TaxTMI 
TaxTMI 
2002 (7) TMI 780
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....ilable under the notification. The dispute circles around the sale of levy cement. The case of the petitioner is that in computing the tax, levy cement cannot be taken into account. The figures of levy cement have to be excluded from levy of tax. 4.. The petitioner further claims that in terms of clause (1) of the aforesaid notification, benefit is allowable to the petitioner on the basis of its percentages of branch transfers. The base year for the purpose of the notification is claimed to be from April 1, 1984 to March 31, 1985. 5.. The petitioner moved an application before the regular assessing authority, i.e., Commercial Taxes Officer, Special Circle, Pali. It was requested by the petitioner in the application that the percentages of inter-State sales and branch transfers of non-levy cement be determined for the base year 1984-85. This was required to follow the benefit under the notification dated May 6, 1986. The Commercial Taxes Officer, Special Circle, Pali, after verifying and scrutinising the records of the petitioner determined the following percentages of inter-State sales, branch transfers and intra-State sales of non-levy cement of the base year 1984-85 in t....
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....It has been further claimed by the petitioner that in partial compliance of the order of the appellate authority, the assessing authority passed order dated March 26, 1999 for the assessment years 1992-93 and 1993-94 allowing partial exemption in respect of inter-State sales of levy cement on account of increase as against such percentages of the base year 1984-85. The assessing authority also directed refund of the amount of partial exemption. The prayer of interest however not acceded to. The assessing authority did not allow the interest while ordering refund for the years 1989-90, 1990-91, 1992-93 and 1993-94. Against such orders of not allowing interest, appeals are pending before the Deputy Commissioner (Appeals), Jodhpur. Rectification applications are also pending before the assessing authority claiming interest on the refund of amount for all these years. 11.. The assessing authority for the assessment year 1994-95 allowed partial exemption in terms of notification. The petitioner has not claimed partial exemption in relation to the assessment years 1995-96 and 1996-97. For the year 1997-98, partial exemption was allowed. 12.. The petitioner in the writ petition alle....
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....e said notice is under challenge in the present writ petition. 16.. The claim of the petitioner is that respondent-department has allowed partial exemption to the petitioner and has held that the benefit of the notification is available to the petitioner. Once denied the benefits permitted to avail, the same cannot be now interpreted differently. The interpretation sought to be given by the respondent No. 2 is patently wrong and also against the accepted position. The reassessment notice is illegal and void. 17. The petitioner has claimed that it is well-settled that respondent No. 2 cannot re-invoke jurisdiction under section 30 of the RST Act on mere change of opinion on same facts. It has been claimed that it cannot be disputed that in the present case, the matter of partial exemption directly received attention of the assessing authority on earlier occasion. The assessing officer cannot be vested with the power to reopen the closed assessment. 18.. It has also been claimed that the Anti-evasion Wing had no authority to initiate proceedings. The Anti-evasion Wing under subrule (5) of rule 3 of the Rajasthan Sales Tax Rules, 1995 (hereinafter referred to as "th....
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.... respect of inter-State sale in the year for which the benefit is being claimed. (e) There is no sale of levy cement in the year in question in as much as levy cement itself was discontinued in the year 1997-98. Therefore, the question of such exclusion has merely become academic." 20.. The petitioner has according to the respondents not correctly appreciated the fact and law and have reply to the points in the following terms: "(a) That during the survey of the business premises of the petitioner made by the respondent-authority it was detected that during the assessment year 1984-85 the petitioner effected sale of cement as under: Branch Transfer 2,26,839.800 MT 47.28 per cent, Inter-State sale 1,72,874.400 MT 36.03 per cent and sale within State, 80071.200 MT 16.69 per cent. That during the assessment in question, i.e., 1997-98 the petitioner-unit effected the sale of cement as under: Branch transfer 798262.070 MT 61.08 per cent Inter-State sale 222617.600 MT 17.02 per cent Sale within State 286499.770 MT 21.92 per cent Thus, it is manifestly clear that during the assessment year 1997-98 there is no increase in the percentage of quantum of goods sold i....
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....nsfer the petitioner was not entitled to exclude the sale of levy cement during the relevant base year if the sale of levy cement as aforesaid during the base year 1984-85 is taken into account then there is no increase in the percentage of quantum of goods sold in the course of inter-State trade or commerce out of total quantum of goods sold within the State in the course of inter-State trade or branch transfer during the accounting year in question, i.e., 1997-98 as against such percentage during the accounting year 1984-85. Therefore, by no stretch of imagination it can be said that the impugned notice has been issued only on the basis of change of opinion. At the cost of repetition it is submitted that the notice has been issued on the basis of detection of evasion/concealment of tax during the survey conducted on February 16, 2001. A fortiori as per the provisions of section 30 of the RST Act, 1994 if for any reason the levy of tax or any fee or sum payable under the tax escaped wholly or in part or the tax has been wholly or in part unassessed or under-assessed in any way or under any circumstances then the same shall be deemed to be escaped assessment then the assessing auth....
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....of quantum of the goods sold in the course of inter-State trade or commerce out of total quantum of goods sold within the State in the course of inter-State trade or commerce and despatched to head office, branch office, depot or agent outside the State for sale outside the State during any accounting year as against such percentage during the accounting year 1984-85. Apparently the words "total quantum of goods sold" used in condition No. 1 of the notification refer to total sales of all the three types of transactions, i.e., sale within the State, inter-State sale during the course of inter-State trade and commerce and branch transfer of the goods manufactured in the State, there is no express or implied exclusion of any sale effected during the period. The words 'total quantum of goods' are preceded by the words 'out of ' shows that the increase in the inter-State trade or commerce during the relevant assessment year for which the exemption is claimed has to be computed on the basis of the quantum of inter-State sale during the relevant base year 1984-85. Therefore, as per the notification so as to determine the entitlement of any dealer to avail the partial exemption in term....
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....ion and the writ petition deserves to be dismissed for this reason alone." Thus have prayed that the writ petition be dismissed. 21.. The petitioner has submitted reply to the preliminary objections of the respondents and have reiterated their stand taken in the writ petition. 22.. Learned counsel for the petitioner has submitted oral as well as written submissions regarding objections to the notice issued to the petitioner. The argument of the learned counsel for the petitioner is that the notice has been issued by the respondent No. 2. He is an officer of Anti-evasion Wing of the Commercial Taxation Department. This department has no jurisdiction to issue notice to the petitioner. Any notice can only be issued by the anti-evasion wing when there is evasion or concealment. In absence of these two factors, no notice could be issued. 23.. Learned counsel for the petitioner has argued that the existence of mens rea is a must before the anti-evasion wing can invoke jurisdiction. In this case, there was no mens rea involved. According to the learned counsel for the petitioner there does not involve any dispute about rate of tax connected or unconnected with the evasion or c....
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....no allegations that the case is covered by clause (b) or clause (c). The department, therefore could not have issued the notice. The assessment order dated July 20, 1999 which decided the assessment for the year 1997-98 was after correct and true disclosure of facts. The assessment was made after due application of mind. The order reveals that the assessing authority determined the levy of tax in respect of the entire inter-State sales. The order does not in any way dispute the position. There is no allegation in the impugned notice that the levy of tax has escaped assessment for any reason wholly or in part or that the tax has been unassessed or under-assessed under any circumstances in the original assessment. 27.. In the original assessment, the case of partial exemption under notification dated August 6, 1986 has been accepted by the department. Such assessment was on the basis of excluding levy cement sales base year 1984-85. Now, the department intends to obviate the exemption benefits on the basis of changed opinion. The terms being that the base year percentages in terms of notification should be inclusive of levy cement, according to the learned counsel for the petit....
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....); (2001) 3 RLW 1486 (Raj) the assessing authority acted on mere change of opinion. On consideration of facts of that case the Bench came to the conclusion in para 38 of the Report that it cannot be said that the assessing officer has invoked jurisdiction on mere change of opinion on the same material on the issue heard and decided earlier. 31.. The aforesaid binding judgment of division Bench of this honourable Court more particularly the findings, conclusions and the ratio decidendi as recorded in paras Nos. 11 and 31 of the Report fully applies to the present case. As already stated above and as is evident from the record, the impugned reassessment notice in this case has been given on mere change of opinion on the same facts. The benefit of partial exemption under Notification dated May 6, 1986 was granted after due, conscious and complete application of mind to the issue involved and now the successor officer, namely, the respondent No. 2 by simply taking different view on very same issue on the very same material wants to redecide the same. It is nothing but a case of mere change of opinion which does not empower exercise of reassessment power. The review of original as....
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....hat having second thoughts on the same material does not warrant initiation of reassessment proceedings. (v) [1979] 119 ITR 996 (SC) (Indian and Eastern Newspaper Society v. Commissioner of Income-tax, New Delhi) at pages 1004-05 it has been held that an error discovered on reconsideration of the same material does not empower reassessment. This view also taken earlier in Commissioner of Income-tax, Gujarat v. A. Raman and Co. [1968] 67 ITR 11 (SC), Bankipur Club Ltd. v. Commissioner of Income-tax, Bihar and Orissa [1971] 82 ITR 831 (SC) and Commissioner of Income-tax, West Bengal v. Dinesh Chandra H. Shah [1971] 82 ITR 367 (SC). (vi) Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan [1980] 46 STC 256 (SC)-it has been held that reassessment not permitted when after due consideration turnover found not eligible to tax, merely because the assessing authority subsequently comes to take a different view. (vii) The petitioner also places reliance on the division Bench judgment of the honourable Delhi High Court reported in [1998] 234 ITR 170 (Jindal Photo Films Ltd. v. Deputy Commissioner of Incometax) which has been approved by Full Bench of honourable Delhi High Cour....
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....reof will be without jurisdiction and liable to be struck down in writ jurisdiction. The absence of jurisdictional facts and the non-existence of conditions precedent renders the reassessment proceedings void and non est. Reference in this connection is made to the following judgments: Calcutta Discount Co. Ltd. v. Income-tax Officer [1961] 41 ITR 191 (SC), Indian and Eastern Newspaper Society v. Commissioner of Income-tax [1979] 119 ITR 996 (SC). 33.. Next point agitated by the learned counsel for the petitioner is regarding the notification dated May 6, 1986 which is the basis for claiming partial exemption. The interpretation favourable to the petitioner has been consistently followed by the department in the previous assessment orders. The first appellate authority has also accepted the similar views and are fully in consonance with the true spirit and legislative intent and scope of partial exemption benefit. The question of interpretation of the notification is a pure question of law which can certainly be determined authoritatively by this Court in writ jurisdiction. The interpretation sought to be given by the department in issuing notice is patently illegal and ag....
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.... In view of the aforesaid, it has been argued by the learned counsel for the petitioner that the case of the petitioner be accepted and the notice issued to the petitioner be quashed. 38.. Replying to the stand taken by the learned counsel for the petitioner, the learned counsel for the respondent-department has urged that the sheet anchor of the argument of the learned counsel for the petitioner is the reasoning given by a division Bench of this Court in the case of Black Stone Rubber Industries [2001] 124 STC 130; (2001) 3 RLW 1486. According to the learned counsel for the respondent-department, case of Black Stone Rubber [2001] 124 STC 130; (2001) 3 RLW 1486 does not lay down the correct proposition of law. For the reasons which have been expressed in Black Stone Rubber Industries [2001] 124 STC 130; (2001) 3 RLW 1486 that the division Bench decisions of this Court in Century Ecka v. State of Rajasthan reported in [1987] 67 STC 103, Akbarali Amanatali v. Assistant Commercial Taxes Officer reported in 1976 RLW 648 is per incuriam, for the similar reason this decision also is required to be declared to be per incuriam. It cannot form the basis of any justifiable argument. 39....
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....es for determination in these two Appeals Nos. 1190 and 1191 of 1969, which have been filed by special leave against the common judgment of the Orissa High Court allowing writ petitions filed by the respondents against the appellants." The court was concerned in the aforesaid case regarding the reasons to be mentioned in the notice itself and the court has expressed itself in the following terms regarding this question: "We would like to make it clear that if the Sales Tax Officer is in possession of material which he proposes to use against the dealer in proceedings for reassessment, the said officer must before using that material bring it to the notice of the dealer and give him adequate opportunity to explain and answer the case on the basis of that material." 42.. If in coming to the aforesaid conclusion, the court has made certain general observations, then certainly that portion is not the ratio of the case. As per the established judicial discipline, a case is considered authority on the point it decides. This point has been considered in Prakash Amichand Shah v. State of Gujarat reported in AIR 1986 SC 468, Amar Nath Om Prakash v. State of Punjab reported in [1986....
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.... would be fully applicable." The referred case was related to the revisional powers. 45. Thus, Dhanalakshmi Vilas Cashew [1969] 24 STC 491 (SC) cannot be considered to be a case deciding the controversy of escapement of assessment. The question answered in the aforesaid case was not the question as understood by this Court in Black Stone Rubber Industries [2001] 124 STC 130; (2001) 3 RLW 1486. 46.. In paragraph 17 of the decision of Black Stone Rubber Industries [2001] 124 STC 130 (Raj); (2001) 3 RLW 1486 it has been observed by learned Judges as under: "We may recall that in the case of Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Dhanalakshmi Vilas Cashew Co. [1969] 24 STC 491 (SC), the Supreme Court answered this question by holding that while the same officer or the successor officer is not entitled to take recourse to reassess the assessee by reopening the assessment merely on the basis of change of opinion because he holds a different view." 47. Learned counsel for the respondent submit that such was not the question raised in Dhanalakshmi Vilas' case [1969] 24 STC 491 (SC). Dhanalakshmi Vilas' case was only considering the ques....
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....on, even in a case where a return has been submitted, if the Income-tax officer erroneously fails to tax a part of assessable income, it is a case where the said part of the income has escaped assessment. The appellant's attempt to put a very narrow and artificial limitation on the meaning of the word 'escape' in section 34(1) cannot therefore succeed." 52.. The observations of the Supreme Court that where Incometax Officer has erroneously failed to tax assessable income then, it can be said that part of income has escaped assessment does not support the observation made in Black Stone Rubber [2001] 124 STC 130 (Raj); (2001) 3 RLW 1486. Learned counsel has further invited attention to the observation of the court in more clear terms in Maharajadhiraj Kameshwar Singh [1959] 37 ITR 388 (SC); AIR 1959 SC 1303 the honourable Supreme Court has held as under: "For the reasons we have given, we are of the opinion that the Agricultural Income-tax Officer was competent under section 26 of the Act to assess an item of income which he had omitted to tax earlier, even though in the return that income was included and the Agricultural Income-tax Officer then though that it was exempt. The....
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....In this case, the honourable Supreme Court has observed after considering the case of Maharajidhiraj Sir Kameshwar Singh reported in [1959] 37 ITR 388 (SC); AIR 1959 SC 1303: "This is not a case where the Agricultural Income-tax Officer omitted to assess any item of income disclosed in the assessee's return." 56.. Therefore, on facts it was not a case of escapement of assessment. Further, the respondents in the case has not disputed that some amount of deduction is permissible. The court has held as under: "Here the assessee made a full disclosure of his income and claimed certain deductions. It is not disputed that he was entitled to claim some deductions for the maintenance of the immature rubber plantation. The Agricultural Income-tax Officer allowed such deductions as he thought proper after considering the matter. 57.. It was not a case wherein any disagreement was made by the honourable Supreme Court regarding the law laid down earlier. In fact, this decision was given in the background where the department itself has not disputed that some deductions were maintainable. What can be the extent of deduction was the question. The inference drawn in Black Stone Rubber....
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.... petitioner chooses to file a rational reply before the department and contest the notice. Therefore, it cannot be said that the petitioner is entitled to invoke extraordinary jurisdiction of this Court. The only course available to the petitioner is to approach the department. 63.. Further, the principles of res judicata are not attracted in tax matters wherein a case of escapement of assessment on account of interpretation of circular whether a notice in such circumstance be issued was a question which was raised and decided in Maharajadhiraj Sir Kameshwar Singh [1959] 37 ITR 388 (SC); AIR 1959 SC 1303. The honourable Supreme Court has dealt with the similar controversy wherein on account of pleaded exemption, assessment was not made. Such income in view of the honourable Supreme Court was held to be income which has escaped assessment. Therefore, the principles of res judicata as pleaded by the learned counsel for the petitioner should not be taken into account. 64.. I have considered the rival submissions and given my thoughtful consideration. 65.. The whole controversy depends on the purport of the language used in clauses (b) and (c) of sub-section (1) of section 30 ....
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....r the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct." 67.. A reference may be made in this connection to a Supreme Court decision in the matter of Molar Mal (dead) through LR's v. Kay Iron Works (P) Ltd. reported in AIR 2000 SC 1261 wherein the honourable Supreme Court has held as under: "It is next contended on behalf of the landlord that the decisions cited above have stood the test of time since 1978 onwards, if not earlier, because of which the law is so understood in that part of the country, therefore, we should not interfere with the ratio laid down by the High Court of Punjab and Haryana in those cases so as not to create uncertainty in judicial thinking. We are unable to accept this argument advanced on behalf of the landlord. When we find that the interpretation of the proviso by the High Court is wholly contrary to the object of the Statute, merely because it had remained to be the interpretation of the High Court for....
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.... wholly or in part, then sub-section (2) of section 30 of the Act equips the designated sales tax authorities with the powers to issue notice for reassessment. Sub-section (2) of section 30 of the Act is quoted hereinbelow for ready reference: "Where the Commissioner or a Deputy Commissioner (Administration) has reason to believe that a dealer has escaped assessment to tax in any manner provided in sub-section (1), he may at any time, subject to the time-limit specified in sub-section (3), either direct the assessing authority to assess the tax or the fee or other sum or himself proceed to assess the same." 70.. To my mind, there appears no ambiguity in the language used. It cannot also be said that more than one meanings are conveyed. Thus, there appears to be hardly any scope for going for searching the intention of the Legislature. The expression used in clause (b) is "for any reason". The word "reason" as defined in Black's Law Dictionary is as under: REASON: 71.. A faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions. 72.. If from the expression "f....
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....Thus, the expression has been broadly interpreted to mean that as and when an Income-tax Officer wrongly grants exemption, that should be construed as an "escaped assessment". 76.. Wrong grant of exemption has been considered to be a contingency which is good enough to engulf into it escapement. This has also been observed that the words used do not involve possession of or coming by some fresh information. 77.. Apart from the expression "for any other reason" in clause (c) of sub-section (1) of section 30 of the Act used further expressions "in any way or under any circumstances". These expressions add superlative degree to the earlier expression used in clause (b) "for any reason". This leave no manner of doubt that Legislature has intended empowering the designated authority under section 30 of the Act to issue a notice of reassessment under a contingency which can be engulfed into the aforesaid statute. Thus, if the test for interpretation of a statute is applied as held by the honourable Justice Gajendragadkar in Kanai Lal's case AIR 1957 SC 907 then it is found that there is no ambiguity in the expressions used in section 30. There is no warrant for any exercise ....
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.... is used at a later date does not take away its binding character as a precedent. In such cases there is good reason to disregard the later decision. Such occasions in judicial history are not rare." 81.. Also, in the case of Amar Nath Om Prakash v. State of Punjab reported in [1986] 62 STC 130; AIR 1985 SC 218, it has been held by the honourable Supreme Court as under: "Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret words of statutes: their words are not to be interpreted as statutes." 82.. Further, in the case reported in AIR 1993 SC 43 [Commissioner of Income-tax v. Sun Engineering Works (P) Ltd.] it has been held by the honourable Supreme Court as under: "It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Supreme Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by the Supreme Court. The judgment must be read as a whole and the observations fro....
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....se which decided the question of powers of reopening. 86.. The division Bench of this Court in Black Stone Rubber [2001] 124 STC 130; (2001) 3 RLW 1486 has further considered a case decided by a two Judges Bench of honourable Supreme Court in the matter of Lucy Kochuvareed [1976] 103 ITR 799 (SC). In this case, the judgment proceeded on the admission of the income-tax authority that the exemption is admissible. The question of extent was the main question and thus, in this case also, the honourable Supreme Court was not considering the question of exemption as has been cited in the aforesaid judgment. The court has observed that "this is not a case where Agricultural Income-tax Officer omitted to assess any item of income disclosed in the assessee's return." 87.. In any case, the decision rendered by a Bench of two Judges would not affect the purport of the decision in Maharajadhiraj Sir Kameshwar Singh's case [1959] 37 ITR 388 wherein the honourable Supreme Court has held as under: "In our opinion, even in a case where a return has been submitted, if the Income-tax Officer erroneously fails to tax a part of assessable income, it is a case where the said part of the in....
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....ubstance. Whether on the facts proved the requirement of the landlord is bona fide within the meaning of section 14(1)(e) is a finding on a mixed question of law and fact. An inference that the requirement of the appellant in the present case was bona fide could not be regarded as conclusive.' Now, there can be no doubt that these observations made in Smt. Kamla Soni's case C.A. No. 2150 of 1966, decided on September 26, 1969 (reported in AIR 1969 NSC 186) are plainly in contradiction of what was said by this Court earlier in Sarvate T.B.'s case, 1966 MPLJ 26. It is obvious that the decision in Sarvate T.B.'s case, 1966 MPLJ 26 was not brought to the notice of this Court while deciding Smt. Kamla Soni's case, C.A. No. 2150 of 1966 decided on September 26, 1969 (reported in AIR 1969 NSC 186) or else this Court would not have landed itself in such patent contradiction. But whatever be the reason, it cannot be gainsaid that it is not possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T.B.'s case 1966 MPLJ 26 as against the decision in Kamla Soni's case AIR 1969 SC 186, as the former is a decision of a large....
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....this Court have already interpreted the provisions of section 12 and have construed the expression "for any reason" to include even the change of opinion. Thus, in view of the law laid down by the two division Bench judgments of this Court, I am bound by it and hold that the expression "for any reason" is wide enough to include even the change of opinion. Thus, this submission of the learned counsel has no merit and deserves to be rejected." 92.. In my humble opinion, the notice was issued in the circumstances where admittedly there was confusion about the applicability of the exemption. Admittedly, the department has been taking different stands about the applicability of the circular. Sometimes it has been held to be applicable for exemption and sometimes otherwise. Thus, the application of the notification has been a subject-matter of dispute. That being the position, if the notice is issued for reassessment and an opportunity is afforded to the petitioner to meet the grounds raised, then it cannot be said that the notice is without jurisdiction and the law laid down in Calcutta Discount [1961] 41 ITR 191 (SC), will come to operation at all. 93.. In tax matters, the questi....