Sharad and Co. P. Ltd. vs Commissioner of Sales Tax

Madan B. Lokur, J.—The assessed carries on business of resale of photographic goods and is also registered as a dealer in electronic

goods.

For the assessment year 1990-91 the assessed filed its returns and on 3rd February, 1992, the Assessing Officer, STO, Ward Nos. 35 passed

an assessment raising a demand of Rs. 17,91,802/- against the dealer.

Thereafter, the assessment was reopened and in the reassessment order dated 25th May, 1992, it is stated that it was later on discovered (after

the original assessment order passed) that the dealer was taxed on a lower rate and certain documents sent by the Enforcement Branch also

remained unconsidered inadvertently because of rush of time barred cases. In the reassessment proceedings, the dealer was required to pay tax of

Rs. 2,34,610/- in addition to the demand already created in the earlier assessment order.

Feeling aggrieved, the dealer preferred an appeal which was disposed of by the Additional Commissioner of Sales Tax by his order dated 15th

September, 1993. The assessed filed two appeals, one against the original assessment order and the other against the reassessment order. Both

the appeals were dismissed by the Additional Commissioner of Sales Tax.

The dealer then approached the Appellate Tribunal, Sales Tax in appeal No. 704/STT/93-94 and by an order dated 23rd October, 2002 the

appeal was dismissed.

The assessed then made an application u/s 45(1) of the Delhi Sales Tax Act, 1975 seeking reference of as many as seven questions for the

opinion of this Court. By an order dated 20th March, 2003, the Appellate Tribunal, Sales Tax came to the conclusion that no question of law as

suggested or otherwise needed to be referred to this Court. Accordingly the reference application being Reference No. 28/STT.02-03 was

rejected.

In this petition u/s 45(2) of the Delhi Sales Act, 1975, the assessed has sought the framing of questions of law which arise out of the Tribunal''s

order.

It is submitted that the reassessment itself was invalid since the basis for reopening the assessment was that certain documents received from the

Enforcement Branch remained unconsidered inadvertently because of rush of time barred cases. It is also submitted that both the original

assessment order as well as the reassessment order cannot stand together and one must give way to the other.

We have heard learned Counsel for the parties and are of the opinion that the following two questions of law arise out of the order passed by

the Appellate Tribunal, Sales Tax Delhi:

1) Whether on the facts and in the circumstances of the case, the Appellate Tribunal Sales Tax correctly interpreted Section 24 of the Delhi Sales

Tax Act, 1975 for upholding the reopening of the assessment of the Petitioner on the ground that documents sent by the Enforcement Branch

inadvertently were not considered by the Assessing Officer because of the rush of time barred cases?

2) If question No. 1 is answered in the affirmative, whether on the facts and in the circumstances of the case, two assessment orders can stand

together in respect of the same assessment year?

No other question is pressed or argued.

In view of the above, we issue writ of mandamus directing the Appellate Tribunal, Sales Tax, to refer the aforesaid questions of law for the

opinion of this Court.

The parties will appear before the Appellate Tribunal, Sales Tax for settling the statement of case.

Ten copies of the paper book containing the statement of case as well as all relevant documents be sent to this Court in accordance with the

Rules.

The petition stands disposed of.