Assistant Commercial Taxes Officer, Ward-II vs Yogesh Goyal and Sons

Jainendra Kumar Ranka, J.—Both, these aforesaid revision petitions are arising out of the same order dated March 6, 2009 passed by the Rajasthan Tax Board, Ajmer, in Appeal Nos. 185 of 2008 and 186 of 2008. Since, the facts of the case are common, therefore, they are being decided by this common order. The brief facts of the case are that there was a "Composition Scheme" for Sarrafa/bullion dealers and the said Scheme came into operation in the year 1999. The respondent opted for the said Scheme and he was issued necessary composition order. As per the Scheme, one who opted for, had to pay tax in accordance with the Scheme and on payment of desired amount, nothing was required to be done by the assessee, on the contrary even the composition certificate was sufficient to deem it as the assessment order. This Scheme was for a period of five years. Later on two notifications came to be issued on March 22, 2002 and June 28, 2003 by the Commercial Taxes Department, by which the tax on Composition Scheme was raised and in accordance with the increase in rate, the assessing officer levied additional tax and interest.

Not being satisfied by the imposition of additional tax and interest, the respondent preferred appeals before the learned Deputy Commissioner (Appeals), Commercial Taxes Department, Bharatpur, who being satisfied that once, the assessee-respondent had opted for the Composition Scheme of 1999, the same being valid for five years, therefore, the assessing officer was precluded from levying additional tax and accordingly, held that the additional tax cannot be levied as the said notifications have no retrospective operation and quashed the order.

The petitioner-Department carried the matter before the Rajasthan Tax Board, Ajmer (in short, "the Board"), by way of appeals, who vide its order dated March 6, 2009 after detailed discussions came to the conclusion that the Department ought not to have levied additional tax and interest once, the respondent has been allowed to opt for composition scheme under the Act, additional tax should not have been levied merely on the ground that two notifications came to be issued at later point of time. Accordingly, the Board had rejected the appeals filed by the Department.

Aggrieved by the said order, the petitioner-Department has preferred these revision petitions, challenging the order passed by the Tax Board.

Ms. Tanvi Sahay, appearing on behalf of Mr. R.B. Mathur, learned counsel for the Department-petitioner, submits that the order of the Tax Board is illegal improper and unjustified and two notifications issued at later point of time have retrospective effect and the learned assessing officer, was justified in levying additional tax. She further argued that the notifications issued by the Department from time to time have retrospective effect/operations and the learned assessing officer, was fully justified in following live notifications and in levying the additional tax and due interest.

I have considered the arguments advanced by the learned counsel for the Department-petitioner and have also gone through the material on record as well as the order passed by the learned Tax Board. In my opinion, the Tax Board, was justified in dismissing the appeals filed by the Department-petitioner. It is apparent on the face of the record that the assessee-respondent opted for the Composition Scheme, 1999 which was applicable for a period of five years and he had to deposit the tax as per the Scheme to avail of the benefit of the said Scheme. It is prescribed in the said Scheme itself, that even the certificate issued under the said Scheme is deemed to be an assessment order and therefore, when the assessee had complied with the directives of the Scheme, by later notifications, his right could not have been curtailed. The Department was precluded from levying additional tax in the light of the two notifications, which was issued at later point of time, the assessing officer was not justified in going behind and holding that the said notifications have retrospective effect. Since, both the aforesaid notifications curtailed the right of the assessee-respondent, by no stretch of imagination, they could be said to be retrospective in nature and they can be said to be prospective in nature. The right conferred by the statute or some beneficial scheme, cannot be curtailed by later notifications, when some benefits have been given by the Department, the benefits ought to have been given its due till the period of the scheme which arise out of the said scheme. It is also apparent from the record that even no notice was given to the respondent-assessee before passing of the assessment order by the petitioner and without notice the said assessment order was passed, which is also in utter violation of principles of natural justice and cannot be sustained. Therefore, the assessing officer, was not at all justified in re-opening the concluded assessment based on Composition Scheme by merely passing a fresh order. If assessment so made is to reopen, reasons have to be recorded and no order could be passed merely on the ground of issuance of notifications which came to be issued at later point of time.

In view of the facts and circumstances of the case, I am of the firm opinion, that the order passed by the Tax Board, is just, proper and reasonable and I do not find any perversity in the aforesaid order so as to call for any interference by this court. Consequently, both the revision petitions u/s 84 of the Act, being devoid of merits are dismissed.