TMI Blog1995 (4) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... is brought from its factories into Calcutta Metropolitan Area in bulk quantity packed in large steel drums. Horlicks which is brought to Calcutta Metropolitan Area for use, sale and consumption within the said area is liable to be taxed under the Act. The applicant usually brings about 25 consignments every month. While importing Horlicks in bulk quantity in steel drums, the applicant submits declaration forms declaring the value of the goods. In declaring the value under section 13 of the Act the applicant makes the declaration of value on the basis of cost of Horlicks per kilogram arrived at the end of the immediate preceding financial year. Since 1983 the applicant has been declaring the value on the basis of cost per kilogram of Horlicks as ascertained at the end of each preceding financial year. The entry tax authority at the check-post never accepts the value declared by the applicant. They determine the saleable value of Horlicks according to their best judgment. The applicant has been paying under protest entry tax levied on the basis of saleable value determined under the best judgment method. Thousands of assessments have been made and the applicant has filed thousands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to know the next date of hearing. The officer's signature was obtained on the order sheet. Being aggrieved by the said order the applicant had filed previously an application in this Tribunal and the case was registered as RN-370 of 1992. The said case was disposed of on September 25, 1992, by directing the respondents to supply to the applicant a copy of the impugned order of assessment and the applicant was allowed a liberty to take proper legal recourse against the impugned order within a period of six months. A copy of the impugned order has since been supplied and the applicant has challenged the impugned order on various grounds. The impugned order has been challenged as arbitrary and without any nexus between value determined under rule 12(2) of the Rules and value disclosed in the cost sheet and if such arbitrary power can be exercised by an Entry Tax Officer under section 17 of the Act read with rule 23 of the Rules, then those provisions are violative of articles 14, 19(1)(g) and 265 of the Constitution. The impugned order has allegedly been passed as the earlier assessments were made through inadvertence. But inadvertence cannot be a continuing process from 1986 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able value appearing from the cost sheet was found by the Entry Tax Officer to be higher than the one arrived at under rule 12 of the Rules. The Act provides for appeal and revision against orders passed by the assessing officer. The vires of section 17 of the Act cannot be challenged as arbitrary or as one providing for unguided and uncanalised power. The value determined in the present case under rule 12 of the Rules has been found to be less than the actual saleable value due to the mis-statement of the applicant in disclosing the value on the basis of cost sheet of the preceding financial year. The demand for short levy has been legally made and the applicant is liable for the levy. 4.. An affidavit-in-reply has been filed by the applicant wherein the applicant has reiterated his case in the main application. In the affidavit-in-reply the applicant has emphasised that the concerned authority computed their own valuation on the basis of their own market survey. The ground of "mis-statement" taken by the respondents in their affidavit-in-opposition has been deliberately taken to explain the illegal action of the Entry Tax Officer under section 17 of the Act read with rule 23 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed by it: Provided that such assessment shall be made after inspection and verification of such goods, but where such goods are not available for inspection and examination by reason of the fact that such goods have been disposed of, concealed or mixed with any other goods, such assessment shall be made, in such manner and within such time as may be prescribed, to the best of the ability of the prescribed authority: Provided further that no penalty shall be imposed under this sub-section except after giving the dealer a reasonable opportunity of being heard." "15. Payment of taxes.-(1) The amount of tax assessed under subsection?(1), sub-section (2) or sub-section (3) of section 14 and the amount of penalty imposed under sub-section (2) or sub-section (3) of that section shall be paid forthwith by the dealer to the prescribed authority and that authority shall, on payment of the assessed amount of tax and the penalty, if any, grant to the dealer a receipt showing the payment of such amount. (2) The receipt granted under sub-section (1) shall contain such particulars in relation to the specified goods as may enable the identification thereof. (3) Every specified g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty than has been adjudged against him in the order appealed from." "29. Power of revision of the prescribed authority.-The prescribed authority may, of its own motion or otherwise, call for and examine the record of any proceeding for the assessment of any tax or imposition of any penalty under this Act where either no appeal has been preferred or any appeal, having been preferred, has been disposed of, for the purpose of satisfying itself as to the correctness, legality or propriety of such assessment or imposition of penalty and may pass such order thereon as it thinks fit: Provided that no assessment of tax or imposition of penalty shall be varied under this section so as to prejudicially affect any person unless such person- (a) has, within a period of two years from the date of such assessment or imposition of penalty, received a notice to show cause why such assessment or penalty shall not be varied, and (b) has been given a reasonable opportunity of making a representation and, if he so desires, of being heard, in his defence." THE RULES "12. Determination of value.-(1) For the purpose of determining value of the goods, where tax under the Act is levied ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of notice for preferring objections and adducing evidence in support thereof. After inspection of such books of accounts and other documents as may be produced by the dealer and after consideration of such submissions and other evidence as maybe made and produced by him, the prescribed authority or the assessing officer shall determine to the best of his judgment the amount of the tax short-levied or erroneously refunded. (2) After such determination of the amount of the tax short-levied or erroneously refunded, the prescribed authority or the assessing officer shall issue a notice in form X demanding payment of the amount of tax short-levied or of the amount erroneously refunded, fixing a date not less than three months from the date of the notice for payment or repayment, as the case may be. Such payment of short levy of tax or repayment of erroneous refund shall be made by challans to the appropriate Government Treasury. "6. Mr. Pradip Ghosh, learned Advocate appearing for the applicant, has assailed the impugned order dated June 24, 1992, of short levy and notice of demand in form X of the same date mainly on three grounds. Mr. Ghosh's first challenge is that the Entry Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Tax Officer in demanding Rs. 50,52,183 on grounds of short levy has sought to frustrate all the pending appeals as the Entry Tax Officer reopened all the assessments and revised his orders. The respondents' case is that the assessments under rule 12(2) of the Rules were made on taking into account the value disclosed in the declaration forms. Though the applicant was directed to produce necessary evidence regarding cost of Horlicks for the year in respect of which entry was caused into the Calcutta metropolitan area, the applicant did not produce evidence regarding cost of Horlicks per kg. for that year. When the Entry Tax Officer found that the actual saleable value on the basis of the applicant's cost sheet was higher than the saleable value determined by him under rule 12(2), he found the assessment and levy short and so he invoked section 17 of the Act. Powers under section 17 of the Act are distinct and independent of the powers and assessment under section 14(1) and (2) of the Act. At this stage we may reproduce a part of the impugned order which is annexure "K". At page 2 the order runs as under: "The dealer thus never produce or declare the value of the Horlicks powder at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea Rules, 1970 and the manner of recovery is also stated therein." Though the impugned order is not expressed in a happy and intelligible manner, it would appear from the tenor of the order that what prompted the Entry Tax Officer to invoke section 17 of the Act and rule 23 of the Rules was loss of Government revenue arising from a difference in the determination of saleable value of Horlicks on a date which should have been given effect from a much earlier date. The Entry Tax Officer has given a chart of the difference of value per kg. from the year 1986-87 to 1990-91 at page 11 of the impugned order (annexure "K"). According to the Entry Tax Officer, tax levied and collected in the instant case has been short levied through inadvertence as there has been a delay in enforcing the saleable value determined by him. Applicant's learned Advocate Mr. Pradip Ghosh has contended that since the applicant has gone in appeal against every assessment, the impugned order which purports to affect all the determinations of saleable value pending before the appellate authority shall have the effect of frustrating all the pending appeals. He has relied upon a Supreme Court decision reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the objection. Against the order of rejection the appellant filed two appeals before the Tribunal. The Tribunal also dismissed the appeals. The Tribunal's view was that in deciding those appeals it would nullify the revisional power vested in the Deputy Commissioner. The appellant filed a writ petition in the Bombay High Court against the order of the Deputy Commissioner and also against the order of the Tribunal. The High Court took the view that it was always open to the Commissioner to interfere in revision with an order prejudicial to the revenue notwithstanding that such order may be already under appeal before the Tribunal. The High Court felt compelled to take this view because in its opinion the statute did not provide any other forum or jurisdiction for protecting the interests of revenue. In the context their Lordships in the Supreme Court observed as under: "It seems to us past question that when the appellate jurisdiction of a superior authority is invoked against an order and that authority is seized of the case, it is inconceivable for a subordinate authority to claim to exercise jurisdiction to revise that very order. The Tribunal is the supreme appellate and rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment relied upon by the applicant's learned Advocate, Mr. Pradip Ghosh, has no application in the present case as the subject-matter of pending appeals and the subject-matter of the impugned order of short levy dated June 24, 1992, are distinct and separate and that there cannot be a merger of the issues involved. Mr. Bhattacharya has drawn our attention to the applicant's memorandum of appeal (annexure "D") wherein the dealer-applicant has challenged the determination of saleable value of Horlicks under rule 12(2) of the Rules on the ground of arbitrariness on ignoring the value declared under rule 12(1) of the Rules. Mr. Bhattacharya's contention is that there is no identity of the subject-matter or issue between the assessment of tax under section 14(1) of the Act and the assessment and levy of short-levied tax under section 17(1) of the Act in the present case. Mr. Bhattacharya has cited decisions reported in [1977] 109 ITR 751 (Cal) (Premchand Sitanath Roy v. Addl. Commissioner of Income-tax), [1978] 111 ITR 231 (Cal) (Singho Mica Mining Co. Ltd. v. Commissioner of Income-tax), [1977] 108 ITR 294 (Ker) (Kelpunj Enterprises v. Commissioner of Income-tax) and also (1993) 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether he at all considered this aspect of the matter or whether there was conscious or deliberate waiver on the part of the Income-tax Officer of the liability of the petitioner to pay interest. The petitioner preferred an appeal before the Appellate Assistant Commissioner and the Appellate Assistant Commissioner passed an order on January 31, 1973, confirming the assessment. On February 22, 1974, the impugned notice was issued by the Additional Commissioner of Income-tax, West Bengal-III. By the said notice the Additional Commissioner of Income-tax, West Bengal-III, invoked his powers under section 263 of the Income-tax Act, 1961 and wanted the assessee to show cause why the assessment order on March 3, 1972, passed by the Income-tax Officer should not be interfered with as he failed to charge interest at the rate of 9 per cent per annum for the period from January 1, 1969 to May 14, 1969. One of the contentions urged by the petitioner was that there being an appeal from the said assessment order and the order of assessment having been confirmed by the Appellate Assistant Commissioner, the Additional Commissioner of Income-tax, West Bengal-III, was not competent or had no jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application or scope to decide any particular item or fact on the appellate or revisional authority, there will be no merger by applying the doctrine of implied decision. In the present case the subject-matter of appeal is the applicant's challenge of determination of saleable value under rule 12(2) of the Rules on ignoring the value declared by him. By the impugned order dated June 24, 1992 the Entry Tax Officer has Here italicised. sought to levy tax under section 17 of the Act as in his view tax has been shortlevied as a result of giving effect to determination of value from a date later to the date from which it should have been given effect. The question whether saleable value determined by the Entry Tax Officer under rule 12(2) of the Rules on a particular date should have been given effect from a prior date is not a question for decision in the pending appeals before the appellate authority. Therefore, there cannot be any question of merger of the impugned order under section 17 of the Act with any order that may be passed in the appeals as the subject-matter for decision in the appeals is not identical with the subject-matter of the impugned order. 9.. The other conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer and it was pending before the Appellate Assistant Commissioner for disposal. The relevant facts in that case were that the assessment year was 1964-65 and the accounting period was the financial year 1963-64. There were credit entries in the accounts of the assessee during the accounting period. In one group the entries added up to Rs. 75,000 and in another to Rs. 20,000. The assessing authority accepted explanation in relation to credit entries of Rs. 75,000 but did not accept explanation regarding the sum of Rs. 20,000. The income of the assessee was ultimately fixed at Rs. 1,68,920 as against the income of Rs. 25,880 returned by the assessee. The assessee appealed before the Appellate Assistant Commissioner. While the appeal was pending, the Commissioner of Income-tax after examining the records of the case was satisfied that the order of the Income-tax Officer was prejudicial to the Revenue. The Commissioner therefore issued notice under section 263 and after hearing the assessee set aside Income-tax Officer's order holding that the Income-tax Officer had not properly investigated the genuineness of the entries of loan. A direction was given to the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal and not in respect of a matter which is separate from the subject-matter of appeal. The Supreme Court while laying down the proposition that it is inconceivable for a subordinate authority to claim to exercise jurisdiction to revise that very order against which appellate jurisdiction has been invoked, has very clearly pointed out that the position appears to be incontrovertible unless the statute plainly provides to the contrary. We may point out here that the power under section 17 of the Act is not a revisional power of the prescribed authority or the assessing authority. The Act provides for revision under section 29 and the revisional power under the said section can be exercised by the prescribed authority which under rule 3 of the Rules is the Director of Entry Taxes or under rule 5 of the Rules by delegation of power, an Additional Director or a Deputy Director. Rule 4 of the Rules speaks of subordination of officers. An Entry Tax Officer cannot be equated with either a Deputy Director or Additional Director of Entry Tax. The impugned assessment order dated June 24, 1992, passed by the Entry Tax Officer under section 17 of the Act read with rule 23 of the Rules cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Advocate is that in the context of the determination of saleable value of Horlicks under rule 12(2) of the Rules, the exercise of powers under section 17 of the Act has to be necessarily in a narrow field. But the Entry Tax Officer in violation of the provisions of section 17 of the Act levied tax on ground of short levy in a manner not provided in the Act. His contention is that the levy must be on grounds of inadvertence, error or misconstruction on the part of the prescribed authority or through mis-statement of the dealer as to the quantity or description or value of such goods or for any other reason. He has argued that the question of short levy through mis-statement of the dealer as to the quantity or description or value of such goods or for any other reason does not arise in the present case as the Entry Tax Officer rejected the value declared by the applicant-dealer and proceeded to determine saleable value under rule 12(2) of the Rules according to his best judgment. In the impugned order though the Entry Tax Officer has used the word "mis-statement" at page 7, his assessment of short levy is ascribed to "inadvertence" as the saleable value determined under rule 12(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cost sheet and (2) also from not including the turnover tax in determination of saleable value. Mr. Ghosh has contended that the Entry Tax Officer while passing the impugned order has quoted from the Supreme Court judgment reported in AIR 1983 SC 586 (H.M.M. Ltd. v. Director of Entry Tax) and has charged the applicant-dealer as not complying with the said judgment. But nowhere in the said judgment there is any indication that the element of turnover tax has to be considered in determining the saleable value. Mr. Ghosh has also contended that in his determination of saleable value under rule 12(2) of the Rules the Entry Tax Officer considered the question of inclusion of turnover tax and on consideration he has deducted the element of turnover tax. After such conscious consideration and deduction of turnover tax the Entry Tax Officer cannot take the ground that the element of turnover tax has not been considered for inclusion through inadvertence. Mr. Ghosh has also pointed out that in the notice dated February 5, 1992, in form IX (annexure "G") under rule 23 of the Rules the Entry Tax Officer has nowhere mentioned that the element of turnover tax has not been considered throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier assessment orders and also to the relevant part of the impugned order which are annexure "B" and annexure "K". The assessment order dated November 2, 1987, states as under: "The above statement are carefully examined. It may be reminded to them that levy of taxation initiated to saleable value under rule 12(2), when value under rule 12(1) is rejected. Besides excise duty has been considered to be integral part of the value including profit. Wherever I have considered sales tax in annexure "B" and the said sales tax amount turn to the sales tax department so also Re. 0.44 per kg. as turnover tax may be considered. As a whole I deduct Re. 0.44 per kg. from Rs. 34.30 the valuation per kg. become Rs. 33.86. Therefore the saleable value becomes Rs. 33.85 per kg. Hence further in all cases the saleable value may be derived without prejudice at Rs. 33.85 per kg. until further hearing. The above judgment is not binding on any assessing officer." It cannot be denied that the order is vague and not exactly intelligible. What is however clear from the order is that the determination of value under rule 12(2) on November 2, 1987, was not based on the cost sheet of Horlicks. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidering cost, turnover tax and filling loss which to be deducted then wholesale price may result valuation at this stage Rs. 40.54. The dealer may declare value at Rs. 40.54 per kg. is effective from tax." The saleable value determined on May 30, 1990, also does not appear to have been made on the basis of cost sheet. On the contrary, it appears that the determination has been made on consideration of the wholesale price of Horlicks in the trade. The next determination was made on July 12, 1990. The order states as under: "Shri S.K. Chandra, a representative of the company turned up and produced related papers to determine value. He submitted the paper consisting of 12 pages. All the terms are taken with consideration for the year 1989 where the enhanced value is effective from April, 1990. As value already determined to Rs. 34.62 till May 29, 1990 and increment of value is further in line from April 1, 1990 by the dealer. Double enhancement of value under rule 12(2) are not allowed. Therefore I do not consider Shri S.K. Chandra and the company be further assessed from April 1, 1990 to May 29, 1990 with enhanced value of Rs. 44.55 per kg. Other related papers are also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... = Rs. 51.33 rounded Rs. 51.35 per kg. The determination of value per kg. Horlicks is done at Rs. 51.35. The revision of rate should take immediate effect at Hosenabad Road Check-post." The determination of saleable value shows that it has not proceeded on the basis of cost sheet alone. It shows that it was done after market survey and also on taking into consideration the wholesale price of Horlicks claimed by the dealer. In the impugned order dated June 24, 1992 the Entry Tax Officer has made yearwise observation about the loss of revenue due to delayed enforcement of fixed up rate. According to him, the assessment of tax for the whole of the accounting year 1986-87 has been made on the previous fixed up rate whereas the revised rate on the basis of cost sheet of 1986-87 is effective from August 20, 1987. For the accounting year 1987-88 his observation is that the assessment of tax for the entire accounting year 1987-88 has been made at previously fixed up rate of Rs. 28.00 and Rs. 33.85 per kg. whereas the revised rate has been given effect from December 20, 1988. Regarding 1988-89 his observation is that assessment of tax for the entire accounting year 1988-89 has been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer was not acceptable. The claim in the impugned order that earlier determinations of saleable value were made on cost sheet basis is not justified. It is true that if the saleable value determined on various dates could be legally given effect from previous dates, then it would result in a difference in total valuation which would ultimately result in a short levy of tax. But the question is whether the omission on the part of the Entry Tax Officer on previous occasions to give effect to the determination of saleable value from a much earlier date can be treated as an omission through inadvertence or error or misconstruction. In the present case the only ground taken is inadvertence. As regards reference to "mis-statement" by the dealer in the impugned order, we may observe that the question of mis-statement does not arise in the present case as the Entry Tax Officer has invariably rejected the value declared by the dealer and has proceeded to determine saleable value under rule 12(2) of the Rules. Applicant's learned Advocate, Mr. Pradip Ghosh has contended that the ground of inadvertence taken in the impugned order is imaginary and it cannot be accepted. Citing decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not suggested that the Income-tax Officer was actuated by some oblique motive. From the mere thought that the method selected by him was such as resulted in lower tax liability to the assessee compared to the liability which would have resulted from the adoption of the other method, it would not follow that the discretion was not exercised in a proper and judicious manner. The taxing authorities exercised quasi-judicial powers and in doing so they must act in a fair and not a partisan manner. Although it is part of their duty to ensure that no tax which is legitimately due from an assessee should remain unrecovered, they must also at the same time not act in a manner as might indicate that the scales are weighted against the assessee. Their Lordships were unable to subscribe to the view that unless those authorities exercise the power in a manner most beneficial to the revenue and consequently most adverse to the assessee, they should be deemed not to have exercised it in a proper and judicious manner. In the case reported in [1971] 82 ITR 367 (SC) (Commissioner of Incometax, West Bengal-II v. Dinesh Chandra H. Shah) the assessee had a share of profit from Mysore Premier Metal F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordships that it is settled by now that mere change of opinion would not be a valid ground for reopening the assessment under section 34(1)(b) of the Act. In the case reported in [1974] 97 ITR 239 (SC) (Income-tax Officer, Incometax-cum-Wealth-tax, Circle II, Hyderabad v. Nawab Mir Barket Ali Khan Bahadur) the assessee had executed three trust deeds in 1950 for the benefit of M, L and J and the minor children of L and J. In those deeds the three ladies M, L and J were described as the wives of the assessee and the assessee was also referred to as the father of minor children. In reply to certain queries it was stated to the Income-tax Officer that D was the only lawfully wedded wife of the assessee and that the assessee had not gone through the essential formalities of a valid marriage under the Mohammedan law with the three ladies M, L and J and that their description as wives in those deeds was incorrect. On this explanation the Income-tax Officer completed the assessment on the assessee for the assessment years 1955-56 to 1958-59 without including income from assets transferred by the assessee for their benefit. There were however two other trust deeds executed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as known to him that it was not possible for the applicant-dealer to produce the audited accounts during the course of the accounting year or immediately at the close of the accounting year. Mr. Ghosh has contended that on a mere change of opinion the Entry Tax Officer cannot make a short levy assessment. Mr. Ghosh has referred to judgments reported in [1972] 85 ITR 467 (Bom) (Commissioner of Income-tax v. Holck Larsen, H.), [1981] 127 ITR 528 (Cal) (Commissioner of Income-tax v. Calcutta Steel Co. Ltd.) and also to [1973] 88 ITR 150 (Cal) [Reform Flour Mills (P.) Ltd. v. Commissioner of Income-tax]. In the context of the facts of the present case the reference to these judgments appears to be without relevance. Mr. Sanjoy Bhattacharya has referred to certain decisions relating to criminal prosecution and double jeopardy and cited [1969] 72 ITR 787 (SC) (Baliah v. T.S. Rangachari, Income-tax Officer), [1970] 76 ITR 177 (Mad.) (Sannana Chetty Sons v. Third Income-tax Officer), [1984] 149 ITR 696 (SC) (Jayappan v. S.K. Perumal, First Income-tax Officer) and AIR 1959 SC 375 (Thomas Dana v. State of Punjab). The question of criminal prosecution or double jeopardy has no relevance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. As regards the ground "for any other reason", we may point out that this ground has not been taken in the impugned order. The respondents have not also sought to justify the impugned assessment order on the ground "for any other reason". The ground "for any other reason" cannot be totally distant and unrelated to the grounds referred immediately before it. The ground "for any other reason" should be analogous to the grounds mentioned immediately before and should be akin to those grounds. The ground which has been repeatedly stated in the impugned order is inadvertence. "Inadvertence" has not been defined in the Act. In Black's Law Dictionary it means heedlessness, lack of attention, want of care, carelessness, failure of a person to pay careful and prudent attention to the progress of a negotiation or a proceeding in court by which his rights may be affected. Used chiefly in statutory and rule enumerations of the grounds on which a judgment or decree may be vacated or set aside: as, "mistake, inadvertence, surprise or excusable neglect". The question is whether the saleable value determined on various dates such as November 2, 1987, December 20, 1988, May 30, 1990, July 12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods on the taxable event which is the entry of the specified goods. The Act and the Rules thereunder provide for present determination of saleable value and assessment of tax on such determination. The Act nowhere provides for giving retrospective effect to a determination of value determined previously as a mode or method for calculating levy or short levy. The Entry Tax Officer who determined saleable value on various dates referred above on prevailing market price was not competent to make those determinations effective from earlier dates. The assessment of tax being relatable to ad valorem, it cannot be given effect from an earlier date as that would run counter to the concept of ad valorem. 20.. In the impugned order the Entry Tax Officer has shown his concern for loss of Government revenue and he appears to have invoked section 17 of the Act in order to justify his course of action to recoup the loss of Government revenue. We have already noted the pre-conditions for application of section 17(1) of the Act. The first pre-condition that there has been a short levy has not been fulfilled in the present case. Substitution or replacement of an earlier determination of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been taken properly and in consequence the impugned assessment order and the notice of demand in form X dated June 24, 1992 have to be quashed. 21.. The last point taken by Mr. Pradip Ghosh, learned advocate for the applicant is that the exercise of power under section 17 of the Act should be proximate in point of time to the original assessment and that as neither section 17 of the Act nor rule 23 of the Rules throws any indication regarding time within which powers under section 17 of the Act can be exercised, the provisions of section 17 of the Act and rule 23 of the Rules are ultra vires the Constitution. Mr. Ghosh's argument is that without any restriction or limitation about time to reopen a case on the ground of short levy, the provisions in section 17 of the Act and rule 23 of the Rules confer an unguided and uncanalised power on the assessing authority to reopen any assessment including an assessment concluded long ago. The reopening can be made at the sweet will of the assessing authority with an oblique motive without any objective ground for such reopening. In such a situation the provision would run counter to the mandate of article 14 of the Constitution and al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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