Karamendra Narain Ajai Narain vs Commissioner of Sales Tax

R.L. Gulati, J.—The Additional Judge (Revisions) Sales Tax, Agra, has submitted this statement of the case u/s 11(1) of the U.P. Sales Tax Act for the opinion of this court on the following question of law:

Whether a rectification order, assessing the assessee to tax on an escaped turnover, can be passed in proceedings u/s 22 of the U.P. Sales Tax Act when, direct assessment of the said ''escaped turnover'' has become time-barred u/s 21(2) of the U.P. Sales Tax Act?

The assessee is a firm supplying oil-seeds to Prag Ice and Oil Mills, Aligarh. For the year 1958-59, proceedings u/s 21 of the Act were taken against the assessee, during which the assessee contended that it acted merely as a purchasing agent to Prag Ice and Oil Mills, Aligarh, and, in support of the contention, it produced the accounts as well as filed an affidavit. The Sales Tax Officer accepted the plea of the assessee and passed an assessment order dated 27th February, 1962, holding that the assessee was not liable to sales tax on its turnover of purchases made on behalf of Prag Ice and Oil Mills. Later on, it was discovered that in the affidavit filed by the assessee, it had also been mentioned in paragraph 3 thereof that "the said firm also supplied oil-seeds to Prag Ice and Oil Mills of dealers outside Uttar Pradesh in which the firm acted as selling agents to outside Uttar Pradesh dealers and as purchasing agents to Prag Ice and Oil Mills." The Sales Tax Officer took the view that in respect of the turnover of sales made by the assessee on behalf of the non-resident dealers, the assessee was liable to sales tax and that the original assessment order should be rectified. He accordingly issued a notice u/s 22 of the Act and passed an order under that section on 23rd January, 1965, levying tax on the turnover of sales effected by the assessee on behalf of the ex U.P. principals to Prag Ice and Oil Mills. Against the order passed u/s 22, the assessee went in revision before the Judge (Revisions) who dismissed the same. At the instance of the assessee, this reference has now been submitted to this court.

Section 22 relates to rectification of mistakes and runs as under:

Section 22. Rectification of mistakes.--(1) The assessing, appellate or revising authority may at any time within three years from the date of any order passed by him rectify any mistake apparent on the face of the record of appeal, revision, assessment or refund, as the case may be:

Provided that no such rectification, which has the effect of enhancing the assessment shall be made unless the authority concerned has given notice to the dealer of his intention to do so and has allowed him a reasonable opportunity of being heard.

(2) Where such rectification has the effect of enhancing the assessment, the authority concerned shall serve on the dealer a revised notice of demand in the prescribed form and therefrom all the provisions of the Act and the rules framed thereunder shall apply as if such notice had been served in the first instance.

An order u/s 22 can be passed only to rectify a mistake which is apparent on the face of the record and the limitation for such an order is three years from the date of the order sought to be rectified. In the instant case, the original assessment order was passed on 27th February, 1962. That order could be rectified u/s 22 up to 27th February, 1965. The order of rectification was passed on 23rd January, 1965, and was thus within the period of limitation. Subsection (2) of Section 21 imposes a bar of limitation on an assessment order passed under Sub-section (1) of Section 21 or under any other provisions of the Act and the period of limitation is four years from the end of the relevant assessment year. An order u/s 22 of the Act has its own period of limitation and cannot be governed by the period of limitation prescribed for an assessment order under Sub-section (2) of Section 21.

The learned counsel, however, submits that an order u/s 22 is also an order of assessment and, therefore, the period of limitation provided under Sub-section (2) of Section 21 should also apply to such an order. We do not agree. An order u/s 22 is not an order of assessment, even though it may result in the enhancement of tax. Every order which results in enhancement of tax is not an order of assessment. Section 9 of the Act provides for an appeal against an order of assessment made u/s 7, 7-A, 7-B, 18 or 21. Section 22 is not one of the sections mentioned in section 9 which clearly shows that an order u/s 22 is not regarded by the Legislature as an order of assessment; otherwise there is no reason why an appeal should not have been provided against that order also. In M.M. Parikh, Income Tax Officer, Special Investigation Circle "B", M.M. Parikh, Income Tax Officer, Special Investigation Circle-B, Ahmedabad Vs. Navanagar Transport and Industries Ltd. and Another, , the Supreme Court held that "an order u/s 23A of the Indian Income Tax Act, 1922, as amended by the Finance Acts of 1955 and 1957, made by the Income Tax Officer directing payment of additional super-tax is not an order of assessment within the meaning of Section 34(3) of the Act, and to such an order the period of limitation prescribed u/s 34(3) does not apply." It was further observed that "every order which contemplates computation of income for determination of the amount of tax payable is not an order of assessment within the meaning of the Act: nor does prescribing of procedure for determining and imposing tax liability make it an order of assessment.

Moreover, an order u/s 22 can be passed not only by an assessing authority but also by the appellate and the revising authority to rectify any order passed by them. It cannot be said that every order passed under that provision by any of the authorities concerned would be an order of assessment. The learned counsel for the assessee relied upon certain observations of the Madras High Court in A. Haji Abdul Shukoor and Co. v. State of Madras [1965] 16 S.T.C. 808, to show that an order of rectification is an order of assessment. In that case the original order of assessment was rectified under the corresponding provision for rectification in the Madras General Sales Tax Act (Section 55). The main question involved in that case was as to whether the order of rectification could be the subject-matter of a revision and it was held by the Madras High Court that it could be so because where the rectification resulted in the enhancement of the tax a fresh demand notice was required to be issued to the assessee in accordance with the statutory provision. It is in that connection that their Lordships of the Madras High Court observed at page 812 that such an order would be in substance an order of assessment within the meaning of Section 12 of the Act which dealt with the revisional jurisdiction. There the question was not as to what would be the period of limitation for such an order.

Assuming for the sake of argument that an order u/s 22 sometimes may amount to an order of assessment in the sense that it seeks to levy tax which had not been originally levied, it would be covered by the period of limitation provided u/s 22 and not by the period of limitation provided in Sub-section (2) of Section 21 because such an order of assessment would be a special order which comes into being as a result of the discovery of a mistake apparent on the face of the record. The Legislature has chosen to provide a separate period of limitation for such an order.

It is thus clear that the limitation prescribed for an order of assessment under Sub-section (2) of Section 21 cannot be applied for an order passed u/s 22.

The learned counsel then submitted that in the instant case Section 22 could not be applied because it was a case which in fact fell within the ambit of Section 21 which deals with the assessment of escaped turnover. It is not necessary for us to express any opinion on this aspect of the matter, because the question whether Section 21 applies to the facts of the case has not been referred to us. We are also unable to reframe the question to include this aspect of the matter because it is entirely a different question and the revising authority has refused to refer such a question even though the assessee had in its application u/s 11(1) specifically requested the Judge (Revisions) to make a reference on that question. It was open to the assessee to have made an application to this court u/s 11(4) requiring the revising authority to refer that question also, but that procedure has not been followed with the result that we can only answer the question which has been referred to us.

For the reasons stated above we answer the question in the affirmative against the assessee and in favour of the department. The Commissioner of Sales Tax is entitled to the costs which we assess at Rs. 100. The counsel''s fee is also assessed at the same figure.