TMI Blog2013 (4) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ter obtaining permission as provided for in the proviso to Section 21(2) of the Act and not otherwise - The impugned order is bad in law and cannot be allowed to stand & accordingly quashed - All the three writ petitions succeed and are allowed. - Writ Tax No.-799 of 1993, Writ Tax No. -796 of 1993, Writ Tax No.-801 of 1993 - - - Dated:- 2-4-2013 - Prakash Krishna And Ram Surat Ram (Maurya),JJ. For the Petitioner : Rajesh Kumar,Ram Kishore Gupta For the Respondent : S. C. JUDGMENT All these three petitions were heard together and are being disposed of by a common judgment. Learned counsel for the parties agreed that identical controversy is involved in all these three writ petitions. The facts from Writ Petition (Tax) No. 799 of 1993 are being taken. The petitioner is a registered dealer and was carrying on the business of food-grain etc. in its own account as well as on Commission agency. For the assessment year 1984-85, the assessment was completed by the Sales Tax Officer, Mahoba under the U.P. Sales Tax Act (hereinafter referred to as 'the Act') and under the Central Sales Tax Act. Thereafter, the department initiated proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order has not been set aside in the present case and as such, the respondent could not invoke sub-section (4-A) of Section 21 of the Act. In reply, it was submitted that sub-section (4-A) opens with words if an order of assessment is quashed..................). The words assessment would include reassessment also . Here, the reassessment order has been set aside on 16th January, 1990 for want of service of notice by the Appellate Authority. Therefore, the resort to section 21(4-A) is justified. Considered the respective submissions of the learned counsel for the parties and perused the record. Section 21 of the Act deals with assessment of tax on the turnover not assessed during the year. The said section was amended drastically by U.P. Act No. 8 of 1992. For the sake of convenience, Section 21 is reproduced below:- 21. Assessment of tax on the turnover not assessed during the year.-- (1) If the assessing authority has reason to believe that the whole or any part of the turnover of the dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the copy of the order amending or cancelling the aforesaid certificate or by March 31, 1995, whichever is later:- Provided also that the assessment or re-assessment for the assessment year 1989-90 may be made by March 31, 1995]. (3) Where the notice under sub-section (1) for any assessment year has been served within the period specified in sub-section (2), the order of assessment or re-assessment in pursuance thereof may be made within six months, after the expiration of such period. (4) If an order of assessment is set aside and the case is remanded for re-assessment by any authority under the provisions of this Act or by a competent Court, the order of re-assessment may be made within one year from the date of receipt by the Assessing Authority of the copy of the order remanding the case, or by December 31, 1982, whichever is later. [(4-A) If an order of assessment is quashed on the ground of want of jurisdiction of the assessing authority or any other like ground, by any competent authority or Court, fresh order of assessment may be made by the assessing authority having jurisdiction within one year from the date of receipt by the assessing authority whose orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lawfully vested in it, held such turnover to relate to the assessment of that dealer under this Act, whether for such assessment year or any other assessment year, then nothing contained in this section limiting the time shall apply to assessment or re-assessment whether under this Act or under the Central Sales Tax Act, 1956 of such dealer or such other dealer, relating to such assessment year or such other assessment year, as the case may be. From a reading of the aforesaid provisions it is clear that sub-section (1) of Section 21 of the U.P. Act empowers the assessing authority to assess or re-assess the dealer if he has reason to believe that the whole or any part of the turnover of the dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at the rate lower than that which it is assessable under the U.P. Act. Under sub-section (2) limitation for assessment or re-assessment has been provided. In the main clause it is two years from the end of the assessment year or March, 31, 1998 whichever is later. However, in the first proviso the Commissioner has been empowered to authorize the Assessing Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter involving a question of law having a direct bearing on the assessment or re-assessment in question in respect of the assessee is pending before the High Court or Supreme Court, such period is to be excluded in computing the period of limitation. Under sub-section (7) the bar of limitation has been lifted in certain circumstances. The crux of the matter is whether assessment will include the reassessment in Section 21(4-A) also. Learned counsel for the respondents submits that the words assessment occurring in sub-section 4-A will include reassessment order. The word 'assessment' has not been defined in the U.P. Trade Tax Act. 'Assessment' is a comprehensive word and can denote entirety of the proceedings which are taken with regard to it, and does not mean a final order of assessment alone unless there is something in the context of a particular provision which compels such meaning being attributed to it. In Kalyan Kumar Ray Vs. CIT (1991), 191 ITR 634 the Apex Court has held that 'assessment' is one integrated process involving not only the assessment of total income but also determination of the tax. In Kalawati Devi Harlal Vs. CIT, (1967) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arts of the same section or statute, there is a presumption that the word is used in the same sense throughout. The presumption is, however, a weak one and is readily displaced by the context. It has been said that the more correct statement of the rule is that where the draftsman uses the same word or phrase in similar contexts, he must be presumed to intend it in each place to bear the same meaning . Sri S.P. Kesharwani, learned Addl. Chief Standing Counsel has placed reliance upon decision of the Apex Court in the case of Kalawati Devi (supra), paragraph-14 is particular. The said paragraph is reproduced below: It is quite clear from the authorities cited above that the word .assessment can bear a very comprehensive meaning; it can comprehend the whole procedure for ascertaining and imposing liability upon the tax-payer. Is there then any thing in the context of s. 297 which compels us to give to the expression procedure for the assessment the narrower meaning suggested by the learned counsel for the appellant ? In our view, the answer to this question must be in the negative. It seems to us that s. 297 is meant to provide as far as possible for all contingencies whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay . Reference was made to Additional Commissioner (Legal) and another v. Jyoti Traders and another etc., AIR 1999 SC 526, wherein the proviso to Section 21(2), as inserted by U.P. Act No. 8 of 1991, was up for consideration. The Apex Court was called upon to interpret the proviso to Section 21(2). It repelled the argument of the assessee that the said proviso will not apply in such cases where the period of limitation has already expired. However, the Apex Court was neither called upon nor considered sub-section (4-A) of Section 21. The fate of writ petition depends upon the question as to whether the reassessment order is also included in the phrase if an order of assessment is quashed... . The word assessment has various meanings and shades. It will include reassessment or not, will depend in the context of the particular statute. On a fair reading of sub-section (4A), we are of the opinion that the word 'assessment' has been used in a restricted sense to exclude 'reassessment'. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessing authority had power to make a' best judgment assessment under Section 19(1) of the Act. It was in that context that the Supreme Court held that reassessment was nothing but fresh assessment. The question of limitation did not arise directly or indirectly in that case. That question directly arose in J eewakkhan's case (1970) 3 VKN 51 and no decision taking a view contrary to that taken in J eewakkhan's case. (1970) 3 VKN 51 was brought to our notice. It must, therefore, be held that for initiating reassessment proceedings for the second time, time commences to run from the date of the order of assessment and not from the date of order of reassessment. In this view of the matter, the reassessment proceedings in this case initiated by notice (annexure G) dated 26th December, 1981, must be held to be without jurisdiction. Having regard to the fact, the case on hand, as the order of assessment has not been set aside, the Assessing Authority could not have invoked Section 21(4-A) of the Act. It is not a case of setting aside of assessment order. If the Assessing Authority was of the opinion that the turnover of the dealer has escaped assessment, the proper co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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