Babubhai B. Patel vs The Commissioner of Taxes and Others

G. Mehrotra, C.J.—The Petitioner Babubhai Section Patel carries on business under the name and style of Messrs. Indian Tea Co. in Dibrugarh within the State of Assam. He has challenged the validity of the proceeding taken against him u/s 31(1) of the Assam Sales Tax Act, 1947, as amended in 1962 by notice dated the 11th March, 1963. The Petitioner started his business on the 1st October 1955 and on the 8th December 1955 applied to the Superintendent of Taxes, Dibrugarh for being registered as dealer under the provisions of the Assam Sales Tax Act. 1947 (hereinafter called ''the Act of 1947''). The certificate was granted to him in January 1956 fixing his tax liability from the 1st October 1955. The Petitioner continued his business up to the 17th June, 1961 and closed it thereafter By a letter dated the 20th June, 1961 he applied to the Superintendent of Taxes for cancellation of the Registration certificate which was cancelled with effect from the 18th June. 1961. The Petitioner was assessed to sales tax during all this period. By a notice dated the 11th March 1963 purported to be one u/s 31(1) of the Act of 1947 as amended in 1962 issued from the office of the Commissioner of Taxes, ''Assam, the Petitioner was asked to appear before the taxing authorities for showing cause as to why the assessment orders for the periods ending 30th September 1956. 31-3-57, 30-9-57, 31-3-58, 30-9-58. 31-3-59. 30-9-59, 31-3-60, 30-9-60 and 31-3-61 passed by the -. Superintendent of Taxes, Dibrugarh should not be revised, and the price of goods purchased by the Petitioner free of tax for the purpose of resale in the State by giving a declaration under Rule 80 but subsequently sent outside the State of Assam should not be included in the net turnover u/s 15 (1)(b)(i)(a) The Petitioner objected to the proceedings The objection was not accepted The notice issued on the 11th March, 1963 and the subsequent proceedings have been assailed by the Petitioner on a number of grounds.

Firstly it is contended on behalf of the Petitioner that the amending Act of 1962 by which the present Section 31 was substituted was not retrospective and thus it was not open to the taxing authorities to revise the assessment already made and completed under the purported exercise of powers u/s 31. Secondly it is urged that Section 31(1) of the Act of 1947 is ultra vires of the provisions of the Constitution inasmuch as it infringes Articles 14 and 19 of the Constitution. Thirdly it is urged that the condition precedent for the exercise of the powers by the Commissioner of Taxes u/s 31(1) of the amended Act does not exist in the present case and thus the power was wrongly exercised. Fourthly it is urged that the proviso to Section 15(i)(b) under which the price of goods purchased free of tax was purported to be included in the net turnover was inserted with effect from the 1st October 1957 by the amending Act of 1957 and this, was not given retrospective effect and thus the Commissioner of Taxes, Assam had no jurisdiction, authority or power to revise the assessment order for the periods ending on, the 30th September 1956 31st March 1957 and 30th September 1957. It was fifthly contended that u/s 43 of the Act of 1947 and Rule 62 of the Rules made thereunder, the Assessee is not liable to preserve the records and account books for more than three years and thus the notice in question by which the Petitioner has been asked to produce accounts of more than three years is unenforceable. Lastly it was contend ed that if the Petitioner did not include in his turnover certain sales for which he is liable to pay tax for the period in question it is a case of escaped assessment and action could be taken u/s 19-A of the Act of 1947 and not u/s 31(1).

In the counter-affidavit the points of law raised by the Petitioner have been assail-ed. It is pointed out that this Court in the case of Ramesh Chandra Dey Vs. The State of Assam and Others, held that Rule 80 of the Assam Sales Tax Rules, 1947 as amended was ultra vires. This judgment of this Court was set aside by the Supreme Court. So long as the judgment of the court was effective, assessments under the Sales Tax Act were made on the basis of the decision of this Court. But after the judgment had been reversed by the Supreme Court steps were taken to revise the relevant assessments by taking recourse to the provisions of Section 19-A or Section 31(1) of the Act of 1947 as the case may be.

At this stage certain provisions of the Assam Sales Tax Act may be set out. Section 3 of the Act of 1947 is the charging section. Section 5 provides that the tax shall be charged at the specified rate for each category of goods on the total net turnover of a dealer. Section 9 provides for the registration of a dealer who is liable to sales tax. Section 15 lays down as follows:

The net turnover shall be determined by deducting from a dealer''s gross turnover during any given period

(1) his turnover during that period on

(a) the sale of goods exempted u/s 6 and Section 7;

(b) sale to a registered dealer of

(i) goods specified in the purchasing dealer''s certificate of registration as being intended by him for

(a) resale in the State.

Only the relevant portion of the section has been quoted above Section 19-A reads as follows:

If, upon information which has come into his possession, the Commissioner is satisfied that any turnover in respect of sales of any goods chargeable to tax under this Act has escaped assessment during any return period or has been under-assessed or assessed at a lower rate or any deduction, has been wrongly made therefrom, he may, at any time within three years of the end of the aforesaid period, serve on the dealer liable to pay the tax in respect of such'' turnover a notice containing all or any of the requirements which may be included in a notice under Sub-section (2) of Section 16 or Sub-section (2) of Section 17 and may proceed to assess or reassess the dealer in respect of such period and the provisions of this Act shall apply accordingly as if the notice were a notice served under that aforesaid sub-section;

Provided that the tax shall be charged at the rate at which it would have been ordinarily chargeable.

Section 31 before the amendment of 1962 stood as follows:

(1) The Commissioner may, either of his own motion or on petition filed within ninety days of the date of the service of the order objected to, call for and examine the records of any proceeding which have been taken under this Act by any person appointed u/s 8 to assist him and revise, subject to the provisions of this Act and after such enquiry as may be deemed necessary, such order;

Provided that no order prejudicial to a dealer shall be passed under this sub-section without giving him a reasonable opportunity of being heard.

(2) Any order passed by the Commissioner under Sub-section (1) shall, subject to the provisions of Section 32, be final.

This section by the Assam Sales Tax (Amendment) Act, 1962 (Assam Act No. 14 of 1962) was substituted as follows:

(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any person appointed u/s 8 to assist him, is erroneous in so far as it is prejudicial to the interests of the revenue, he may; after giving the dealer an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such orders thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.

(2) In the case of any order other than an order which Sub-section (1) applies passed by any person appointed u/s 8 to assist him, the Commissioner may, either of his own motion or on a petition by, a dealer for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such enquiry or cause such enquiry to be made, and subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the dealer, as he thinks fit.

(3) In the case of a petition for revision under Sub-section (2) by a dealer, the petition must be made within ninety days from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier:

Provided that the Commissioner before whom the petition is filed may admit it after the expiration of the period of ninety days, if he is satisfied that for reasons beyond the control of the Petitioner or for any other sufficient cause, it could not be filed within time.

(4) The Commissioner shall not revise any order under this section in the following cases:

(a) where an appeal against the order lies u/s 30 or 31-A but has not been made and the time within which such appeal maybe made has not expired, or in the case of an appeal to the Board, the dealer has not waived his right of appeal; or

(b) where the order is pending on appeal u/s 30; or

(c) where the order has been made the subject of an appeal to the Board.

Explanation. An order by the Commissioner declining to interfere shall, for the purpose of this section, be deemed not to be an order prejudicial to the dealer.

Rule 80 of the Rules framed under the Assam Sales Tax Act reads as follows:

(1) A dealer who wishes to deduct from his gross turnover the amount of sales on the ground that he is entitled to make such deductions under Clause (b) of subsection (1) of Section 15 shall, on demand, produce in respect of such sales the copy of the relevant cash-memo or bill according as the sale is a cash sale or a sale on credit, and a true declaration in writing by the purchasing dealer or by such responsible person duly authorised by the purchasing dealer in this behalf that the goods in question are specified in the certificate of registration of such dealer.

The legislative history of the Assam Sales Tax Act may be set out. In 1951 the Assam Sales Tax Act was amended by the Assam Sales Tax (Amendment) Act 1951 (4 of 1951). Section 15 of the Act before the amendment provided that in calculating the net turnover of a registered dealer for tax purposes all sales made to another registered dealer of goods specified in the latter''s certificate of registration were to be excluded from the gross turnover, if the goods were bought for resale. By the amendment in 1951 the section was amended by the addition of the words ''in the State'' after the words ''resale''. After the amendment thus in calculating the net turnover of a registered dealer, the goods intended for resale in the Stale could alone be excluded from the gross turnover. This amendment was followed by amendment of the Rules. Rule 80 was enacted to provide as follows:

(1) A dealer who wishes to deduct from gross turnover the amount of sales on the ground that he is entitled to make such deductions under Clause (b) of Sub-section (1) of Section 15 shall, on demand produce in respect of such sale the copy of the relevant cash-memo or bill according as the sale is a cash sale or a sale on credit and a true declaration in writing by the purchasing dealer or by such responsible person duly authorised by the purchasing dealer in this behalf that the goods in question are specified in the certificate of registration of such dealer.

(2) for the purposes of this rule, the declaration shall be in the following form:

I/We hereby declare that I/We have purchased the goods herein mentioned for the purposes for use in the manufacture of goods for side in the Stale, or for use in the execution of a contract in the Stale or for re sale in the State and further declare that these goods have been specified in our certificate of registration bearing No. in the District of....

In the case of Stale of Assam v. Ramesh Chandra Dey reported in AIR 1962 SC 107 the High Court of Assam held the amendment and the rule to be ultra vires as it offended Article 286(2) of the Constitution and on appeal to the Supreme Court the decision of this Court was set aside and it was held that the amendment of Section 15 by adding the words ''in the State'' after the word ''resale'' and Rule 80 are intra vires.

The result of the decision of the Supreme Court is that the net turnover of the dealer is to be determined by deducting from the gross turnover the net turnover on sales to a registered dealer of goods specified in the purchasing dealer''s certificate of registration as being-intended by him for resale in the State The counter-affidavit states that as in view of the decision of the High Court the entire turnover on the goods specified in the purchasing dealer''s certificate of registration as being intended by him for resale had been deducted from the gross turnover in order to arrive at the net turnover, after the decision of the Supreme Court the Department took steps for allowing the deduction on the goods meant for resale in the State and not on the goods meant for resale outside the State. In order to correct the assessment of the sales tax, steps were taken by the Department either u/s 31(1) or u/s 19A of the Act of 1947 as the case may be. Section 19-A which is already set out in the earlier part of this judgment, gives full power to the Department to take steps for reassessment in case the tax has escaped assessment or any deduction has been wrongly made from the turnover, It is, therefore, difficult to hold that the present case is not covered by Section 19-A.

According to the case of the Department the turnover on. the goods meant for resale out-side the State has been wrongly deducted from the gross turnover and thus it is a case of deduction wrongly made from the gross turnover of the Assessee and the provisions of Section 19A are fully attracted to such a case. The Assam Sales-Tax (Amendment) Act, 1962 (Assam Act XIV of 1962) received the assent of the Governor, on the 17th July 1962. The Commissioner under the new Section 31(1) on the 17th July 1962 acquired right to call for and examine the record of any proceeding under the Act and if he considered that any order passed therein is erroneous in so far as it is prejudicial to the interests of the revenue, he could after giving an opportunity of being heard to the Assessee or making such inquiry as he deems necessary, pass such orders including an order for fresh assessment The power which the Commissioner is now seeking to exercise is one u/s 31(1) and the main question is whether this amended section can be given retrospective effect. There is no limitation fixed under amended Section 31(1) to reopen the assessment and the contention of the State is that as the amendment relates to procedural laws, ordinarily it should he given a retrospective effect and at any time the Commissioner could invoice the provisions of section; 31(l) in order to examine the correct-ness of the assessment and direct reassessment. The amended section no doubt confers extended revisional power on the Commissioner. But it cannot be said that the provisions are purely procedural and do not affect the rights of the Assessee. The assessment made under the Act is final subject to the right of appeal and revision and subject to the provisions of Section 19-A. If according to the provisions relating to revision and appeal at the time of the assessment no such power was exercisable by the competent authority the assessment became final and it cannot be reopened except under the provisions of Section 19-A. Section 31(1) as amended, cannot be given retrospective effect so as to reopen an assessment which has become final

At this stage some of the cases may he referred to. In the case of AIR 1927 242 (Privy Council) dealing with the amendment made in the Income Tax Act by adding Section 66-A on the right of an Assessee, to file an appeal to the Privy Council against an order of the High Court on a reference u/s 66, it was observed that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute come into force, were final, are provisions which touch existing rights. It was held that if the right of appeal conferred by Section 66-A was made to apply to orders pass-ed prior to the amendment, it will affect final order, as the order had become final before amendment.

In the case of Commr. of (1938) 6 ITR 414 (Privy Council) it was observed by their Lordships of the Privy Council that when once a final assessment is arrived at it cannot be reopened except in circumstances detailed in sections 34 and 35 of The Income Tax Act and within the time limit allowed by those sections. This principle was approved by their'' Lordships of the Supreme Court in the case of Income Tax Officer. V. Circle, Madias v. S.K. Habibullah reported in AIR 1962 SC 918. In this case their Lord ships were concerned with the provisions of Section 35(5) of the Income Tax Act and it was held that Sub-section (5) of Section 36 cannot be given retrospective effect as the provision was not procedural and if the provisions were given retrospective effect they will affect the finality of the assessment already made.

In the case of AIR 1962 SC 918 referred to above the question for Consideration was the effect of Section 35(5) of the Indian Income Tax Act. The facts in this case were that one S.K. Mohideen the Assessee was a partner in two firms Messrs. Dinshaw and Co and Messrs. Palaniappa Chettiar and Co. These firms were registered under the Income Tax Act The Assessee submitted returns of the income and incorporated therein the estimated share of his losses in the two firms for the assessment years 1946-47 and 1947-48. The Income tax Officer, Madras completed the assessment for the two years on February 20. 1950 after adopting the estimates furnished by the Assessee, but he made a note that the losses accepted were subject to revision on ascertainment of correct particulars. The assessment of one of the firms in which the Assessee was a partner for 1946-47 and 1947-48 was completed on the 31st October 1950 and the proportionate share of the Assessee for the losses was computed for the two years. The assessment of the other firm was completed in June 1951 On the receipt of the information of the completion of the assessment of the two firms, the Income Tax Officer, Madras issued on May 4, 1953 notices to show cause why the assessments of the Assessee, for the years 1946-47 and 1947-48 should not be rectified u/s 35 of the Income Tax Act. The assessment for the two years was then revised on March 27, 1954. The Assessee applied to the Commissioner of Income Tax praying for revision of the orders and the Commissioner held that Section 35 was properly invoked for the rectification of the assessments and rejected the applications. The High Court thereafter held that Section 35 was not properly applied and the Income Tax Officer''s order of fresh assessment was set aside, on which the department went up in appeal to the Supreme Court. The department relied upon Section 36(5) in support of the order passed by the Income Tax authorities. By an amendment of the Income Tax Act in the year 1953 which was to be effective from the, 1st April 1952, Section 35(5) was added. The added Section 35(5) was as follows:

35(5) Where in respect of any completed assessment of a partner in a firm it is found on the assessment or reassessment of the firm or on any reduction or enhaneement made in the income of the firm u/s 31, Section 33, Section 33-A, Section 33B., Section 66 or Section 66-A that the share of the partner in the profit or loss of the firm has not been included in the assessment of the partner or, if included is not correct the inclusion of the share in the assessment (sic) the correction thereof, as the case may be shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section. and the provisions of Sub-section (1) shall apply thereto accordingly, the period of four years referred to in that sub-section being computed from the date of the final order passed in the case of the firm.

This sub-section dealt with inclusion of income or correction of the income of a partner in a firm consequent upon assessment or reassessment of the firm of which he was a partner The assessment of the two firms was completed before April 1, 1952, the date on which the new sub-section was added and the argument of the Department that this sub-section gave power in respect of any assessment to rectify it at any time was repelled by the Supreme Court. It was held that Section 35(5) could not be given a retrospective effect. It was held that Section 35(5) is not procedural in character it affects vested rights of the Assessee and thus in the absence of compelling reasons the court would not be justified in giving a greater retrospectively to the provision than is warranted by the plain words used by the Legislature. The Privy Council decision reported in (1938) 6 ITR 414 (Privy Council) which has already been referred to. was approved and it was held that the orders of assessment are, subject to the provisions relating to appeals, revisions, assessment and rectification, final and it is not to the Income Tax Officer to reopen the assessment because he thinks, fit to do so. It was observed that if by the law pre vailing at the time when the assessment of the firm was made, no such result as is contemplated by the new Clause (5) arose to give a larger re irospective operation than is directed, is to ascribe to the Legislature an intention different from the one expressed, and to make a larger inroad upon the finality of the assessment than is permitted by the Legislature.

The power conferred under the new Section 31(1) to order reassessment if the Com-missioner finds the order of assessment detrimental to the revenue, is an additional power given to the Commissioner and such a power could not be exercised retrospectively, so as to affect the final orders. If the Department intended to correct the mistake, proper action could have been taken u/s 19A of the Assam Sales Tax Act. In this view of the matter It is not necessary for us to go into the question as to whether the provisions of Section 31(1) are ultra vires of the Constitution, inasmuch as they infringe the fundamental rights conferred under Articles 14 and 19 of the Constitution. We therefore, allow this petition with costs and quash the notice dated the 11th March 1963 and the subsequent proceedings arising thereunder. Hearing fee is assessed at Rs. 100/-.