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THE COMMISSIONER, TRADE TAX U.P.LOK. versus S/S GLAXO LABORATORIES INDIA LTD. MANJOOR GARHI ALIGARH

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax U.P.Lok. v. S/S Glaxo Laboratories India Ltd. Manjoor Garhi Aligarh - SALES/TRADE TAX REVISION DEFECTIVE No. 480 of 1999 [2006] RD-AH 130 (2 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 55

Trade Tax Revision no. (480) Of 1999.

The Commissioner of Trade Tax, U. P. Lucknow. ... Applicant.

Vs

S/S Glaxo Laboratories India Ltd., Aligarh. ... Opp. Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 09.12.1998 relating to the assessment year 1985-86 under the U. P. Trade Tax Act.

It appears that the Assessing Authority passed an order under Section 7 of the Act, thereafter, a proceeding under Section 21 of the Act was initiated, admittedly, after 31.3.1990 after obtaining approval from the Commissioner of Trade Tax under the proviso to Section 21 (2), thereafter, order under Section 21 of the Act was passed on 31.1.1994.  Dealer filed appeal before the Deputy Commissioner (Appeal), Trade Tax, Agra.  The Deputy Commissioner (Appeal), Trade Tax, Agra allowed the appeal and set aside the order passed under Section 21 of the Act relying upon the decision of this Court in the case of M/S Chopra Diesel Spare and another Vs. State of U. P. and others reported in UPTC 1994 page 115, in which it was held that the initiations of proceedings under Section 21 was barred by limitation.  Against the order of Deputy Commissioner (Appeal), Trade Tax, Commissioner of Trade Tax has filed appeals before the Tribunal.  Tribunal vide impugned order, rejected the appeals and confirmed the order of First Appellate Authority.

Heard learned Counsel for the parties.

The issue involved in the present revision is squarely covered by the decision of Apex Court in the case of Additional Commissioner (Legal) and another Vs. M/S Jyoti Traders and another reported in UPTC 1999 page 45, in which, Apex Court held that the proceedings initiated after the expiry of 31st of March,1990  but before 31st of March, 1994 was within time.  In this view of the matter, decision in the case of M/S Chopra Diesel Spare and another Vs. State of U. P. and others (supra) stand over ruled.  The relevant paragraph of Apex Court decision is referred here-in-below:-

"The two decisions in the cases of The Ahmedabad Manufacturing and Calico Printing Co. Ltd. and Biswanath Jhunjhunwalla and another, are more closer to the issue involved in the present case before us.  They laid down that it is the language of the provision that matters and when meaning is clear, it has to be given full effect.  In both these cases, this Court held that the proviso which amended the existing provision gave it retrospectivity.  When the provision of law is explicit, it has to operate fully and there could not be any limits to its operation.  This Court in Biswanath Jhunjhunwalla case said that if the language expressly so states or clearly implies, retrospectivity must given to the provision. Under Section 34 of the Income Tax Act, 1922, it is the service of the notice which is sine qua non, an indispensable requisite, for the initiation of assessment or re-assessment proceedings where income had escaped assessment.  That is not so in the present case.  Under sub section (1) of Section 21 of the Act before its amendment, th Assessing Authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer according to law.  Sub section (2) provided that except as otherwise provided in this Section, no order for any assessment year shall be made after the expiry of  four years from the end of such year.  However, after the amendment, a proviso was added to sub section (2) under which Commissioner of Sales Tax authorizes the Assessing Authority to make assessment or re-assessment after the expiration of eight years from the end of such year notwithstanding that such assessment or re-assessment may involve a change of opinion.  The proviso came into force w. e. f. 19th February, 1991.  We do not think that sub section (2) and the proviso added to it leave anyone in doubt that as on the date when the proviso came into force, the Commissioner of Sales Tax could authorize making of assessment or re-assessment after the expiration of eight years from the end of the particular assessment year.  It is immaterial if a period for assessment or re-assessment under sub section (2) of Section 21 before the addition of the said proviso had expired.  Here, if is the completion of assessment or re-assessment under Section 21 which is to be done before the expiration of eight years of the particular assessment year.  Read as it is, these provisions would mean that the assessment for the year 1985-86 could be re-opened up to March 31, 1994.  Authorization by the Commissioner of Sales Tax and completion of assessment or re-assessment under sub section (1) of Section 21 have to be completed within eight years of the particular assessment year.  Notice to the assessee follows the authorization by the Commissioner of Sales Tax, its service on the assessee is not a condition precedent to re-open the assessment.  It is not disputed that a fiscal statute can have retrospective operation.  If we accept the interpretation given by the respondents,  the proviso added to sub section (2) of Section 21 of the Act becomes redundant.  Commissioner of Act can be different than the operation of the Act though sometimes both may be the same.  Proviso now added to sub section (2) of Section 21 of the Act does not put any embargo on the Commissioner of Sales Tax not to reopen the assessment if period, as prescribed earlier, had expired before the  proviso came into operation.  One has to see the language of the provision.  If it is clear, it had to be given its full effect.  To re-assure onself, one may go into the intention of the Legislature in enacting such provision.  The date of commencement of the proviso to Section 21 (2) of the Act does not control its retrospective operation.  Earlier the assessment/re-assessment could have been completed within four years of that particular assessment year and now by the amendment adding proviso to Section 21 (2) of the Act it is eight year.  The only safeguard being that it is after satisfaction of the Commissioner of Sales Tax.  The proviso is operative from February 9, 1991 and a bare reading of the proviso shows that the operation of this proviso relates and encompasses back to previous eight assessment years.    We need not refer to the provisions of Income Tax Act to interpret proviso to Section 21 (2) language of which is clear and unambiguous and so is the intention of Legislature.  We are, thus, of the view that High Court was not right in quashing the sanction given by the Commissioner of Sales Tax and notices issued by the Assessing Authority in pursuance thereto."

Respectfully following the decision of Apex Court, order of Tribunal is set aside.  Tribunal is directed to pass appropriate order under Section 11 (8) of the Act.

In the result, revision is allowed.   Order of Tribunal is set aside and the Tribunal is directed to pass appropriate order under Section 11 (8) of the Act.

Dt:02.01.2006.

MZ/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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