TMI Blog2003 (8) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... business also sells Replenishment licences ( REP licences ). The REP licence was adjudged as goods by decision dated May 1, 1995 of the honourable Supreme Court reported in [1996] 102 STC 106 (Vikas Sales Corporation v. Commissioner of Commercial Taxes). So, the State Government was held to have power to impose tax on sales of REP licences. As per that decision, respondent No. 2, Deputy Commissioner, Commercial Taxes, Dharmatala Circle, passed suo motu order of reopening of deemed assessment under section 11E of the Bengal Finance (Sales Tax) Act, 1941 and directed respondent No. 1, C.T.O., College Street Charge, to take action for realisation of dues for the period of four quarters ending March 31, 1990 to March 31, 1992. Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner for appearing in fresh assessment proceeding of the said periods cannot be declared valid and hence this application challenging the said notice and the proposed fresh assessment proceeding has been filed. 2.. It may be mentioned at the outset that this case has a chequred history. A writ challenging the notice and the proposed reassessment proceeding was filed in the High Court, Calcutta, which was registered as W.P. No. 15315 of 2000. Honourable Justice K.J. Sengupta, by order dated September 26, 2000 disposed of the writ by directing the petitioner to file the application before this Tribunal. Accordingly this application registered as RN-340 of 2000 was filed on November 29, 2000. A bench of this Tribunal at the very outset h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. The respondents filed affidavit-in-opposition both against the prayer for condonation and prayer for amendment. The stand of the respondent is that the order dated October 15, 1996 or December 27, 1996 had never been challenged as transpired from the judgment and order dated July 24, 2001 of honourable High Court and as evident from the prayer in the application. That being so, the original order of reopening is valid and as such every action taken subsequent to those orders by the Revenue Authority cannot be termed as unlawful, since those are passed, as per the scheme of the statute. The petitioner cannot now turn around and open a new case here which was not the one stated before the honourable High Court, which directed this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996 are void ab initio. The final order, i.e., the notices and the proposed assessment proceedings are challenged within time. That final order and the notices are passed and issued in consequence of the earlier orders dated October 15, 1996 and December 27, 1996, which are void. As per the cited decision, learned advocate submits that there is no need for an order of the court to set aside the earlier order, since those are not voidable but void orders. That being the position of law, as per the decision cited, every proceeding in consequence of such an order is also bad and incurably bad. It is his further submission that the earlier orders being void, condition precedent to the exercise of jurisdiction for passing order by issuing impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents made against the said order are not admissible and have no legs to stand. 7.. Admittedly in this case notices culminating in the orders dated October 15, 1996 and December 27, 1996 were duly received by the petitioner. The petitioner against that alleged irregularity in the notice preferred to remain silent and allowed time to pass and ultimately allowed the limitation to run out and sometime after the notice of subsequent proceeding was received, the petitioner challenges the notice of the subsequent proceeding but makes no prayer for setting aside the earlier order since those have become time barred. We are not convinced at all with the argument of the learned advocate for the petitioner that the earlier order dated October 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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