Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 1272 (ALL)

SHIV MOHAN SINGH v. COMMISSIONER OF TRADE TAX.

2008-07-08

PRAKASH KRISHNA

body2008
JUDGMENT Prakash Krishna, J. - Heard the counsel for the parties and perused the record. This revision is directed against the order dated March 13, 2008 passed by the Trade Tax Tribunal, Jhansi relevant to the assessment year 1998-99. In the memo of revision, although four questions of law have been framed by the learned counsel for the applicant but during the course of argument, he submits that question No. 1 which is reproduced below is the main question involved in the revision. "Whether, on the facts and circumstances of the case, the order passed by assessing officer dated December 23, 2004 is barred by limitation under section 21(5) of the Act ?" The facts of the case in brief are as follows : It is not in dispute that against an ex parte assessment order, the dealer - opposite party had preferred an appeal before the first appellate authority. The said appeal was allowed by the judgment dated March 29, 2004 (wrongly typed as February 29, 2004) and the matter was restored back to the assessing officer to re-frame the assessment order. Thereafter the assessment order was passed on December 23, 2004. Being aggrieved by the said order the dealer - opposite party preferred an appeal before the first appellate authority. Before the first appellate authority a plea regarding limitation was raised. It was submitted that under section 21(5) of the U.P. Trade Tax Act, 1948 fresh assessment order is required to be framed within a period of six month from the date of receipt of the order by the assessing authority. The submission was that since the fresh assessment order has not been passed within the period of six months, the said assessment order is barred by time. The first appellate authority remanded the matter back to the assessing authority to consider the said plea on the basis of the material available on record. The said order was challenged in the second appeal before the Tribunal. The Tribunal by the order under revision has dismissed the appeal. The first appellate authority remanded the matter back to the assessing authority to consider the said plea on the basis of the material available on record. The said order was challenged in the second appeal before the Tribunal. The Tribunal by the order under revision has dismissed the appeal. Shri Krishna Agarwal, learned counsel appearing for the applicant, vehemently argued that since the very beginning it is contended by the dealer that the copy of the order of the first appellate authority remanding the matter back to the assessing authority was received by the assessing authority on April 6, 2004 and therefore, the fresh assessment order dated December 23, 2004 is barred by time. He submits that the said fact was pleaded in the memo of appeal filed before the first appellate authority. On that basis he submits that the fresh assessment order framed by the assessing authority is obviously barred by time. It is difficult to agree with the aforesaid submission. Section 21(5) read as follows : "If an order of assessment or reassessment for any assessment year is set aside under section 30, a fresh order of assessment or reassessment for that year may be made within six months from the date on which such earlier order was set aside." The date on which the copy of the order of the first appellate authority was received by the assessing authority has to be ascertained first. Unless and until the said point is fixed, it cannot be said that period of limitation has started running. It was also come on record that the plea of limitation after remand was not agitated before the assessing authority. In this view of the matter, I do not find any error in the two orders of the authorities below remanding the matter for fresh consideration of the plea raised by the applicant regarding limitation. There is no merit in the revision. The revision is dismissed summarily.