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2000 DIGILAW 15 (RAJ)

Assistant Commercial Taxes Officer, Sumerpur, Pali v. Ambika Cement Pipe Factory Mundara Distt. Pali

2000-01-05

RAJESH BALIA

body2000
Honble BALIA, J.–These two petitions raise a common question to be determined hence are being heard and decided together. (2). The petitioner has challenged the orders passed by the Rajasthan Tax Board, Ajmer dated 16.7.97 in Appeals No.100/95 and 101/95. These appeals arose out of assessment orders made on 15.01.1994 in respect of assessment period 1982-83 and 1983-84 respectively. The Tribunal has found that these two assessment orders being time barred under sub-section (2) of Section 10B, as the same were not made within two years from the date of appellate order, in of compliance which they were made. The Tribunal has not examined the appeal on merit of the assessment. (3). For determination of the question whether the orders dated 15.1.94 passed in each of the revisions were time barred, the facts necessary for the present purpose may be noticed. In respect of two assessment periods, the original assessment orders were set aside by the Deputy Commissioner (Appeals), Commercial Taxes Department, Jodhpur vide his order dated 16.2.90 and the matter was remanded back to the Assessing Authority namely Assistant Commercial Taxes Officer, Special Ward, Anti Evasion, Jodhpur for framing the on the assessment in accordance with law. This order of Deputy Commissioner (Appeals) was served on the Assessing Officer on 14.03.1992. The files have been transferred from ACTO Special Ward, Anti Evasion, Jodhpur to CTO Pali because Assistant Commercial Taxes Officer at the relevant time lacked the pecuniary jurisdiction on account of the total turn over of the assessee for that period. This is how the assessment orders came to be made by Commercial Taxes Officer. On 13.2.92 (as per assessing officer, and as per order of the Board such orders were made in fact on 14.2.92) orders were made to the best judgment of the Assessing Officer. Thereafter, the dealer moved an application on 19.6.92, for re-opening of those assessment proceedings under Section 10C of the Rajasthan Sales Tax Act, 1954. That application of the assessee was allowed on 7.7.92. Thus the proceedings, again came to life and the finally assessment orders came to be made on 15.1.94 after affording opportunity of hearing to the Assessee. This assessment order dated 15.1.94 was challenged before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur who dismissed the appeals on 30.12.94. That application of the assessee was allowed on 7.7.92. Thus the proceedings, again came to life and the finally assessment orders came to be made on 15.1.94 after affording opportunity of hearing to the Assessee. This assessment order dated 15.1.94 was challenged before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur who dismissed the appeals on 30.12.94. Further appeals against the appellate order has been allowed by the Rajasthan Tax Board, Ajmer, as aforesaid by holding that Assessment Order dated 15.1.94 were not made within two years of the orders passed by Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur and were time barred under Section 10B(2) of the Act. Hence, these two revisions by the Revenue. (4). It may be noticed that during this period the assessee has also challenged the assessment orders dt. 15.1.94 directly before this Honble Court by way of D.B. Civil Writ Petition No. 1502/1994, challenging the vires of Section 10B (1) Clause (iv). Since, the petition of assessee has been allowed by the Rajasthan Tax Board and the assessment order has been set aside at the commencement of the arguments. Learned counsel for the respondent submitted that at this stage, these revisions may be heard on the issue whether the orders dt. 15.1.94 were barred by time. If the orders are held to be barred by the time u/s. 10B (2), the question of vires of provisions of Sec. 10B (i) (iv) may become academic and the said writ petition may become infructuous. (5). It has been contended by the learned counsel for the revenue that once orders were made on 13.03.1992 within two years of the service of appellate order on the Assessing Officer. The provision of Section 10B (2) have operated. Thereafter, if as a result of taking recourse to remedial measures against the order dated 13.03.1992 fresh proceedings have come into existence, the orders made thereafter cannot be held to be time barred with the aid of Section 10B (2). (6). Learned counsel for the respondent joins issue and contends that the order dated 13.03.1992 was not the operative order having been set aside by the Assessing Officer himself. It cannot be taken into consideration and the only order dated 15.1.94 is relevant for the purpose of limitation u/s. 10B(2). The order dated 15.1.94 cannot by any stretch of imagination, be within limitation u/s. 10B (2). (7). It cannot be taken into consideration and the only order dated 15.1.94 is relevant for the purpose of limitation u/s. 10B(2). The order dated 15.1.94 cannot by any stretch of imagination, be within limitation u/s. 10B (2). (7). It was also contended by the learned counsel that order purported to have been made on 13.1.92 itself was beyond limitation, because in fact is has been passed actually on 14.03.1992, as found by the Tribunal and therefore order having been passed beyond limitation on 14.03.1992, the application dated 19.6.92 and any proceedings subsequent thereto cannot be of any avail, as they were wholly superfluous and can have no legal existence. He places reliance in the case of (Jaipur Udyog Ltd. vs. Commercial Taxes Officer, Special Circle, Ajmer (1). (8). Having carefully considered the rival contentions and relevant provisions of the Act, I am of the opinion that these revisions merit acceptance. (9). Section 10B : Prescribed time limit for assessments or orders to be made under various circumstances envisaged under the Act. Sub-section (1) of Section 10(B) governs the period of limitation for completion of assessment proceeding generally in different circumstances by the assessing authority which are pending before him. Sub-section (2): deals with time limit for giving effect to directions of the appellate/revisional authority or to orders passed by respective superior authorities. (10). Section 10B of Rajasthan Sales Tax reads as under, so far as it is relevant for the present purposes. Time limit for assessment-(1) No assessment shall be made- (i) .................. (ii) ................. (iii) ................ (iv) In cases falling under Section 10C-after the expiry of two years from the date of receipt of application from the dealer provided that assessment pending on the date of commencement of the Rajasthan Sales Tax (Amendment) Act 1979 shall be completed within one year from the date of such commencement or within the period specified in clause (iii) or clause (iv) as the case may be, whichever is later; Provided further that the Commissioner may, for reasons to be recorded in writing extend in any particular case, the period specified in this sub-section by a period not exceeding six months. (2) Notwithstanding anything contained in sub-section (1), (i) Where such assessment is made in consequence of or to give effect to, any order of an appellate or revisional authority or reference to the High Court or of a competent court, it shall be completed within two years of the communication of such order to the Assessing Authority and all such assessments pending on the date of commencement of the Rajasthan Sales Tax (Amendment) Act, 1979 shall be completed within one year from the date of such commencement or within two years from the date of communication of such order to the Assessing Authority, whichever is later: Provided that the Commissioner may, for reasons to be recorded in writing in any particular case extend the period specified in this clause by a further period not exceeding six months. (ii) The period, if any, spent in the prosecution of a dealer, from the institution of a complaint to its final disposal or the period during which the assessment proceedings remain stayed, or restrained under the orders of any competent authority or court, shall be excluded in computing the period of limitation under sub-section (1). (11). So far as period for carrying out the direction of the higher forums by the assessing authority is concerned the provisions postulates that such assessment has to be made within two years of the communication of such order to assessing authority. In his discretion, for reasons to be recorded in writing, such period may be extended by the Commissioner in given case by further period not exceeding six months. As in the present case the order passed by the Dy. Commissioner (Appeals) directing the assessing authority to make fresh assessment was communicated to the assessing authority on 14.03.1990 by serving the copy of order on him, in pursuance thereof the order could have been made within two years of that date. There is no doubt that order made on 13.1.92 is to be held within limitation. However it is contended on behalf of the dealer that order made on 14.1.92 was not within two years but beyond two years. According to learned counsel the date on which period commences and the date on which order is made are both to be included in computing the period that prescribes any sort of limitation. (12). However it is contended on behalf of the dealer that order made on 14.1.92 was not within two years but beyond two years. According to learned counsel the date on which period commences and the date on which order is made are both to be included in computing the period that prescribes any sort of limitation. (12). There cannot be any doubt that if the order in the first instance passed in pursuance of the appellate order was beyond limitation, no about of subsequent proceeding could have validated such orders. The orders would be still born in such case, no remedial action was required to be taken by the assessee against such still born orders. (13). However, I am not impressed with the contention raised by the learned counsel for the respondent in this connection that the order ought to have been made b y 13.03.1992 only but this order has been made after 13.03.1992, as in the present case the order has been made in the first instance as a best judgment assessment order dated 14.03.1992 as per the finding of the Tribunal. The orders were time barred in the first instance also and it was not framed within two years from the date of communication. Under the normal rule of computing period of limitation for doing anything, both the days viz. date of commencement of period and the date of termination on which the question action is taken cannot be inclusive. It is well established principle applicable to construction of statutes prescribing time frame for exercising a particular right or prescribing limitation for doing particular act or pursuing remedy against any act is to exclude the first date and include the last. This is founded on principle that time starts to run for the purpose of computation of limitation of any kind after the cause for such computation arises and the date on which such cause arose being only available partially and it cannot be practical to freze the time at which the cause of action arose on the particular date, the first date is to be excluded. This well recognised principle of construction has found recognition by legislation in the form of Section 9 of the General Clauses Act 1987, a central enactment, and under Section 10 of the Rajasthan General Clauses Act 1955. (14). This well recognised principle of construction has found recognition by legislation in the form of Section 9 of the General Clauses Act 1987, a central enactment, and under Section 10 of the Rajasthan General Clauses Act 1955. (14). U/s. 10B(2) (i): the expression used is thus `to complete....within two years of communication of such order to the assessing authority. Obviously, the period of two years can be computed only after the order has been communicated to the assessing authority. The date on which assessing authority has served with the order in consequence of which fresh assessment order is to be made has to be excluded in fixing the date of commencement of period within two years of which the order has to be made. The period of two years would start running from the next date by excluding the date on which communication has taken place. In view of the clear provision of General Clauses Act referred to above and also on general principles of construction in the present case the period of two years within which the order was to be made by the assessing authority in respect of an order communicated to him on 14.03.1990 would start on 15.03.1990 and would end on 14.03.1992 and not earlier thereto. The orders made on 14.3.92 are clearly within the expression `within two years from the date of communication. (15). In a Bench decision of Andhra Pradesh High Court 1970 Andhra Pradesh Page 234 (2), the same view has been expressed. The question arose in the context of Section 106 of the Factory Act 1948 which was couched in the like manner. Section 106 of the Factory Act provided that: No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made `within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. The Factory Inspector visited the Factory on 29.8.66 and lodged a complaint on 29.11.66. The situation was very much like the present case. Like question was raised before the Court that complaint lodged on 29.11.66 was not within the period of three months and therefore the Court has not jurisdiction to take cognizance. The contention was that the word used in the statutes is `of and not `from. The expression `of three months cannot result in exclusion of first date. Like question was raised before the Court that complaint lodged on 29.11.66 was not within the period of three months and therefore the Court has not jurisdiction to take cognizance. The contention was that the word used in the statutes is `of and not `from. The expression `of three months cannot result in exclusion of first date. The Court observed as under: ``Section 9(1) of the General Clauses Act provides that in any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of including the first in a series of days or any other period of time, to use the word `from, and, for the purpose of including the last in a series of days or any other period of time; to use the word `to. But in Section 106 of the Factories Act, the word `from has not been used. It is not stated that the complaint thereof is to be made within three months from the date on which the commission of the offence came to the knowledge of the Inspector, ``but within three months of the date. In Strouds Judicial Dictionary at page 1964 it is stated that `of is sometimes the equivalent of after, e.g. the word ``21 days of the execution means 21 days after the execution. We, therefore, find that the term `within three months of the date in Section 106 of the Factories Act means `within three calendar months after the commission of the offence came to the knowledge of the Inspector. (16). The above interpretation of Andhra Pradesh High Court based on common law as well as on the provisions of the Limitation Act and the provisions of the General Clauses Act results in the exclusion of the day of the knowledge. No distinction was found between the use of word `from a period or `of a period. In the statute with which we are concerned also the expression used is `within two years the communication of such order which is to be read equivalent to within two years after a communication of such order, as explained in Strouds Judicial Dictionary. (17). In re Messrs Hussain AIR Madras 602 (3), in connection with expression of period under Madras Building (Lease and Rent Control Act) (25 of 1949), a similar question arose for consideration. (17). In re Messrs Hussain AIR Madras 602 (3), in connection with expression of period under Madras Building (Lease and Rent Control Act) (25 of 1949), a similar question arose for consideration. S.3 of the Madras Act provided: Gives option to the Accommodation Controller, on receiving a notice from the owner of the house of a vacancy, `to communicate to him within a week, a reply whether he intends to allot the house to a tenant or whether he is not going to exercise the option but allow the owner himself to occupy it. The question was whether communication from the Controller was received by this landlord within a week from his sending the notice to the Controller. The communication was received by the Controller on 7.6.49, and the option letter of Controller reached the landlord on 14.6.49, the like question-whether period of one week ended on 13th June by including 7th June the day of receipt of communication or will end on 14th June by excluding the day of receipt of communication was answered by the Court thus: ``Common sense requires that ``within a week should mean the exclusion of the date of the occurrence as otherwise we would be taking into consideration fractions of a day and calculate practically from the previous day. Then the spirit of this provision is that the Accommodation Controller must have a clear week for making up his mind whether he should allot the house to a tenant or he should not exercise his option. (18). The question that came up before consideration of a Division Bench of Nagpur High Court in Miss Avi J. Cama vs. Banwarilal Agarwal & Co. (4), was with respect to computation of period within which election petition could be filed under City of Nagpur Corporation Act 1948. The expression used in the statute was at any time within 15 days from the date on which the election of a councillor is notified. (19). The contention raised was that both days viz the date of notification of election and the date of filing the petitioner be included in computing the period of Limitation. It was urged that expressed `within fixed both the inward and outward limits of period. The contention was rejected. (19). The contention raised was that both days viz the date of notification of election and the date of filing the petitioner be included in computing the period of Limitation. It was urged that expressed `within fixed both the inward and outward limits of period. The contention was rejected. The Court said: ``Within in relation to time means `in the limits of (a period of time) and `before the end of and `after not more than ...........We are therefore of the opinion that date of notification is used in the expression `from the date on which election of councillor is notified u/s 16 only for the purpose of fixing the posterior limit and not for the purpose of indicating the anterior limit. The word at any time makes it clear that a vote is entitled to make an application at any time after the cause of action occures. (20). These decisions fortify me in conclusion that in computing a period of limitation the period has to be computed, unless contrary is provided, by excluding the first day in a series of days with reference to which the period is to to be computed and the period has to be computed in clear terms after the cause of action arises and by including the date on which the required act is done. The expression `from, `of or `after in that context has been used to indicate same thing. This is also clear from the two expression used in Sec. 10B (2). In fixing the period in respect of cases arising after commencement of provision the statute reads `Within two years of the date of communication and is dealing with the period within which the proceedings are to be completed in respect of cases where cause for such computation had already arisen the expression used `within one year from that date of commencement. It cannot be envisaged that the Legislature intended two different principles for computation of period for the same purpose so as to exclude operation of Sec. 10 of Rajasthan General Clauses Act. (21). It cannot be envisaged that the Legislature intended two different principles for computation of period for the same purpose so as to exclude operation of Sec. 10 of Rajasthan General Clauses Act. (21). As a result the aforesaid discussion I am of the view that in computing period of limitation computing u/s. 10B the date on which relevant order is communicated to the Assessing Authority has to be excluded and the computing of two years must commence from the next date and the date on which the order is made is to be included viewed from any angle the order even if passed on 14 March, 1992 in pursuance of the order of appellate authority communicated to the assessing authority on 14.03.1990 was within the limitation and that cannot be condemned as having been made beyond time is stillborn, having no life. Contention to that effect of the learned counsel for the respondent is rejected. (22). I am unable to hold that original assessment order in the first instance itself were time barred. As I have come to conclusion that the order even if made on 14.3.92 is also within limitation I do not propose to examine the question whether order in first instance was infact made on 13.3.92 or 14.3.92. (23). The orders made even on 14.03.1992 were within limitation from the date of communication of appellants order to the assessing authority. Thus question of holding the first order to be time barred and giving no jurisdiction to proceed further in the matter also needs no further consideration. (24). The next question arising for consideration is that when the order dt. 13.03.1992/14.03.1992 was set aside u/s. 10C, should order dated 14.3.92 be deemed to have been obliterated for all purposes and cannot at all be taken into consideration for the purpose of limitation under section 10B. The question answers itself on perusal of Section 10B. Once an order complying with directions in appellate/revisional order comes into existence within the period of limitation, it is not a dead order but is fully operative order, unless the assessee extricates himself from it by taking recourse to remedial measures. The remedy could have been taken many possible courses. The question answers itself on perusal of Section 10B. Once an order complying with directions in appellate/revisional order comes into existence within the period of limitation, it is not a dead order but is fully operative order, unless the assessee extricates himself from it by taking recourse to remedial measures. The remedy could have been taken many possible courses. It could have been taken by way of appeal before the appellate authority, or by way of revision before revisional authority, or by way of rectification proceeding, or could be by invoking extraordinary jurisdiction of this Court, or Supreme Court or by having recourse to application u/s. 10C for re-opening of best judgment assessment. The fact remains that recourse to Section 10C is to the directed to an operative order and to get rid of its effect. In the absence of the proceedings u/s. 10C the order dated 13th/14.03.1992 was an operative order, unless it was set aside in accordance with law. The fact that application u/s. 10C succeeded, does not make it any less a case of compliance of the direction, in the first instance in pursuance of the order dated 16.2.90 passed by the appellate authority for framing fresh assessment order. That order stood complied with when the order was made on 13th/14.03.1992. It was a operative order which was within the limitation u/s. 10B. Thereafter followed the proceeding taken by the assessee, for nullifying its effect in accordance with law in the manner provided under law. The order dt. 13th/14.03.1992 was equally subject to other provision of the Act of 1954, which included its susceptibility to remedial measures taken by the aggrieved party. (25). In this connection it may be pertinent to notice that Clause (iv) of Section 10B (1) which envisages that where a best judgment is re-opened u/s. 10C thereafter, on reopening of completed assessment, fresh assessment has to be completed within the period prescribed therein, that is to say that `not after the expiry of two years of receipt of application from dealer. In the present case on a valid order having come into force on 13th/14.03.1992, the assessee made an application u/s. 10C on 19.6.92. In the present case on a valid order having come into force on 13th/14.03.1992, the assessee made an application u/s. 10C on 19.6.92. When that application was allowed and the matter was reopened his case had to be considered u/s. 10B (1)(iv) and any order by the assessing officer ought to have been made, not after the expiry of two years from 19.6.92. Admittedly the assessment order after the proceeding came into existence u/s. 10C were made on 15th Jan, 1994. Such order has to be considered on the yardsticks of Section 10B(i)(iv) and if so considered are obviously within limitation. (26). The contention of the learned counsel for the petitioner that Section 10B (i) (iv) and Section 10 B (ii) are incongruous and cannot operate in same proceedings is also not sustainable in asmuch as both the provisions operate in different circumstances. While Section 10B operates in respect of order which comes into existence in compliance of the direction contained in an order of appeal or revision on reference made to the High Court or any other competent Court, the provision of Section 10B (i)(iv), comes into operation where any authority makes an operative order on best judgment basis and after an operative order comes into existence the assessee seeks its reopening on showing sufficient cause for the same. In that event an operative order, which has come into existence in time, come to an end and a new field of provision governs the further proceedings. It is only when an operative order is set aside and new order is required to be made that Sec. 10B (i)(iv) comes into force for the purpose of computation of period of limitation for the purpose of completion of proceeding thereafter. Therefore, in my opinion no conflict exists between two provisions which may warrant consideration of this, supposed conflict between two provisions. No conflict really exists. (27). Taking any other view will render 10B(1)(iv) redundant. A proceeding u/S. 10C will come in existence only when an order already comes to exist anterior to it and that needs to be set aside by order u/s. 10C, the period for making such anterior order may be covered by any other provision than Sec. 10B(1)(iv), either u/s. 10B(1) or 10B(2). Taking any other view will render 10B(1)(iv) redundant. A proceeding u/S. 10C will come in existence only when an order already comes to exist anterior to it and that needs to be set aside by order u/s. 10C, the period for making such anterior order may be covered by any other provision than Sec. 10B(1)(iv), either u/s. 10B(1) or 10B(2). The effect of the contention raised by learned counsel will be that in all cases when an order u/s. 10C is made the order is stillborn and the fresh order thereafter would still be governed as if the order is being made in the first instance. If the original order is made as regular assessment or otherwise as reassessment it will not make any difference on the principle urged by learned counsel. The obvious consequence will be that in all cases the period will have to be computed as if proceedings u/s. 10C have not taken place. Not only this, in many cases it will be impossible for any dealer to avail the remedy of setting aside best judgment order u/s. 10C, even if the existence for exercise of such power is shown to exist, and he shall have to suffer such best judgment orders like in the present case, when the order is made on the last date of expiry of period prescribed for making such order. If setting aside of such order u/s. 10C results in that no fresh order can be made, it shall not only make provision of Sec. 10B (1)(iv) redundant but very provision of making available a remedy to a dealer of setting aside a best judgment order and get an opportunity to explain his case unworkable. An interpretation which renders any part of statute redundant and also renders a provision wholly unworkable cannot be accepted. (28). The petitions, therefore succeed and are hereby allowed. The orders of the Rajasthan Tax Board under challenge are set aside. (29). The Rajasthan Tax Board shall now decide the appeals on merit in accordance with law by considering the order dt. 15.1.94 to be in limitation.