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TMI Blog2020 (3) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... Mrs. Moushmi Chatterjee, AC to Sr.S.C-III ORDER As both these writ applications involve the same question of law, they have been heard together and are being disposed of by this common Judgment. 2. Heard learned counsel for the petitioner and learned counsel for the State in both the Writ applications. 3. The matters under challenge are the review of the assessment of the sales tax, relating to the assessment years 2004-05 and 2005-06. The writ petitioner made some inter-State sales to unregistered dealers. For the inter-State transactions, the petitioner was exempted from the State tax under Section 7 (1-a) of the Bihar Finance Act, 1981, (herein after referred to as the 'State Act'), but was liable to pay tax under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter was reviewed pursuant to an audit objection, and after getting the consent of the Commissioner of the Commercial Taxes on 23.06.2009, and the assessment order was reviewed by the impugned order dated 01.10.2009, by the Assessing Authority, imposing surcharge on the assessed tax. 5. The audit objection has been brought on record, which shows that since the petitioner was liable to pay tax on the inter-State transactions with unregistered dealers, at the rate applicable as per the State Act, the petitioner was also liable to pay surcharge which was not levied at the time of passing the original assessment order. On the basis of this audit objection, notice was issued under Section 47 of the Bihar Finance Act, read with Rule 32 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by learned counsel that in the review order dated 01.10.2009, whereby the surcharge was imposed upon the petitioner, no reason whatsoever has been assigned by the Assessing Authority for reviewing the order, showing his independent application of mind, except repeating the audit objection. 7. Placing reliance on Section 8 (2) of the CST Act, learned counsel for the petitioner has further submitted that in cases of the inter-State transactions made with the unregistered dealers, only "the tax" is leviable under Section 8 (2) of the CST Act. There is no mention of 'surcharge' under the CST Act. It is submitted that the word "tax" is not defined under the CST Act, rather it is defined under Section 2 (x) of the State Act, which sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wordings of Rule 32 of the Bihar Sales Tax Rules, which reads as follows:- "32. Review.- (1) When any authority appointed under section 9 reviews under section 47 any order passed under the Act it shall record reasons for doing so. *** *** *** ." 11. Since this Rule clearly says that before passing the review order under the Act, the reasons are required to be recorded, which is a mandatory provision, the review order needs to be looked into, to see whether it passes the test of Rule 32 of the Rules. The relevant portion of the review order, shows that the only reason given therein reads as follows:- 12. It is submitted by the learned counsel for the State that when the assessee admits that he has paid the tax at the maximum rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n raised by the Assessing Authority, without application of his own independent mind. Rule 32 of the aforesaid Rules is absolutely clear in these terms. 14. Since, we find that no reason has been assigned by the Assessing Authority in the review order dated 01.10.2009, the same cannot be sustained in the eyes of law. Accordingly, both the review orders dated 01.10.2009, with respect to the assessment years 2004-05 and 2005-06, as challenged in both these writ applications are hereby, quashed. Consequently, the impugned order / Judgement passed by the Appellate Authority and the Tribunal, are also, set aside. 15. By order dated 28.03.2012, passed in these writ applications, while staying the levy of surcharge, this Court had directed the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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