the said show cause notice nor the reply is placed on record. Therefore, it is not clear as to what was the reason assigned in the show cause notice. But from the order it appears that it was not possible to complete the assessment within the time prescribed under section 42(1)(a) of the Act and under section 9(2) of the Central Act. 11.. The learned counsel for the petitioner submitted that the reasons assigned are in fact no reasons and they are ruse for extending the time and the verification is not done is no ground. He further submitted that why the verification has not been completed should have been stated in the order much more so when the dealer submitted in his reply that the verification was already completed. As far as the order dated October 27, 1983, by which the time is extended up to December 31, 1984 is concerned, it is submitted that on overall consideration of the facts and circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mind. It is only a case of error. This is what is explained in the affidavit-in-reply filed by the Deputy Commissioner of Sales Tax. 14.. The contention that on the expiry of the time prescribed in section 42(1)(a), the dealer gets vested right to say that it should not be assessed thereafter has no merits. The Legislature has provided in the same section for period of limitation as well as for the extension of the period of limitation. Once the conditions for passing the order extending the period are satisfied, the period of limitation stands extended. Therefore the contention that the petitioner had got vested right on the expiry of the period of limitation prescribed under section 42(1)(a) has no merits. 15.. In the facts of the case, one may look at the conduct of the dealer. As disclosed in the affidavit-in-reply from July 10, 1981 onwards, the assessment proceedings were adjourned for 15 times. Only on two occasions some work could be done. On all other occasions either the dealer had applied for adjournment or the dealer remained absent. Thus on 13 occasions the matter could not proceed further because the dealer did not co-operate. At any rate taking the charitable vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
