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TMI Blog1996 (8) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessment year 1974-75. 2.. A brief narrative of the facts which will suffice for the disposal of the points raised before us is in order here. The respondent-company is a public limited company which was assessed to tax by the petitioner, Commercial Taxes Officer, Special Circle-I, Jaipur, for the years 1974-75 and 1975-76 by his order dated September 29, 1982. Since the period of 5 years during which the assessment could be made had expired before the date on which the assessment order was passed the petitioner did write to the Commissioner, Commercial Taxes, Jaipur, requesting that the extension of time be granted so that he could pass the assessment orders beyond the period of 5 years. This extension could be granted by the Commissioner for a period not exceeding 6 months in view of the provisions contained in the second proviso to clause (iv) of sub-section (1) of section 10-B of the Act. This section 10-B was inserted in the Act by the Rajasthan Act No. 4 of 1979 and came into force with effect from April 7, 1979. Before this provision was inserted the assessment order could be made even after the expiry of a period of 5 years. This was for the first time that a ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not been traversed by the department. It can thus be assumed that a common extension order was passed in the cyclostyled form without giving an opportunity of hearing to the assessee. Admittedly, it was not communicated to the assessee. It may also be assumed that it did not contain necessary facts and details which persuaded the learned Commissioner for the (grant of) extension of limitation. Thus this order also suffers from the aforesaid infirmities." 3.. Here we are concerned with the revision petitions filed by the respondent-company. The Tax Board accepted the appeals on the following grounds: (i) that the extension of time for a further period of 6 months was given by the Commissioner without the application of his mind ; (ii) that no opportunity of hearing was given to the respondent-company before the order of extension was made; (iii) that the correct and complete name of the respondent-company was not mentioned in the order whereby the time was extended; and (iv) that the order of extension was not communicated to the respondentcompany. 4.. Hence the appeals were accepted and the orders of the lower authorities set aside. The petitioner, aggrieved as he was by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the transaction; (iv) in cases falling under section 10-C-after the expiry of two years from the date of receipt of application from the dealer: Provided that assessments pending on the date of commencement of the Rajasthan Sales Tax (Amendment) Act, 1979 shall be completed within one year from the date of such commencement or within the period specified in clause (iii) or clause (iv) as the case may be, whichever is later: Provided further that the Commissioner may, for reasons to be recorded in writing extend in any particular case, the period specified in this sub-section by a period not exceeding six months. (2) Notwithstanding anything contained in sub-section (1),- (i) where such assessment is made in consequence of or to give effect to, any order of an appellate or revisional authority or reference to the High Court or of a competent court, it shall be completed within two years of the communication of such order, to the assessing authority and all such assessments pending on the date of commencement of the Rajasthan Sales Tax (Amendment) Act, 1979 shall be completed within one year from the date of such commencement or within two years from the date of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der was not communicated to it. No reasons were recorded by the Commissioner justifying the extension of time. In view of these facts the learned counsel for the respondent-company has placed his reliance upon the decision in Commercial Taxes Officer v. Delhi Cloth & General Mills Ltd. [1993] 91 STC 332 (Raj). In that case also the time was extended under section 10-B of the Act by the Additional Commissioner, Commercial Taxes, without hearing the assessee. Thereafter section 10-BB of the Act appeared on the scene. Shri J.N. Sharma who appeared in that case before the High Court raised two objections. The first objection was that section 10-BB could not validate the defect with retrospective effect in the order passed under section 10-B of the Act. The second objection was that section 10-BB was inconsequential in so far as the order passed under section 10-B was not in the name of the assessee. While dealing with the first objection his Lordships V.K. Singhal, J., held at page 333 of the report thus: "After hearing both the learned counsel for the parties, I am of the view that the provisions of section 10-BB have validated the orders which have been passed by the assessing auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial engineering has to subserve the ends of justice and in that capacity it has to break free from the stranglehold of technicalities and procedural superfluities. We have come up across nothing even on facts or in law which may justify the conclusion that any prejudice was caused on any ground whatever to the respondent-company. It may be mentioned here that the impugned judgment was given by the Tax Board on March 12, 1987 whereas section 10-BB was inserted in 1990 with retrospective effect from September 13, 1979. The defect or defects, if any, Commissioner's order of extension dated March 27, 1982 suffered from was or were cured by section 10-BB of the Act. Thus all the four grounds mentioned above are found rootless. 8.1. The learned counsel for the respondent-company has pressed into service certain authorities in support of the contention that the order of the Commissioner dated March 27, 1982 was bad in law inasmuch as it was in violation of principles of natural justice. The first such authority is A.K. Kraipak v. Union of India AIR 1970 SC 150. This decision of the apex Court revolved round the examination of the validity of the constitution of the special selection bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n element of fairness. It was held that the procedure to be followed must be just, fair and reasonable and not unjust, arbitrary and fanciful. Anything which is freakish and bizarre is to be ruled out of consideration. In the case in hand the period of five years during which the assessment was to have been made was extended by a period of six months by the Commissioner without giving notice to the respondent-company. Rights and obligations of the respondent-company thus were not in any way whatever dealt with or adjudicated upon by the Commissioner. 8.3. The decision in Ajantha Industries v. Central Board of Direct Taxes [1976] 102 ITR 281 (SC); AIR 1976 SC 437, arose from a failure on the part of the Commissioner to communicate reasons to the assessee for the transfer of his case before the order of transfer was made. Section 127(1) of the Incometax Act, 1961 made it obligatory for the Commissioner to give to the assessee a reasonable opportunity of being heard and to record his reasons for the transfer of his case from one Income-tax Officer to another Income-tax Officer. Thus this section 127(1) contained a mandate which was to be followed by the Commissioner. Since no prior n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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