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Luna Trading v/s Assistant Commissioner, Circle A, Jodhpur

    Civil Sales Tax Revision No. 512 of 2006

    Decided On, 21 July 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE R.S. CHAUHAN

    For the Petitioner: D.K. Sharma, Advocate. For the Respondent: Lokesh Mathur, V.K. Mathur, Advocates.



Judgment Text

R.S. Chauhan, J.

1. The assessee has challenged the judgment dated 16.02.2005 passed by the Rajasthan Tax Board, Ajmer whereby the learned Board had accepted the appeal filed by the Revenue and had quashed and set aside the order passed by the learned Divisional Commissioner (Appeals) dated 06.12.2003.

2. The brief facts of the case are that the petitioner-firm had sent a signed and authenticated form ST-18 to M/s. Bhagwati Cain Crusher, Biharganj, Muzaffar Nagar for purchasing Jaggery (Gur). However, the said transacti

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on was not mentioned in the accounts kept by the petitioner firm. Therefore, the Assessing Authority carried out a provisional assessment under Section 28 of the Rajasthan Sales Tax Act ('the Act', for short) and directed the petitioner to pay a sales tax of Rs. 6,600/-, Interest of Rs. 1,320/- and a penalty of Rs. 13,200/- vide its provisional assessment order dated 12.01.1999.

3. Since the petitioner was aggrieved by the said order, the petitioner challenged the same before the learned Commissioner (Appeals). During the pendency of the appeal, the final assessment order was passed under Section 29 of the Act. Vide order dated 06.12.2003, the learned Commissioner (Appeals) accepted the appeal ostensibly on the ground that since the final assessment order did not make any mention of the provisional assessment order, therefore, the provisional assessment order loses its significance. According to the learned commissioner (Appeals) it is the final order which would be operational.

4. Since the Revenue was aggrieved by the order dated 06.12.2003, it filed an appeal before the learned Board. vide order dated 16th February, 2005, the learned Board accepted the said appeal ostensibly on the ground that even after the passing of the final assessment order, the provisional assessment order would still be in effect. Therefore, the petitioner could not escape from the liability of paying the tax, Interest and the penalty as directed by the provisional assessment order. Hence, this petition before this Court.

5. Relying upon the cases of CTO (AE) v. Rajasthan Taxation Tribunal, Jodhpur & Anr. [25 Tax World 81 (Raj)], a decision of a learned Division Bench of this Court, and relying upon the case of Shreechand v. Commercial Taxes Officer, Special Circle, Udaipur [100 STC 53], and on the case of Assistant Commissioner, Commercial Taxes, Pali V/s. M/s. Mahaveer Timber Mart [Tax Up-date Vol. (18) Part (2) 45], the learned counsel has contended that the reasoning given by the Tax Board Is contrary to the case of Rajasthan Taxation Tribunal (supra). According to the learned Division Bench, once a final assessment order Is passed, the provisional assessment order merges with the final assessment order. Hence, the provisional assessment order does not survive. Therefore, in the present case, since the final assessment order was passed, the provisional assessment order imposing the payment of the tax and the penalty has merged with the final order. Therefore, the provisional assessment order does not continue to be in effect. Since the final assessment order does not mention the fact about evasion of tax, and since the provisional assessment order has merged with the final order, therefore, the petitioner cannot be required to pay the tax, the interest and the penalty.

6. On the other hand, Mr. Lokesh Mathur, on behalf of Mr. V.K. Mathur, the learned counsel for the Revenue has contended that since the final assessment order did not make any mention about the existence of the provisional assessment order, the provisional assessment order would continue to stand, notwithstanting the final assessment order. Therefore, according to the learned counsel, the provisional assessment order does not merge with the final assessment order.

7. Heard the learned counsel for the parties and perused the impugned judgment and considered the case law cited at the Bar.

8. In the case of Rajasthan Taxation Tribunal (supra), this Court has clearly observed that "in our view, once the final assessment order has been passed, the provisional assessment order dated February 1, 1996 shall be replaced by the final assessment order and that the final assessment order only operates and any recovery to be made has to be adjusted towards the final assessment order." The same view has also been expressed in the case of Shreechand (supra) as well as in the case of M/s. Mahaveer Timber Mart (supra).

9. Considering the consistent pronouncements of this Court, obviously, the reasoning of the Tax Board that notwithstanding the passing of the final assessment order, the provisional assessment order would still be in effect, is unsustainable. Even If the final assessment order, as in the present case, did not make a mention of the provisional assessment order, even then it is the final assessment order which shall prevail. Once the final assessment order is passed, the provisional assessment order cannot be given effect to. For, the latter order has merged with the former order.

10. Since the provisional assessment order has merged with the final assessment order, since the latter order does not mention the provisional assessment order, the provisional assessment order cannot be given effect to. Therefore, the petition Is, hereby, allowed and the order dated 16.02.2005 passed by the Rajasthan Tax Board, Ajmer Is, hereby, quashed and set aside.
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