{"id":158574,"date":"1964-10-21T00:00:00","date_gmt":"1964-10-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-jaipuria-brothers-co-vs-state-of-uttar-pradesh-a-others-on-21-october-1964"},"modified":"2018-10-14T15:21:15","modified_gmt":"2018-10-14T09:51:15","slug":"ms-jaipuria-brothers-co-vs-state-of-uttar-pradesh-a-others-on-21-october-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-jaipuria-brothers-co-vs-state-of-uttar-pradesh-a-others-on-21-october-1964","title":{"rendered":"M\/S. Jaipuria Brothers Co vs State Of Uttar Pradesh A Others on 21 October, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Jaipuria Brothers Co vs State Of Uttar Pradesh A Others on 21 October, 1964<\/div>\n
Equivalent citations: 1965 AIR 1213, \t\t 1965 SCR (1) 780<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nM\/S.  JAIPURIA BROTHERS CO.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH A OTHERS\n\nDATE OF JUDGMENT:\n21\/10\/1964\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSUBBARAO, K.\nSIKRI, S.M.\n\nCITATION:\n 1965 AIR 1213\t\t  1965 SCR  (1) 780\n CITATOR INFO :\n RF\t    1994 SC2101\t (2)\n\n\nACT:\nU.P. Sales Tax Act (U.P. Act 15 of 1948), s. 21-B Before and\nafter amendment by U.P. Act 19 of 1956-Scope of.\n\n\n\nHEADNOTE:\nThe  sales tax officer made a best judgment assessment\twith\nrespect to the turnover of the appellant under s. 21 of\t the\nU.P.  Sales Tax Act, 1948.  The order was set aside  by\t the\nappellate  authority.  The revisional authority revised\t the\nappellate  order  and  remanded the case to  the  sales\t tax\nofficer\t for  making a fresh assessment.  When\tthe  officer\nissued a notice for assessment, in pursuance of that  order,\nthe  assesee contended that as the original  assessment\t had\nbeen  set  aside, no proceeding in connection  with  it\t was\npending, and that reassessment was barred because, more than\nthree  years  had  elapsed  since the end  of  the  year  of\nassessment.   The  office,,rejected  the  contentions.\t The\nassessee filed a writ petition in the High Court and it\t was\nallowed\t by  a\tSingle Judge.  The  State  appealed  to\t the\nDivision  Bench.   While the appeal was pending, s.  21\t was\nextensively  amended  in  1956\tand  the  legislature\tgave\nretrospective operation to the amended section.\t As a result\nof  the\t amendment, it was provided that  when\tthe  officer\nproceeded   in\tpursuance  of  a  direction  given  by\t the\nrevisional authority, no period of limitation applied.\t The\nDivision  Bench, however, relied upon the unamended  section\nand  set aside the order of the Single Judge, holding,\tthat\neven  under the unamended section, no period  of  limitation\napplied\t when the assessing officer was directed to  proceed\nby  an\torder  of the revisional  authority.   The  assessee\nappealed to the Supreme Court.\nHELD:The appeal should be dismissed.\n   Though the High Court was in error in its  interpretation\nof the unamended section on the principle of Commissioner of\nIncome-tax, Bombay Presidency and Aden v. Khemchand  Ramdas,\n(L.R.<\/a> 65 I.A. 236) still the order of the High Court must be\nconfirmed because of the amendment of 1956.  The words\tused\nby  the legislature in the amended section are\tprecise\t and\nadmit  of  only\t one interpretation,  namely,  that  nothing\ncontained  in the section limits the time from the  year  of\nassessment  within  which proceedings should  be  taken\t for\nassessment  or\treassessment in consequence of\tor  to\tgive\neffect\tto an order of the revisional authority. [783  E--G;\n784 D-E; 785 H; 786 B]\n   Even\t assuming that the amended section applied  only  to\npending\t proceedings, when the revisional authority made  an\norder  after  examining the record directing  the  assessing\nofficer\t to make a fresh assessment, there was a  proceeding\npending before such officer in pursuance of such  direction.\n[786 E]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 830 of 1963.
\nAppeal\tby special leave from the judgment and decree  dated
\nMarch 3, 1960 of the Allahabad High Court in Special  Appeal
\nNo. 3 of 1956.\n<\/p>\n
G.   S. Pathak and S. P. Varma, for the appellants.\n<\/p>\n
781<\/span><\/p>\n
O.P. Rana, for the respondents.\n<\/p>\n
K.   Srinivasan and R. Gopalakrishnan, for the intervener.
\nThe Judgment of the Court was delivered by
\nShah J. The appellants public limited Company–having  its
\nregistered office at Calcutta, was, with effect from October
\n5, 1946, appointed sole agent for sale of goods manufactured
\nby  the\t Swadeshi Cotton Mills Company Ltd.   On  March\t 20,
\n1952, the Sales Tax Officer, Kanpur issued a notice under s.
\n21  of\tthe  U.P.  Sales Tax  Act,  1948  calling  upon\t the
\nappellant  Company to file a return of its turnover for\t the
\nassessment year 1948-49 on the ground that the turnover\t had
\nescaped\t assessment.   On  March 31,  1952,  the  Sales\t Tax
\nOffice.-  made a “best judgment” assessment  and  determined
\nthe  taxable  turnover of the appellant Company, at  Rs.  50
\nlakhs  for the year 1948-49 and determined  the\t appropriate
\ntax liability.\n<\/p>\n
In  the appeal to the Judge (Appeals) Sales Tax,  the  order
\npassed\t  by  the  Sales Tax Officer, was  set\taside,\tthat
\nauthority  holding  that  the appellant Company\t was  not  a
\ndealer\twithin the meaning of s. 2(c) of the Act.   But\t the
\norder of the appellate authority was set aside by the  Judge
\n(Revisions) Sales Tax, by order dated March 28, 1955 and the
\ncase  was  remanded  to the Sales  Tax\tOfficer\t for  “fresh
\nassessment”.   In  the view of the Judge  (Revisions)  Sales
\nTax,  it  was necessary to determine “the ownership  of\t the
\ngoods at the time of their sale”.\n<\/p>\n
The Sales Tax Officer then issued a notice calling, upon the
\nappellant Company to produce its books of account and  other
\nrelevant  documents  on\t July 23, 1955 for  the\t purpose  of
\nassessment  for\t the year 1948-49.   The  appellant  Company
\ncontended  that as the original assessment under s.  21\t had
\nbeen  set  aside  by the Judge\t(Revisions)  Sales  Tax,  no
\nproceeding  in connection with that assessment\twas  pending
\nand  re-assessment was barred because more than\t three\tyear
\nhad  elapsed since the end of the year of  assessment.\t The
\nSales  Tax Officer rejected the contention of the  appellant
\nCompany\t and  insisted that the books of account  and  other
\ndocuments  be produced as directed earlier.   The  appellant
\nCompany\t then  petitioned on September 2, 1955 to  the\tHigh
\nCourt of Allahabad under Art. 226 of the Constitution for  a
\nwrit in the nature of prohibition restraining the Sales\t Tax
\nOfficer, Kanpur, from proceeding with the assessment of\t the
\nappellant   Company for the assessment year 1948-49  and for
\na  writ of certiorari quashing the order dated September  2,
\n1955  of  the Sales Tax Officer, Kanpur and  the  proceeding
\ntaken for re-assess-\n<\/p>\n
782<\/span><\/p>\n
ment  in  pursuance  thereof.\tChaturvedi  J.,\t held\tthat
\nassessment  sought  to\tbe made by  the\t Sales\tTax  Officer
\npursuant  to  the order of the Judge (Revisions)  Sales\t Tax
\n“was clearly barred by the law of limitation” prescribed  in
\nthat  behalf by S. 21 of the U.P. Sales Tax Act.  It was  in
\nthe view of the learned Judge immaterial whether  assessment
\nwas  being made by the Sales Tax Officer suo motu  or  under
\nthe  direction\tof a superior authority if at  the  time  of
\nmaking the re-assessment the period prescribed by S. 21\t had
\nexpired.  The order passed by Chaturvedi J., was reversed in
\nappeal\tby  a Division Bench of the High  Court.   The\tHigh
\nCourt held that the Sales Tax Officer was competent in\tview
\nof the order of remand which directed “fresh assessment”  to
\ncommence fresh assessment proceedings against the  appellant
\nCompany\t and in commencing and continuing those\t proceedings
\nhe was acting in compliance with the directions given  under
\nss. 9 and 10 of the Act which he was bound to carry out\t and
\nto  such  assessment proceedings the  period  of  limitation
\nprescribed  by S. 21 of the Act did not apply.\tAgainst\t the
\norder passed by the High Court reversing the order passed by
\nChaturvedi  J., this appeal has been preferred with  special
\nleave.\n<\/p>\n
The  material  provisions  of the U.P.\tSales  Tax  Act\t are
\nbriefly\t these : S. 9 conferred a power upon the  designated
\nauthority to entertain an appeal against the order passed by
\nthe  Sales Tax authority, and by sub-s. (3) of S. 9  it\t was
\nprovided:\n<\/p>\n
\t      “The appellate authority may, after giving the
\n\t      appellant\t a reasonable opportunity  of  being
\n\t      heard,\n<\/p><\/blockquote>\n
\t      (a)   confirm,  reduce, enhance or, annul\t the
\n\t      assessment, or\n<\/p><\/blockquote>\n
\t      (b)   set aside the assessment and direct\t the
\n\t      assessing\t authority  to pass  a\tfresh  order
\n\t      after such further inquiry as may be directed,
\n\t      or\n<\/p><\/blockquote>\n
\t      (c)  .\t .\t.\t.\n<\/p><\/blockquote>\n
\t      By  sub-s.  (3) of s. 10 as it  stood  at\t the
\n\t      relevant time, it was provided:
\n\t      ” The Revising Authority may in his discretion
\n\t      at any time suo motu or on the application  of
\n\t      the  Commissioner of Sales Tax or\t the  person
\n\t      aggrieved, call for and examine the record  of
\n\t      any  order made by any Appellate or  Assessing
\n\t      Authority\t under this Act, for the purpose  of
\n\t      satisfying  himself  as  to  the\tlegality  or
\n\t      propriety\t of  such order and  may  pass\tsuch
\n\t      order as he thinks fit:\n<\/p><\/blockquote>\n
\t      783<\/span><\/p>\n
\t      Provided\tthat  no such application  shall  be
\n\t      entertained  in any case where an\t appeal\t lay
\n\t      against the order, but was not preferred.”
\n\t      Section  21 as it stood at the  relevant\ttime
\n\t      provided:\n<\/p><\/blockquote>\n
\t      “Where  the whole or any part of the  turnover
\n\t      of  a  dealer  has, for  any  reason,  escaped
\n\t      assessment  to tax in any year, the  Assessing
\n\t      Authority “may, at any time within three years
\n\t      from  the\t expiry\t of such  years,  and  after
\n\t      issuing  notice to the dealer and making\tsuch
\n\t      enquiry  as may be necessary, assess  the\t tax
\n\t      payable on such turnover.”\n<\/p><\/blockquote>\n
  In the view of the High Court s. 21 which imposed upon the
\nAssessing  Authority  duty to exercise his power  to  assess
\nturnover  which escaped assessment within three\t years\tfrom
\nthe end of the year of assessment applied only to the  order
\nwhich the Assessing Authority made suo motu : where, he\t was
\ndirected  to,  proceed\tby  an order  of  the  appellate  or
\nrevisional  authority under ss. 9 and 10 of the Act  to\t re-
\nassess, the period of limitation has no application.
\n   In  our view the High Court was in error in\tso  limiting
\nthe operation of s. 21.\t That section imposes a\t restriction
\nupon  the  power of the Sales Tax Officer: that\t officer  is
\ncompetent  within  three years next succeeding the  date  to
\nwhich the tax relates to assess tax payable on the  turnover
\nwhich  has  escaped assessment.\t But the  section  does\t not
\nprovide\t expressly, nor is there any implication,  that\t the
\nperiod\twithin which re-assessment may be made applies\tonly
\nto  those cases where the Sales Tax Officer acts on his\t own
\ninitiative and not pursuant to the directions of the  appel-
\nlate or the revisional authority.  In our view the principle
\nof  the\t judgment of the Privy Council\tin  Commissioner  of
\nIncome-tax,  Bombay Presidency and Aden v. Khemchand  Ramdas<\/a>
\n(a  firm) (1) applies to this case.  In Khemchand’s  case(1)
\nthe  tax-payer was assessed as a registered firm to  income-
\ntax  by\t order dated January 17, 1927 for the  year  1926-27
\nunder  s. 23(4) of the Income-tax Act.\tUnder the Act as  it
\nthen  stood, a registered firm was not liable to pay  super-
\ntax  and was liable to income-tax at the maximum  rate.\t  On
\nJanuary\t 9, 1928 the Commissioner of Income-tax In  exercise
\nof powers of revision under s. 33 of the Act issued a notice
\nto the assessee requiring him to show cause why the order of
\nthe Income-tax Officer granting registration of the firm and
\nassessing it on that footing should not be set aside, and by
\norder  dated  February\t13,  1928  ordered  cancellation  of
\nregistration and
\n(1)  (1938) L.R. 65 T.A. 236.\n<\/p>\n
784<\/span><\/p>\n
.directed  the Income-tax Officer to take  necessary  action
\nthereupon.  On May 4, 1929, the Income-tax Officer  assessed
\nto   super-:tax\t the  assessee\ton  the\t footing  that\t its
\nregistration  was  cancelled. authority\t of  the  Income-tax
\nOfficer\t to  assess  was challenged.  It  was  held  by\t the
\nJudicial  Committee that as the Income-tax Officer had\tmade
\nthe  order imposing super-tax on the assessee more than\t one
\nyear after the earlier demand in respect of income-tax,\t the
\n,order\twas  without jurisdiction.  The\t Judicial  Committee
\npointed\t out that once a final assessment has been made,  it
\ncannot\tbe  ,reopened by the Income-tax Officer of  his\t own
\nmotion,\t or at the direction of the Commissioner  exercising
\nhis  powers under s. 33 of the Indian Income-tax Act,  1922,
\nexcept\tin the circumstances and within the time  prescribed
\nby ss. 34 and 35 of the Act.  They observed that ss. 34\t and
\n35 were exhaustive and prescribed the only circumstances  in
\nwhich,\tand the only time in which, such  fresh\t assessments
\ncould  be made and fresh notices of demand could be  issued.
\nAs the Income-tax Officer took no fresh step within one year
\nunder the statute, he was “hopelessly out of time  whichever
\nof the two sections was applicable”.\n<\/p>\n
But  the  order of the High Court must still  be  confirmed,
\nbecause\t during the pendency of the proceeding in  the\tHigh
\nCourt s.  21  was  extensively\tamended.   The\tsection\t  as
\namended by Act 19   of\t1956  from  May 28,  1956  reads  as
\nfollows:\n<\/p>\n
\t      “(1) If the assessing authority has reason  to
\n\t      believe  that  the whole or any  part  of\t the
\n\t      turnover\tof  a dealer has,  for\tany  reason,
\n\t      escaped  assessment to tax for any  year,\t the
\n\t      assessing authority may, after issuing  notice
\n\t      to the dealer, and making such enquiry as\t may
\n\t      be necessary, assess or re-assess him to tax:
\n\t      Provided that the tax shall be charged at\t the
\n\t      rate  at which it would have been charged\t had
\n\t      the  turnover not escaped assessment, or\tfull
\n\t      assessment, as the case may be.
\n\t      Explanation.-Nothing in this sub-section shall
\n\t      be  deemed to prevent the assessing  authority
\n\t      from  making an assessment to the best of\t its
\n\t      judgment.\n<\/p><\/blockquote>\n
\t      (2)   No order of assessment under sub-section
\n\t      (1)  or under any other provision of this\t Act
\n\t      shall  be made for ,any assessment year  after
\n\t      the expiry of four years from the end of\tsuch
\n\t      year.\n<\/p><\/blockquote>\n
\t      Provided\tthat  where the\t notice\t under\tsub-
\n\t      section  (1) has been served within such\tfour
\n\t      years  the assessment or re-assessment  to  be
\n\t      made in pursuance of such
\n\t      785<\/span>
\n\t      notice may be made within one year of the date
\n\t      of  the  service\tof the notice  even  if\t the
\n\t      period of four-years is thereby exceeded:
\n\t      Provided\tfurther\t that nothing  contained  in
\n\t      this  section limiting the time  within  which
\n\t      any  assessment or re-assessment may be  made,
\n\t      shall apply to an assessment or  re-assessment
\n\t      made in consequence of, or to give effect\t to,
\n\t      any finding or direction contained in an order
\n\t      under section 9, 10, or 11.\n<\/p><\/blockquote>\n
\t      Explanation.-\n<\/p><\/blockquote>\n
Under the terms of s. 21 (1) as amended where the  assessing
\nauthority  has\treason\tto  believe that  any  part  of\t the
\nturnover has or any reason escaped assessment to tax for any
\nyear, he may make Assessment within four years from the\t end
\nof  the year in which the turnover has\tescaped\t assessment.
\nThe  rule is, however, subject to two exceptions:  (i)\twhen
\nnotice\tunder sub-s. (1) has been served within\t four  years
\nthe  assessment or re-assessment to be made in pursuance  of
\nsuch  notice may be made within one year of the date of\t the
\nservice\t of the notice even if the period of four  years  is
\nthereby\t exceeded; and (ii) that, nothing contained in s  21
\nwhich  limits  the time within which any assessment  or\t re-
\nassessment  is\tto  be made applies  to\t assessment  or\t re-
\nassessment made in consequence of, or to give effect to, any
\nfinding\t or direction contained in an order under ss. 9,  10
\nor  11.\t Therefore where the Sales Tax Officer\tproceeds  in
\npursuance of a direction given by the appellate or  revising
\nauthority  or  under an order made by the High\tCourt  in  a
\nreference  under s. II, the period of limitation  prescribed
\nby  sub-s.  (2) of s. 21 does not apply.  This\tsection\t was
\nincorporated in the Act by s. 15 of the amending Act,  which
\nenacted:\n<\/p>\n
\t      “For  section  21\t of the\t Principal  Act\t the
\n\t      following\t shall\tbe and be always  deemed  to
\n\t      have been substituted: ”\n<\/p><\/blockquote>\n
The  amended  section was therefore to be deemed  to  be  in
\noperation  at all material times since the enactment of\t the
\nU.P. Sales Tax Act 15 of 1948.\tThe Legislature has given  a
\nclear retrospective operation to the amended section as from
\nthe date on which the principal Act came into operation, and
\ncorrectness  of the order of the Sales Tax  Officer  holding
\nthat there was no bar of limitation to the making of a fresh
\nassessment  pursuant  to  the  order  of  the  appellate  or
\nrevising authority had to be adjudged in the light of s.   21
\nas  amended  by\t Act  19 of 1956.  The\twords  used  by\t the
\nLegislature are precise and admit of only one interpretation
\nthat
\n786<\/span>
\nproceedings   taken  for  assessment  or  re-assessment\t  in
\nconsequence  of,  or  to  give effect to  an  order  of\t the
\nappellate  or revising authority or an order passed  by\t the
\nHigh  Court  under s. 11 may be\t taken\tnotwithstanding\t the
\nexpiry of the period prescribed by sub-s. (2) of s. 21.
\n   Mr.\tPathak\ton behalf of the appellant  Company  pleaded
\nthat  even  if that be the true interpretation of s.  21  as
\namended,  the section could only apply to proceedings  which
\nwere  pending at the date on which the Act was amended,\t but
\nin   law  no  proceeding  was  pending\tbecause\t the   Judge
\n(Revisions)  Sales  Tax\t had no power to  direct  after\t the
\nexpiry of the period prescribed under s. 21 as it originally
\nstood  to  make a fresh assessment in respect  of  the\tyear
\n1948-49.   There are two clear answers to this plea,  either
\nof  which  is  sufficient  to  reject  it.   The  revisional
\nauthority had under s. 10(3) power to make such order as  he
\nthought\t fit after calling for and examining the  record  of
\nany order made by an appellate or an assessing authority and
\nafter satisfying himself as to the legality or propriety  of
\nsuch  order.   Even assuming that the  revisional  authority
\ncame  to  a conclusion which was erroneous in  law,  it\t was
\nstill  an order which he had jurisdiction to make  and\tthat
\norder  unless set aside in a proper proceeding could not  be
\nignored\t on the ground of lack of jurisdiction.\t There\twas,
\ntherefore, a proceeding pending before the Sales Tax Officer
\nin pursuance of the direction given by the Judge (Revisions)
\nSales  Tax who had directed the Sales Tax Officer to make  a
\nfresh assessment.  Whether in pursuance of this direction, a
\nfresh  assessment  could be made under s. 21 before  it\t was
\namended,  need\tnot detain us.\tWe are\tconcerned  with\t the
\njurisdiction  of  the revising authority to make  the  order
\nthat  he did under the section as it stood amended, and\t not
\nwith  the competence of the assessing authority to  pass  an
\norder  for  assessment\tunder  the  statute  before  it\t was
\namended.  The other ground is also equally decisive.  By  s.
\n15  of Act 19 of 1956, s. 21 of the Act as amended, must  be
\ndeemed to have been on the statute book on the date on which
\nthe  revising  authority passed his order,  and\t under\tthat
\namended\t provision the power of the assessing  authority  to
\nassess\tor  re-assess pursuant to an order of  the  revising
\nauthority was not lost when the period prescribed by  sub-s.
\n2  of s. 21 for assessment or re-assessment expired.   Under
\ns.  21,\t before it was amended, there could be no  order  of
\nassessment or re-assessment either by the Sales Tax  Officer
\nsuo  motu, or pursuant to the direction of the appellate  or
\nrevising  authority after the expiry of the period of  three
\nyears prescribed by the statute, but under s. 21 as amended,
\nthe power may be exercised by the Sales Tax Officer suo motu
\nwithin four years for assessment or
\n787<\/span>
\nre-assessment.\t That  power could be  exercised  under\t the
\nfirst  proviso\twithin\ta further period of one\t year  if  a
\nnotice under sub-s. (1) was served within four years of\t the
\nend of the year of assessment and without limit of time when
\nit  was\t made in consequence of, or to give effect  to,\t any
\nfinding or direction contained in an order of the  appellate
\nor revisional authority or under an order of the High  Court
\nunder  S.  11.\t In initiating\tproceeding  for\t assessment,
\npursuant  to  the direction of the revising  authority,\t the
\nSales  Tax  Officer  was, by virtue of\tS.  21\tas  amended,
\nsubject to no restrictions as to the period within which the
\norder of assessment could be made.  The order passed by\t the
\nHigh Court must therefore be confirmed.\n<\/p>\n
  The appeal fails and is dismissed with costs.
\n  Appeal dismissed.\n<\/p>\n
sup,\/65-7
\n788<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Jaipuria Brothers Co vs State Of Uttar Pradesh A Others on 21 October, 1964 Equivalent citations: 1965 AIR 1213, 1965 SCR (1) 780 Author: S C. Bench: Shah, J.C. PETITIONER: M\/S. JAIPURIA BROTHERS CO. Vs. RESPONDENT: STATE OF UTTAR PRADESH A OTHERS DATE OF JUDGMENT: 21\/10\/1964 BENCH: SHAH, J.C. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-158574","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. 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