Swadeshi Khandasari Udyog and Others vs State of Andhra Pradesh

Jeevan Reddy, J.—These seven tax revision cases can be disposed of by a common order. For the sake of convenience, we may state the facts in T.R.C. No. 43 of 1985 since all the material facts are identical, though the dates of orders may vary from case to case.

The assessment year concerned is 1972-73. The original assessment was made on 19th September, 1973. The turnover relating to jaggery was taxed but at a lower rate. The assessment order is said to have been served upon the assessee on 24th December, 1973. Finding later that jaggery has been taxed at a lower rate than prescribed by law, the assessing authority reopened the assessment and passed a revised order of assessment on 23rd September, 1978. Against this order, appeals were filed but without success. The matter was then brought to this Court, in T.R.C. No. 42 of 1982, etc. One of the contentions urged before this Court was that the order of reassessment was barred by limitation. It was contended that on the facts of the case and also because there was no failure on the part of the assessee to disclose the turnover or any other particulars correctly, the four year period of limitation applies and not the six year period. Since the reassessment was made in this case beyond four year period (though within six years), it was contended, the order of assessment is barred by limitation. This contention was entertained by this Court on that occasion. But it was observed :

"Inasmuch as the adjudication depends upon the material in each case, it is essentially a matter involving facts, it is but appropriate to remit these 12 T.R.Cs. back to the Appellate Tribunal to adjudicate afresh after giving an opportunity to both the parties to let in additional evidence if they so desire."

The matters were accordingly remanded to the Tribunal. The Tribunal considered the question whether it is the four year period or the six year period that applies and held that inasmuch as there was a failure on the part of the assessee to disclose the particulars correctly, it is the six year period that applies. Accordingly, it held that the reassessment is not barred by limitation.

In these T.R.Cs., Mr. P. Venkatarami Reddy, the learned counsel for the petitioners, contended that inasmuch as sub-section (4-A) of section 14 was amended with effect from 17th January, 1978, doing away with the distinction formerly recognised by the said sub-section and providing for a uniform four year period of limitation to be calculated from the date of service of the order of assessment, the reassessment order in these T.R.Cs. - at any rate in T.R.C. Nos. 43 and 52 of 1985 - is barred by limitation. It is contended that whereas formerly sub-section (4-A) calculated the period of four years or six years, as the case may be, from the date of the expiry of the relevant assessment year, the present sub-section (4-A) calculated a uniform period of four years from the date of service of the assessment order sought to be opened. It is submitted that the rules of limitation are retrospective in operation. It is, therefore, contended that the reassessment orders passed in the two T.R.Cs. mentioned above - which are made beyond four years of the date of service of the assessment orders in those cases - are barred by sub-section (4-A).

We do not, however, think it necessary to examine the said contention on merits, since we are not inclined to allow the petitioners to raise this contention. This contention was not raised on the earlier occasion before this Court. Had this contention been raised, the very remand would have been unnecessary. The only contention then urged was that it is the four year period that applies and not the six year period. The remand therefore, must accordingly be construed as confined to that question. In any event, even before the Tribunal, the only contention urged was that the four year period applied and not the six year period on the facts of the case. This the Tribunal discussed and on merits found that it is the six year period that applies. If we now allow the petitioners to raise this new contention, the very order of this Court remanding the matter becomes superfluous and meaningless. We cannot, therefore, allow the petitioners to raise a new contention. It is true that the contention raised now also one of limitation. But the basis upon which it is raised is altogether new and as stated above, allowing it to be raised at this stage would make both the order of remand of this Court in T.R.C. No. 42 of 1982 and batch as also the judgment of the Tribunal meaningless and superfluous.

So far as the question agitated before the Tribunal is concerned, we are satisfied, on a perusal of the record and the orders, that the Tribunal was right in holding, on the facts and circumstances of the case, that the six year period of limitation applies and not the four year period. It is indeed essentially a factual finding.

Accordingly, the tax revision cases fail and are accordingly dismissed, but in the circumstances, without costs. Advocate''s fee Rs. 1,000 (consolidated).

Petition dismissed.