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TMI Blog2020 (11) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors. Though the assessees sought the limitation period to be limited to four years as has been prescribed under sub-rules (7) and (8) of Rule 6 of the CST Rules, the decisions thought it fit to refer to the General Sales Tax laws applicable in the State, thus enlarging the period of limitation from that available in the Rules. The two different Benches of this Court relied upon S.B.Gurbaksh Singh v. Union of India [(1976) 2 SCC 181] and State of Punjab v. Bhattinda District C o -operative Milk Producers' Union Ltd. [(2007) 11 SCC 363] for the principle that even if no limitation is provided, the State has the duty to complete such assessment within a reasonable period. This is challenged relying on a Constitution Bench decision of the Hon'ble Supreme Court and a three-Judge Bench decision clarifying what has been stated in S.B.Gurbaksh Singh. 2. Sri.Mohamed Rafiq first relies on a Constitution Bench decision of the Hon'ble Supreme Court Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax [1964 (4) SCR 436]. It is specifically pointed out that the Bench unanimously and categorically held that when the statute provides for a return to be filed and does not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the returns are to be filed, the statutory obligation deems the proceedings to be pending from the date on which such returns were to be filed and hence there was no scope for invoking the provisions of Section 11-A, which is to be invoked for covering escaped assessment. 4. The Hon'ble Supreme Court analysed each of the sub-sections under Section 11, which was the provision regarding assessment. With respect to a registered dealer four variations were noticed, (i) the dealer submits a return properly and pays the amounts due, which is accepted by the Commissioner for the purpose of appropriation of the amounts paid to tax, (ii) the return is suspect and a notice is issued under Section 11(2); makes an enquiry but no assessment is finalized, (iii) no return is submitted and the Commissioner issues notice under Sections 10(3) and 11(4), without finalization and (iv) where no return is filed and the Commissioner also does not issue notice within three years. In the first instance when return is accepted and amounts paid appropriated to tax, there is a final assessment made. In the second instance of a notice having been issued after the return is filed, the assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 23.11.1959. In first appeal, the appellate authority held that the assessment for the first two quarters was invalid, having been made out of time. The Commissioner however revised the first appellate order invoking the suo motu powers on 29.07.1960. There was no limitation provided insofar as exercise of suo motu power. It was argued for the assessee that (i) the appellate and revisional authorities should exercise their powers within the period provided for finalization of assessment, (ii) even the Commissioner exercising suo motu power is regulated by the limitation of three years provided under Section 11-A dealing with escapement of assessment and (iii) the revisional authority must exercise the power in a reasonable manner and within a reasonable time. A three-Judge Bench rejected all the above contentions and on the last submission, it was found that there was no unduly long delay and in answer to the question it was held that "It may well be that for an exercise of the suo moto power of revision also, the revisional authority has to initiate the proceedings within a reasonable time. Any unreasonable delay in exercise may affect its validity" (sic para 15). The aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference". 9. From Pranay Sethi we cite the following paragraph: "28. In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra (2014) 16 SCC 623) which correctly lays down the principle that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case where S.B.Gurbaksh Singh, a three-Judge Bench, was differed from in Indian Aluminium Cables Limited, which again was a Bench of co-equal strength. 11. Bharat Steel Tubes Ltd. v. State of Haryana [(1988) 3 SCC 478] was a case in which the assessment was allowed to be completed, since there was no specific limitation provided, within four months from the date of judgment. Therein, Ghanshyamdas was considered and the dictum was held to be so in paragraph 6: "6. On the basis of this authority, it would follow that notices under sub-section (2) of either Section 11 or Section 28 of the relevant Acts, having already issued and final orders of assessment having not been made, assessment proceedings are still pending". Indian Aluminium Cables Limited was also referred and held so in paragraph 13: "13. In Indian Aluminium case this Court has approved the earlier decision in Gurbaksh Singh v. Union of India. The ratio in Gurbaksh Singh case is that in the absence of a period provided by statute for completion of assessment, an order of assessment made with some delay would not be without jurisdiction. Even in Indian Aluminium case, where the statute requires assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made herein before, must be found out from the statutory scheme. As indicated herein before, maximum period of limitation provided for in sub-section (6) of Section 11 of the Act is five years". It is this proposition of law with respect to the completion of assessments, invocation of suo motu powers, etc. within a reasonable period in the absence of a statutory prescription of limitation which was relied on by the two Division Benches of this Court in Parisons Foods (P) Ltd. and Fijo Joseph. We do not find any reason to differ from the same. 14. Collector v. D.Narsing Rao [(2015) 3 SCC 695] was a case in which on the allegation of fraudulent entries, patta of certain lands were sought to be cancelled. Along with a number of other decisions, Bhattinda District C o -operative and Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Ibrahim were cited with approval. Chhedi Lal Yadav v. Hari Kishore Yadav [(2018) 12 SCC 527] again was concerned with the restoration of lands for which no limitation was prescribed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on filing of return, there is a self assessment under Section 21, which deems the assessment to have been completed on the receipt of the return. It can be reopened inter alia under Section 25 with a notice issued within five years as has been interpreted by this Court in CTO v. Najeem [2018 (3) KLT 877]. 17. Rule 6 of the CST Rules provides for the procedure of assessment. Sub-rule (1) speaks of monthly returns and sub-rule (1A) of quarterly returns applicable to specified dealers. Sub-rule (2) provides for filing of return by a dealer who discontinues the business during the course of the year. Sub-rule (2A) enables any dealer to revise the returns filed under sub-rules (1), (1A) or (2) at any time before an assessment is finalized. The return of transactions, so made under Form-II under the relevant sub-rule; on its filing is provisionally accepted, subject only to sub-rule (4). Sub-rule (4) speaks of determination of turnover to the best of judgment of the assessing authority for provisionally assessing the tax or taxes payable for the month or quarter as the case may be. Such provisional assessment under sub-rule (4) is permissible only till the close of the year after which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -opening either for determination of turnover or for revising the rate of tax or even for rectification of a mistake. We would have in that context found the reasonable time to be four years. However, we are bound by the Division Bench decisions which adopted the limitation as provided under the General Sales Tax law. 19. As we saw from Section 9, the tax authorities are enabled to invoke the provisions of the General Sales Tax law if there is no contrary intention seen from the provisions of the CST Act and the Rules framed thereunder. Rule 6(5) does not provide for a period of limitation and when the General Sales Tax law provided a period of five years for re-opening an assessment which is deemed to be completed under Section 21, the same applies under the CST Act and the Rules. We cannot but observe that though Section 25 of the KVAT Act provides for re-opening of the completed assessment under Section 21, under the CST Rules the limitation provided for reopening of assessment on the ground of escaped assessment is four years. The Division Benches however having held the period provided under the KVAT Act to be applicable, we would not deviate from the same. 20. Applying th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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