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TMI Blog2015 (7) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under sub‐section (12) of Section 32 of the Act. 4. The learned Single Judge has relegated the appellants to the alternate forum. Feeling aggrieved, they are before us. 5. We heard the learned counsel for the appellants and also the learned Additional Advocate General for the State. 6. The learned counsel for the appellants would assail the judgment of the learned Single Judge pointing out that the learned Single Judge was in error in finding that the issues, which are raised, can be taken up before the alternate forum. He points out that by virtue of the notification issued under sub‐section (12) of Section 32 of the Act, the Government has extended the period of limitation for completing the assessments. According to him, the issue relating to the validity of the notification cannot be canvassed before the alternate forum. Therefore, the learned Single Judge was clearly in error in relegating the appellants to the alternate forum, as no relief could be obtained in the alternate forum. The other issue, which is primarily raised in the writ petitions, relates to the rate at which the taxes are to be imposed on the products of the appellants. 7. Learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Commercial Tax, Haridwar Division, Haridwar is being filed herewith and marked as Annexure No.1 to this affidavit. 4. That the Commissioner, Commercial Tax, Uttarakhand vide her letter dated 06.02.2013 and 07.02.2013 had also requested to the Principal Secretary, Finance, Government of Uttarakhand that the cases pertains to the Assessment Year 2008‐ 09 have been decided till 31.11.2012 and 90392 cases pertains to the Assessment Year 2009‐10 were pending as on 01.12.2012, which cannot be decided till 31.03.2013. Furthermore due to waving off the check post of Commercial Tax from 01.03.2013 and also due to shortage of Officers, the cases pertains to the Financial Year 2009‐10 cannot be decided within prescribed time, therefore, the same may be extended for one year. The copy of letter dated 06.02.2013 and 07.02.2013 submitted by the Commissioner, Commercial Tax, Uttarakhand are being filed herewith and marked as Annexure No.2 (Colly) to this affidavit. 5. That the Joint Commissioner, Commercial Tax, Dehradun Division, Dehradun vide his letter dated 14.02.2013 had also requested the Commissioner, commercial Tax, Uttarakhand, Dehradun that due to Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the order of the assessment is 31.05.2014. 12. Learned counsel for the appellants would also point out that for the year 2008‐09, respondent no. 2 issued an ex parte assessment order on 30.11.2012. Thereafter, the appellant filed an application for re‐opening on the ground that no show cause notice was served; respondent no. 2 withdrew the ex parte order and passed assessment order on 26.02.2014. In respect of the distributor for the year 2009‐10, the assessments, which should have been completed on 31.03.2013, came to be completed only on 27.04.2014. He would submit that the reasons given for the extension of time in the affidavit would appear to be that for the year 2007‐08, the time was extended, again under sub‐section (12) of Section 32 of the Act, till 30.11.2011 and they could not, therefore, complete the assessments by 31.03.2012 for the Assessment Year 2008‐09. It is pointed out that the period of limitation is three years. It is submitted that monthly returns are filed which are gone into by the authorities and by the end of the year the annual returns are filed and the work is essentially ministerial and it is too much to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trains along a portion of a highway; before doing so, they had to comply with the section and "cause a sufficient road to be made instead of the road, to be interfered with" (A.G. v. Widnes Railway, 30 LT 449). Extraordinary. Beyond or out of the common order or rule; not usual, regular or o a customary kind; not ordinary; above ordinary (as) Extraordinary jurisdiction of High Court. The word does not mean what has never been previously heard of, or within former experience, but only what is beyond the ordinary, usual or common. (The Titania 19 Feb. 101, 105)." Outside the usual or ordinary. [S. 57(e), T.P. Act (4 of 1882)]. Describing additional items, expenditure, etc. acquired or incurred in addition to normal business. (Banking) EXTRAORDINAY, REMARKABLE, are epithets both opposed to the ordinary, but things may be extraordinary which are not remarkable, and the contrary. The extraordinary is that which is out of the ordinary course, but it does not always excite remark, and is not therefore remarkable, as when we speak of an extraordinary loan, an extraordinary measure of government; on the other hand, when the extraordinary conveys the idea of what deserves notice, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Violation of any provision of the constitution. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling act. (e) Repugnancy to the laws of the land, that is, any enactment. (f) Manifest arbitrariness/ unreasonableness ( to an extent where the court might well say that the legislature never intended to give authority to make such rules). The court considering the validity of a subordinate legislation will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non‐conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity." 19. Per contra, the learned Additional Advocate General would submit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of one law may not be appropriate in the context of the another statute. In this case, we are called upon to decide the import of the words 'extraordinary circumstances' in a statute which enables the State to extend the period of limitation. On the one hand, it is the requirement of law that assessments are completed at the earliest and, at any rate, within the normal period which is fixed. Whether, it is from the view point of the assessee or from the view point of the revenue, it is imperative that assessments are completed at the earliest. As far as the interest of the revenue is concerned, it is of paramount importance for the upkeep of the State that the State is able to expend money for various public purposes for which it requires revenue, that assessments are completed at the earliest and lawful demands can be generated and money realized and expended for public good. From the point of view of the assessee also, there would be a legal right, apart from the legitimate expectation that the assessment would be completed by a prescribed period. It would, in fact, be illegal to complete the assessments beyond the period. But then it is obviously keeping in view public interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere indeed 'extraordinary circumstances' which justified the extension of the period of the limitation for the Assessment Year 2007‐08 till November 2011. For the Assessment Year 2008‐09, the period of limitation expired on 31.03.2012. This means that after attending to the cases for the Assessment Year 2007‐08, for which period was extended till November 2011, there remained only four months for the Assessing Authorities to complete the assessment for the year 2008‐09, and, therefore, it would show that there were circumstances which cannot be treated as ordinary. The concept of extraordinary, as we have already noted, must be read in the context. There is a case for the State, as advanced to the arguments of the learned Additional Advocate General, that the State inherited 30 officers and there were shortage of officers; apparently that necessitated the extension granted for the year 2007‐08. Therefore, in the matter of completing the assessment for realizing the tax lawfully due, the authority decided to exercise its power and extend the period for the year 2008‐09, keeping in view the facts also that the assessment for the year 2007‐08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no reasons as such are forthcoming. What is urged at the bar by the learned Additional Advocate General that the cumulative cases of the previous years rendered it necessary to resort to the power under sub‐section (12) of Section 32 of Act. In fact, we notice that the last date, by which assessment should have been completed, was 31.03.2014, whereas the assessment was completed by 31.05.2014. We also notice the submission of the learned Additional Advocate General that for the year 2011‐12 the power has not been resorted to. 26. Therefore, if the Court views the matter in the context of the State of Uttarakhand having been born on 09.11.2000, with the obvious teething problems a new State would be confronted with which includes shortage of staff, number of cases to be dealt with, we cannot hold that it was normal circumstance and that there were no extraordinary circumstances. We have already adverted to the public interest involved in extending the period of limitation. 27. In such circumstances, we see no merit in the appeals. In regard to the other points, which have been raised, we affirm the judgment of the learned Single Judge and we leave it open to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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