Assistant Commissioner vs N.H. Industries

Vineet Kothari, J.—Heard learned counsels. The Revenue is aggrieved by the order dated July 8, 2008 of the Tax Board by which the Tax Board for the assessment years 1984-85 and 1985-86 held that original assessment order passed on February 27, 1988 could not be reopened u/s 30(3) of the Rajasthan Sales Tax Act 1994 after expiry of five years and, therefore, the impugned reassessment order dated July 1, 2002 was time-barred. The Tax board further held that first appellate authority-Deputy Commissioner (Appeals) was not justified in upholding the said assessment order vide its order dated August 18, 2005 and, therefore, the Tax Board allowed the assessee''s two appeals by the impugned order dated July 18, 2008.

Being aggrieved by the same, the Revenue has preferred these two revision petitions before this court.

The learned counsel for the Revenue, Mr. Siddhart Tatia, submitted that this court in revision petition filed by the Revenue against the same assessee-M/s. NH Industries in STR No. 1380 of 1999 (C.T.O. Bikaner v. N.H. Industries, Loonkaransar) decided on February 11, 2000, held that the issue regarding availability of concessional rate u/s 5CC of the RST Act, 1994 to the respondent-assessee or not was a debatable issue and same did not amount to mistake apparent on the face of the record and, therefore, same could not be rectified u/s 17 of the Act. The relevant portion of the decision of coordinate bench of this court dated February 11, 2000 is reproduced hereunder for ready reference:

The order of the Tribunal in Appeal No. 32 of 1986 itself goes to show that the question which it has decided was such a debatable issue and the assessing officer could not have resorted to his power u/s 17 to get over his own earlier finding. The Appeal No. 22 of 1997 was primarily raising the issue about jurisdiction of the assessing officer to rectify its own order on the basis of a mistake apparent from record, which the Tribunal answered in negative and rightly so.

Whether the Tribunal could decide the jurisdiction of assessing officer to act u/s 17, independent of its own finding itself is not a mistake apparent from record. That also needs examination of issue about jurisdiction of Tribunal by weighing rival contentions.

No rectifiable error appears from the record of the case which could justify having recourse to rectification of the order dated August 21, 1991 passed in Appeal No. 22 of 1991.

In this view of the matter, I find no force in this revision and the same is hereby dismissed with no order as to costs.

(R. Balia, J.)

The learned counsel for the Revenue sought to urge that limitation of five years u/s 30(3) would commence after the judgment of High Court dated February 11, 2000 and consequently, reassessment order passed by the assessing authority on July 1, 2002 was within limitation.

On the other hand, Mr. J.L. Purohit, senior advocate, urged that not only this court in its judgment dated February 11, 2000 in the case of same assessee had held against the Revenue that it was not a mistake apparent on the face of record and, therefore, section 17 of the Act did not apply but decision of this court could not have given fresh period of limitation to the Revenue and, therefore, the impugned reassessment order dated July 1, 2002 passed by the assessing authority was clearly hit by the limitation of five years prescribed u/s 30(3) of the Act since earlier original assessment order was passed on February 27, 1988 for these two assessment years, assessment years 1984-85 and 1985-86. He, therefore, submitted that the Tax Board was justified in allowing the assessee''s appeals and setting aside the order of the Deputy Commissioner (Appeals). He, therefore, prayed for dismissal of revision petitions filed by the Revenue.

Having heard the learned counsels, this court is of the opinion that the Tax Board was justified in allowing the assessee''s appeals holding that the reassessment order dated July 1, 2002 was hit by limitation of five years prescribed u/s 30(3) of the Act and the original assessment order dated February 27, 1988 could not be reopened. The decision of this court dated February 11, 2000 itself was against the Revenue and Revenue''s revision petition was dismissed, therefore, that judgment obviously could not furnish any cause of action to the Revenue to initiate reassessment proceedings and question of decision of this court dated February 11, 2000 furnishing any further period of limitation could not arise. Since the original assessment order for these two years allowing concessional rate of tax u/s 5CC of the Act was passed on February 27, 1988, the reassessment order passed after five years on July 1, 2002 was clearly time-barred. Therefore, the contention of the learned counsel for the Revenue does not have any substance and is liable to be dismissed and same is accordingly dismissed. The questions of law raised, in the present revision petitions are answered against the Revenue and revision petitions are hereby dismissed. No order as to costs.