{"id":193120,"date":"2010-07-15T00:00:00","date_gmt":"2010-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-shree-maruti-cloth-store-vs-unknown-on-15-july-2010"},"modified":"2016-10-23T09:24:10","modified_gmt":"2016-10-23T03:54:10","slug":"ms-shree-maruti-cloth-store-vs-unknown-on-15-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-shree-maruti-cloth-store-vs-unknown-on-15-july-2010","title":{"rendered":"M\/S. Shree Maruti Cloth Store vs Unknown on 15 July, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
M\/S. Shree Maruti Cloth Store vs Unknown on 15 July, 2010<\/div>\n
                              B.P.DAS, J & C.R.DASH, J.\n<\/pre>\n
                 W.P.(C) NO.14629 OF 2008 (Decided on 15.07.2010).\n<\/p>\n
M\/S. SHREE MARUTI CLOTH STORE                          .........        Petitioner.\n\n                                .Vrs.\n\nTHE SALES TAX OFFICER,CUTTACK                    ...........        Opp.Party.\n\nORISSA ENTRY TAX ACT, 1999 (ACT NO. 11 OF1999 ) - SEC.10.\n\n<\/pre>\n
      For Petitioner   –  M\/s. Sri N. Paikray, Sri B.P.Mohanty, Sri A.N.Ray,
\n                        Sri K.K.Sahoo & Sri P.K.Mishra.\n<\/p>\n
      For Opp.Party    - S.K. Patnaik,\n                        Standing Counsel, Commercial Tax.\n\nC.R. DASH, J.        Section-9 of the Orissa Entry Tax Act, as it stood before amendment\n<\/pre>\n
by Orissa Entry Tax (Amendment) Act, 2005 (referred to as “Act” in short) provided
\na limitation of “three years” for reassessment of escaped turn over of a dealer. By the
\naforesaid amendment in question in the year 2005 Section-9 of the Act was substituted
\nby Section-10, in which the provisions of Section-9 were retained, but the period of
\nlimitation of “three years” was substituted by a period of limitation of “five years”. The
\nshort question that arises for determination in the present writ petition is, whether the
\njurisdiction invoked by the opposite party after coming into force of the amendment, has
\ngot to cover a period of limitation up to “five years” preceding next the date of issuance
\nof the impugned notice or the limitation as prescribed in the amended provision is
\nprospective in nature and it would apply only to reassessments onwards from the date of
\ncoming into force of the amendment?\n<\/p>\n
2.      The petitioner is a registered dealer. He deals in sarees under the jurisdiction of
\nthe opposite party. For the period 2003-04 the original assessment under Section-7 of
\nthe Act was completed on 30.12.2006 vide Anenxure-1 computing a refund of
\nRs.1,34,485\/-. The opposite party vide Anenxure-2, issued notice bearing No.458 dated
\n14.01.2008 under Section 9(1) of the Act for the assessment period 2003-04 on the
\nground that a part of the turn over had escaped from assessment in course of the
\nassessment vide Anenxure-1.            The petitioner filed objection before the opposite
\nparty vide Anenxure-3.While matter stood thus, the opposite party again issued notice
\ndated 17.7.2008, vide Anexure-4 in Form-E32 under Rule 15D of the Orissa Entry Tax
\nRules (“Rules” for short) in respect of escaped turn over or under-assessment for the
\nself same assessment period 2003-04. The petitioner filed objection vide Anenxre-5.\n<\/p>\n
3.      The petitioner in this writ petition impugns the action of the opposite party in
\nissuing notice in Form E32 under Rule 15D of the O.E.T. Rules vide Annexure- 4 on the
\nground that the provisions of Section-10 of the Act read with Rule- 15D of the Rules
\nhaving come into force with effect from 19.10.2005, the notice in question vide
\nAnnexure-4 should not have been issued to the petitioner as by the time of issuance of
\nthe impugned notice (Annexure-4 dated 17.7.2008) the period of limitation of three years
\n                                                2<\/span><\/p>\n
prescribed under Section- 9 of the Act towards initiation for reassessment preceding had
\nalready expired. It is the further case of the petitioner that the amended provision shall
\napply only to assessment precedings for the period 2005-06 and onwards, the
\namendment having come into force with effect from 19.10.2005. In other words, it is the
\ncase of the petitioner that the escaped turn over being related to the assessment period
\nfrom 1.4.2003 to 31.3.2004 admittedly the period of limitation prescribed in Section-9 of
\nthe Act     had       already expired by 31.3.2007 and the impugned notice vide
\nAnenxure-4 having been issued on 17.7.2008, issuance of the aforesaid notice itself is
\nillegal and cannot be sustained in the eye of law. With such interpretation in mind
\nlearned counsel for the petitioner submits that the entire re-assessment proceeding is
\nvitiated on the ground of defect and illegality in the notice. In order to substantiate his
\ncontention, learned counsel for the petitioner relies on the cases of The Karimtharuvi
\nTea Estate Ltd. V. The State of Kerala (A.I.R.<\/a> 1966 S.C. 1385) and Reliance Jute and
\nIndustries Ltd. V. Commissioner of Income-Tax, West Bengal<\/a> (1979)120 ITR 921.\n<\/p>\n
4.      Mr. S.K. Patnaik, learned Standing Counsel, Commercial Tax, on the other hand
\nsubmits that the limitation being a matter of procedure is to be made applicable
\nretrospectively and the limitation prescribed under Section-10 of the Act read with Rule-
\n15D of the Rule and Form E32 has to cover a period up to five years preceding the date
\nof issuance of the notice in question. He relies on the cases of C. Beepathuma and
\nothers V. Velasari Shankaranarayana Kedambolithaya and others (A.I.R. 1965 S.C.\n<\/p>\n
241), M\/s. Mysore Rolling Mills (P) Ltd. V. Collector of Central Excise, Belgaum
\n(A.I.R.<\/a> 1987 S.C. 1188) and Additional Commissioner (Legal) and another V. M\/s.
\nJyoti Traders and another etc. (A.I.R. 1999 S.C. 526).\n<\/p>\n
5.      Having heard the parties at length, we are of the view that no authority need be
\ncited for the proposition that rule of strict construction of a taxing statute applies primarily
\nto charging provisions in a taxing statute and has no application to a provision not
\ncreating a charge, but laying down the machinery for its calculation or procedure for its
\ncollection, and such machinery provisions have to be construed by the ordinary rule of
\nconstruction. One of the important consideration in construing a machinery provision is
\nthat it should be so construed as to effectuate the liability imposed by the charging
\nsection and to make the machinery workable- ut res magis valeat quam pereat. In view
\nof such legal position, it is to be found out first, whether the provisions under which the
\nnotice issued has been impugned in the present writ petition, are machinery provisions
\nor charging provisions.\n<\/p>\n
6.      Charging provisions in a taxing statute are those substantive provisions which
\ncreates the charge and provides for levy of tax. Machinery provisions on the other hand,
\nare the provisions providing for procedures to carry out the purpose of the statute.
\nRegard being had to the provisions in amended Section-10 of the Act and Rule-15D of
\nthe Rules, the aforesaid provisions cannot be said to be charging provisions or
\nsubstantive provisions from the point of view of a taxing statute. It is also no more res
\nintegra that limitation is a matter of procedure. In view of such fact no strict construction
\nof Section-10 of the Act and Rule-15D of the Rules can be made.\n<\/p>\n
7.     The ratio in the cases of The Karimtharuvi Tea Estate Ltd. V. The State of Kerala
\n(AIR<\/a> 1966 SC 1385) and Reliance Jute and Industries Ltd. V. Commissioner of Income-
\nTax, West Bengal<\/a> ((1979) 120 ITR 921), as relied on by the learned counsel for the
\n                                             3<\/span><\/p>\n
petitioner, has no application to the present case, as those decisions relate to
\nsubstantive provisions relating to charge of tax and, the Hon’ble Supreme Court, taking a
\nstrict view of the matter in the aforesaid cases, have held that the provisions cannot be
\napplied retrospectively.\n<\/p>\n
8.     Coming to the fact of the present case, it is beneficial to reproduce the relevant
\nSections of the act for a ready reference. Section-10 of the Act has been substituted in
\nplace of section-9 by the Orissa Entry Tax (Amendment) Act, 2005. Prior to the
\namendment Section-9 stood thus:\n<\/p>\n
    [” 9. Payment of tax for entry of goods escaping assessment.-\n<\/p>\n
   (1) Where for any reason all or any of the scheduled goods brought by a dealer has
\n                escaped assessment to tax, the assessing authority may subject to the
\n       provisions of sub-section (3) at any time within a period of three years from
\n       the expiry of the year to which the tax relates, proceed to assess to the best
\n       of his judgment the tax payable on the entry of such goods after issuing a notice
\n       to the dealer and after making such enquiry as he considers necessary.\n<\/p>\n
   (2) In making an assessment under sub-section (1) the assessing authority may, if
\n       he is satisfied that the escape from assessment is due to willful non-disclosure of
\n       the entry of such goods by the dealer, direct him to pay in addition to the tax
\n       assessed under sub-section (1) a penalty not exceeding one and a half times the
\n       tax so assessed:\n<\/p>\n
       Provided that no penalty under this sub-section shall be directed to be paid
\n       unless the dealer affected has been given a reasonable opportunity of showing
\n       cause against such imposition.\n<\/p>\n
   (3) In computing the period of limitation for assessment under this section the time
\n       during which an assessment has been deferred on account of any stay order
\n       granted by any court, shall be excluded.]”\n<\/p>\n
                                                       (Emphasis supplied)<\/p>\n
       After amendment, Section-10, which has been substituted in place of aforesaid
\nSection-9 reads thus:\n<\/p>\n
       [“10. Reassessment in certain cases.-\n<\/p><\/blockquote>\n
    (1)        Where for any reason all or any of the scheduled goods brought by a
\n       dealer has escaped assessment of tax, or where value of all or any of the
\n       scheduled goods has been under-assessed, or any deduction has been allowed
\n       wrongly, the assessing authority, on the basis of information in his possession,
\n       may, within a period of five years from the end of the year to which the tax
\n       period relates, serve a notice on the dealer in such form and in such manner as
\n       may be prescribed and after making such enquiry as he considers necessary
\n       and after giving the dealer a reasonable opportunity of being heard, proceed to
\n       assess the dealer accordingly.\n<\/p><\/blockquote>\n
                                              4<\/span><\/p>\n
     (2)       If the assessing authority is satisfied that the escapement is without any
\n        reasonable cause, he may direct the dealer to pay in addition to the tax
\n        assessed under sub-section (1), by way of penalty, a sum equal to twice the
\n        amount of tax additionally assessed under this section.\n<\/p><\/blockquote>\n
     (3)       Where any order passed by the assessing authority in respect of a dealer
\n        for any period is found to be erroneous or prejudicial to the interest of revenue
\n        consequent to, or in the light of, any judgment or order of any Court or Tribunal,
\n        which has become final and binding, then, notwithstanding anything contained in
\n        this Act, the assessing authority may proceed to reassess the tax payable by the
\n        dealer in accordance with such judgment or order, at any time within a period of
\n        three years from the date of the judgment or order.]”\n<\/p><\/blockquote>\n
                                                        (Emphasis supplied)<\/p>\n<\/blockquote>\n
9.      Section-10 of the Act came into existence with effect from 19.5.2005. The
\npurpose of the provisions is to reassess escaped or under-assessed turn over relating to
\na particular assessment year within a period of “five years” from the expiry of the year to
\nwhich the tax period relates. It is the precise contention of the learned counsel for the
\npetitioner that the tax period for    which     the    petitioner has been reassessed
\nbeing 2003-04, the reassessment for the period in question should have been taken up
\nwithin a period of three years from 2003-04, that means the assessment should have
\nbeen done within the period from 1.4.2003 to 31.3.2007. The impugned notice according
\nto learned counsel for the petitioner, in the present case vide Anenxure-4 having been
\nissued on 17.7.2008, the re-assessment proceeding is barred by limitation as the
\nprovisions in Section-10 has to apply prospectively and not retrospectively.\n<\/p><\/blockquote>\n
10.      The Hon’ble Supreme Court in the case of Mysore Rolling Mills (P) Ltd. V.
\nCollector of Central Excise, Belgaum (AIR<\/a> 1987 SC 1488), on consideration of Sections
\n4, 11, 11-A and 35-L of the Central Excise and Salt Act, 1944 held that once Rules come
\ninto existence and jurisdiction under the Rule is invoked, it has got to cover a period up
\nto five years preceding the date of issuance of the notice. In similar situation the Hon’ble
\nSupreme Court in the case of Additional Commissioner (Legal) and another V. M\/s. Jyoti
\nTraders and another etc. (AIR 1999 SC 526), on consideration of Section 21 and
\ndifferent provisions of U.P. Trade Tax Act, 1948, held that after coming of the
\namendment into force providing a period of limitation of eight years, the assessing
\nauthority has every right to re-open the assessment within eight years preceding the
\ndate of issuance of the notice irrespective of the fact, whether the period of four years
\nunder the old Law had expired or not. The impugned proviso in the aforesaid case was
\ninserted to Section 21(2) of the U.P. Trade Tax Act with effect from February 19, 1991. It
\nprovided for limitation of eight years for re-assessment, which was hither to four years.
\nOn construction of the provisions of the Act and the amended proviso, the Hon’ble
\nSupreme Court in clear term held that the proviso to sub-Section (2) of Section 21 is
\noperative from February 19, 1991 and a bare reading of the proviso shows that the
\noperation of this proviso relates back to and encompasses previous eight assessment
\nyears.\n<\/p>\n
11.    With the aforesaid background of law in mind when the provisions quoted supra
\nare read, it is clearly understood that Section-10 of the Act has extended the limitation of
\n                                              5<\/span><\/p>\n
“three years” to “five years” for initiation of a reassessment proceeding in the case of
\nunder-assessment or escaped turn over. The amendment in the present case is
\nintended to relate back and cover a period of five years from the date jurisdiction under
\nthe Act is invoked. The provision being merely procedural in nature is, therefore,
\nretrospective in operation and bare reading of the provisions of Section-10 of the Act
\nquoted supra, shows that the operation of the same relates back to and encompasses
\nprevious five assessment years from the date of coming into force of the provision. In
\nother words, Section-10 of the Act having come into force on 19.5.2005, it shall relates
\nback to previous five years, i.e., up to the assessment year 2000-01.\n<\/p>\n
12.    Admittedly the notice vide Annexure- 4 in this case has been issued on
\n17.07.2008 and the alleged “escaped turnover” relates to the period 2003-04. Whatever
\nbe the mode of reckoning of the period of limitation, be it “five years” from the end of the
\nperiod 2003-04 or be it “five years” backward from the date of the issuance of the
\nimpugned notice vide Annexure- 4, the initiation of the reassessment proceeding cannot
\nbe held to be barred by limitation.\n<\/p>\n
       In view of the discussions supra, we do not find any merit in the writ petition and
\nthe same is dismissed.\n<\/p>\n
                                                     Writ petition dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court M\/S. Shree Maruti Cloth Store vs Unknown on 15 July, 2010 B.P.DAS, J & C.R.DASH, J. W.P.(C) NO.14629 OF 2008 (Decided on 15.07.2010). M\/S. SHREE MARUTI CLOTH STORE ……… Petitioner. .Vrs. THE SALES TAX OFFICER,CUTTACK ……….. Opp.Party. ORISSA ENTRY TAX ACT, 1999 (ACT NO. 11 OF1999 ) – SEC.10. For Petitioner – […]<\/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":[8,25],"tags":[],"class_list":["post-193120","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nM\/S. 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