ORDER
A.M. Sapre, J.
With the consent of parties petition is heard finally.
1. The challenge in this petition is essentially to advance tax notices issued by respondent No. 2, Assistant Commissioner of Commercial Tax in his capacity as an assessing officer under Section 33(3) of the M.P. Commercial Tax Act, 1994. These notices are for the period April 1, 2001 to March 31, 2002, April 1, 2002 to March 31, 2003 and April 1, 2003 to March 31, 2004 respectively asking the petitioner to pay an advance tax amounting to rupees thirty three lakhs, thirty-five lakhs and ten lakhs and fifty thousand respectively.
2. It is not in dispute that the petitioner as a dealer has filed a return for the periods in question as required under Section 26 of the Act stating therein that they are not liable to pay a tax on commodity called coke manufactured from coal. It is on this basis, the case of the petitioner is that they are not liable to pay tax on the commodity in question. This position has been disputed by the State as according to them commodity in question is subjected to tax and, therefore, petitioner is liable to pay tax in accordance with the provisions of the Act. It is contended that since petitioner has failed to pay the tax in accordance with the requirement of the Act and hence recourse to the provisions of Section 33 was taken calling upon the petitioner to pay tax on the basis of the transaction and the details furnished by the petitioner in the returns in question.
3. Having heard learned counsel for the parties and having perused record of the case, in my opinion, the proper course in this case would be to direct the assessing officer to make assessment on the strength of the returns filed by the petitioner and while doing so, also consider the question about the liability to pay the tax by the petitioner on the commodity in question in the light of law laid down by their Lordships of the Supreme Court in the case reported in [1971] 28 STC 603 (India Carbon Ltd. v. Superintendent of Taxes) [1995] 96 STC 204 (State of Bihar v. Universal Hydrocarbons Co. Ltd.) and [1998] 108 STC 258 (K.A.K. Anwar & Co. v. State of Tamil Nadu), and also taking into consideration the legislative changes brought about in the Central Sales Tax Act, 1956 as also other laws having application to the issue. It is necessary because while determining the tax liability, this issue will have to be gone into by the assessing officer and then demand will have to be worked out if it is really payable. This Court would not like to embark upon this question because it requires some factual enquiry to be undertaken at the level of assessing officer and, therefore, it is in the interest of the petitioner as also the Revenue that a categorical finding is returned by the assessing officer while making the assessment as to whether the petitioner is liable to pay any tax on the commodity in question and if so at what rate and how much ?
4. In this view of the matter and in the light of what this Court has observed supra, this petition is disposed of with a direction to the respondent No. 2 to examine the case as aforesaid and accordingly pass consequential assessment orders after granting an opportunity to the petitioner to participate in the assessment proceedings. Let this be done within a period of three months from today. Petitioner shall produce copy of this order before the assessing officer within a week enabling him to ensure compliance of this order within the time specified. In the meantime interim order passed by this Court on December 18, 2003 will continue till the date of assessment order.
C.C. on usual charges.