TaxTMI 
TaxTMI 
2010 (1) TMI 1115
X X X X Extracts X X X X
X X X X Extracts X X X X
....espondent-assessee herein, M/s. Ketan Enterprises, is a registered dealer under the BST Act. The respondent-assessee is a reseller in sulphur and iron and steel. The respondent-assessee filed a return under the BST Act for the period 1994-95, i.e., for April 1, 1994 to March 31, 1995 showing turnover of sales at Rs. 1,83,63,441, resale claim at Rs. 1,83,63,441 and turnover of purchases at Rs. 1,69,60,887. However, while passing the order under section 33(2) of the BST Act in form A, the Sales Tax Officer had shown turnover of sales as nil. The respondent-assessee was assessed for nil tax under section 33(2) of the BST Act vide order dated June 4, 1996. The Sales Tax Officer received a letter dated March 17, 1999 from the Sales Tax Officer, E-102, (Enforcement Branch), Mumbai stating, inter alia, that a visit was paid by him to the place of business of the respondentassessee on January 19, 1999 and January 23, 1999 and on scrutiny of the books of accounts of the respondent-assessee, it was found that the respondent-assessee had effected purchases of sulphur during the year 1994-95 on high seas basis from MMTC and sold the same locally without payment of tax. The details given ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hority dated September 30, 2002 including that of penalty levied on the respondent/assessee. The appeal was allowed with directions to the assessing officer to give credit of Rs. 1,84,000 with consequential relief as per the provisions of law. The Commissioner of Sales Tax not satisfied with the above order of the Tribunal, holding belief that the Tribunal had decided the case against the Department without considering the ratio laid down by the High Court of Allahabad in the case of Allahabad Milling Co. Private Ltd. v. Sales Tax Officer II, Allahabad [1966] 17 STC 211, invoked the jurisdiction of the Tribunal under section 62 of the BST Act and prayed for rectification of the order of the Tribunal dated January 31, 2004. The Tribunal, after detailed discussion followed by reasons was pleased to reject the application for rectification vide its order dated May 7, 2005. Being aggrieved by the aforesaid order of the Tribunal dated January 31, 2004 and May 7, 2005, the writ jurisdiction of this court under article 226 is invoked by the State of Maharashtra through the Commissioner of Sales Tax, Mumbai. Rival submissions Mr. Sonpal, learned counsel for the pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as "dealer" in his personal capacity, as such the petition under trade name is not maintainable. Mrs. Badekha also contends that the alternate remedy by way of reference under section 61 of the Act was very much available to the petitioner. No such reference application was filed under section 61 of the Act, consequently, the impugned order has become final and conclusive. In her submission, the petition is not tenable. Reliance is placed on the Division Bench judgment of this court in the case of Shankar Dhawan v. Sales Tax Officer [1964] 15 STC 292. The another objection relates to the delay and latches in invoking writ jurisdiction of this court contending that the time lost in prosecuting the rectification application cannot be taken into consideration, since it was not provided by way of alternate remedy. She further submits that the petition also involves investigation of disputed questions of facts as such this is not a fit case for invoking writ jurisdiction of this court. She also urged that the impugned order of the Tribunal is based on material available on record as such they cannot be disturbed unless shown to be perverse or unreasonable. This court, not bein....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nover of purchases of any goods has in respect of that year or part thereof escaped assessment, or has been under-assessed or assessed at a lower rate, or that any deduction has been wrongly made or any drawback, set-off or refund has been wrongly granted then the Commissioner may, (b) where he has reason to believe that the dealer has concealed such sales or purchases or any material particular relating thereto, or has knowingly furnished incorrect returns, at any time within eight years, and (c) in any case, at any time within five years, of the end of that year, after giving the dealer a reasonable opportunity of being heard, proceed to assess or reassess, to the best of his judgment, the amount of tax due from such dealer." Consideration The aforesaid sub-section lays down that when the Commissioner has reason to believe that during the assessment of turnover of any sales or purchases some turnover has either by mistake or by mischief escaped assessment, or has been under-assessed or some deductions have been wrongly made or any drawback, set-off or refund has been wrongly granted, he may in the case of a dealer who has concealed some sales or purchases or material ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he belief may not be open to scrutiny as it is the final conclusion arrived at by the officer concerned, as a result of mental exercise made by him on the information received. But the reason due to which the decision is reached can always be examined. The existence of reason(s) to believe is supposed to be the check, a limitation upon the power to reopen the assessment (see the leading decision on this subject in Barium Chemicals Ltd. v. Company Law Board [1966] 36 Comp Cas 639 (SC); [1966] Suppl SCR 311 at 361; AIR 1967 SC 295 at 324). The power conferred upon the Sales Tax Officer by section 35(1) is thus not unbridled one. It is hedged with several safeguards conceived in the interest of eliminating room for abuse of this power by the assessing officers. The idea is to save the assessee from harassment resulting from mechanical reopening of assessment. When it is said the reason to believe is not open to scrutiny what is meant is that the satisfaction arrived at by the officer concerned is immune from challenge but where the satisfaction is not based on any material or it cannot withstand the test of reason, which is an integral part of it, then it falls through an....