N.N. Mathur, J.
1. In all these three writ petitions under Article 226 of the Constitution of India arising from the judgments of the Rajasthan Taxation Tribunal, Jodhpur dated 27.9.1996 and 18.6.1997 the issue involved is whether the provisions in the Act for determination of tax include re-determination and/or whether such determination can be done as rectification of an error apparent on the face of the record.
2. The writ petitioner Jagdish Rai Mittal held a non-temporary stage carriage permit for the vehicle No. RNC 628 for Hanumangarh to Kheladak route. The scope of the route permit was for five stage carriages with three return services and two shuttle service from Hanumangarh to Ranjeetpura. With effect from 15.1.1990 return services were enhanced to five return services. The District Transport Officer, Sri Ganganagar, hereinafter referred to as 'the A.O.', made the assessment of the subject vehicle for the year ending June, 1989 and issued a certificate on 8.3.1991 in favour of the petitioner to the effect that no amount of tax was outstanding against him. However, the A.O. served a show cause notice on 12.2.1991 calling upon the petitioner to explain as to why his returns be not rejected and tax be not determined and penalty be not imposed. The A.O. passed the re-assessment order on 14.2.1991, which was challenged before this Court by way of a writ petition. On establishment of the Rajasthan Taxation Tribunal, the writ petition stood transferred under Section 15 of the Rajasthan Taxation Tribunal Act, 1995.
3. In reply to the writ petition, the department admitted that initially the scope of the said route was 5 stage carriages with three return services and two shuttle services. The fact of increase with effect from 15.1.1990 was also admitted. However, it was pointed out that there were several complaints against the bus operators that they were not plying their buses on the correct route as mentioned in their permit and evading special road tax for last number of years. The matter was enquired by the District Transport Officer (Enforcement), Head Quarter, Jaipur. It was submitted that the assessment was made before receipt of the enquiry report. It was also submitted that neither they were depositing the special road tax as per the trips shown in the time table nor as per the trips undertaken by them. Their buses were illegally taking extra trips since October, 1987. The assessment proceeded on the basis of the time table granted by the R.T.O. Accordingly, a demand was raised for a sum of Rs. 1,56,664/-. The Tribunal found that there was no provision either in the Act or in the Rules empowering the taxing officer to make re-assessment and, as such, the impugned order of re-assessment was not sustainable. The Tribunal also found that as the special road tax upto 26.1.1989 was assessed under the law, As it then stood, and in view of the clearance certificate, it was also not a case of rectification of an error. The concluding part of the judgment of the Tribunal is extracted as follows:
The writ petition is partly allowed. The reassessment order Annexure P/6 dated 14.2.1991 is quashed so far as it relates to the period upto 26.1.1989 qua the petitioner's bus. The District Transport Officer, Sri Ganganagar (respondent No. 2) will assess the petitioner's bus for the period from 27.1.1989 in accordance with the above quoted provisions of the Act. No. order as to costs.
4. The petitioner assessee filed an application for review under Section 16 of the Rajasthan Taxation Tribunal Act, 1995 for clarification of expression used 'in accordance with the above quoted provision of the Act' appearing in the operative part of the judgment. According to the assessee, the rate of tax was fixed by the notification issued under Section 4-B of the Act of 1951, The assessee invited attention of the Tribunal towards Section 4-B of the Act of 1951, which provides rate of tax and Schedule 'A' which limits the maximum rate of tax. Thus, according to the assessee, it was necessary to make a clarification, directing the District Transport Officer to assess the amount of tax only in accordance with the notification issued under Section 4-B read with items No. 7 and 8 of the Schedule-A of the Act of 1951. The review application was registered as Review Application No. 17/1996. The department also filed a review application pointing out that the order dated 14.2.1991 was not an order of re-assessment. It was simply an assessment order under Section 8-A(2) of the Act of 1951 and Rule 38(ii) of the Rules of 1951. Hon'ble Justice Milap Chandra Jain, Chairman of the Tribunal extracted the order of the District Transport Authority and pointed out that the order itself refers to re-assessment order. Thus, in the opinion of the Hon'ble Chairman, the impugned orders was an order of re-assessment and not an order falling either under Section 8-A (2) of the Act of 1951 or Rule 38(1) of the Rules of 1951. The Hon'ble Chairman also found that there was no apparent mistake on the face of record attracting the provision of Rule 38 i.e. rectification of an error. It was also found that the impugned order of re-assessment cannot be described as an amendment under Sub-Rules (ii) and (iii) of Rule 38. The Hon'ble Chairman also noticed the fact that the S.L.P. filed by the department against the impugned order was dismissed by the order of the Supreme Court dated 27.3.1997. The reference was made to Kabari Pvt. Ltd. v. Shivnath Shraff, 1996 SC 742. Accordingly, the Hon'ble Chairman allowed the review application filed by the assessee in part and rejected the review application filed by the department. Shri J.P. Bansal, learned Judicial Member of the Tribunal, did not agree with the view of the Hon'ble Chairman. In the opinion of the learned Judicial Member, the power to determine the tax includes the power to re-determine under Section 8-A. The learned Judicial Member made reference to Section 23 of the Rajasthan General Clauses Act, 1955, wherein it has been laid down that the power to make or issue orders, rules, regulations, schemes etc. includes the power to add to, amend, vary, rescind such orders etc. Thus, he allowed the application filed by the department. The review application filed by the assessee was also partly allowed. As there was a difference of opinion between the Hon'ble Chairman and the learned Judicial Member, the matter was referred to the bench of three judges. By joining Shri R.K. Nair, learned Technical Member, the larger Bench was constituted. The judgment was prepared by the learned Technical Member Shri Nair. He rejected both the review applications on the ground that the State had filed a Special Leave Petition before the Supreme Court against the judgment of the Tribunal dated 27.9.1996, which was rejected by the order of the Apex Court dated 27.3.1997. He was of the view that the Tribunal's judgment dated 27.9.1996 merged with the order of the Supreme Court and, as such, the review applications did not survive. Following the decision of the Apex Court in State of Maharashtra v. Prabhakar Bhikaji Ingle, : (1996)IILLJ430SC and Sree Narayana Dharma v. Swami Prakasnanda, 1997 (2) UJ (SC) 32, both the review applications were rejected. However, the Hon'ble Chairman did not agree with the views of the Technical Member. He simply expressed saying 'I adhere to my views'. Thus, as per the majority decisions, both the review applications were rejected by the order of the Tribunal dated 29.8.1997. The Miscellaneous Application was filed by the petitioner assessee pointing out that the majority opinion of the three judges bench was only for dismissal of the Review Application No. 20/1997 whereas by accidental slip or inadvertent omission, the majority was recorded as for dismissal of both the applications for review, though the Review Application No. 17/1996 was not even pending before the three judges Bench. The said application was rejected by a detailed order dated 17.11.1997. The State in D.B. Civil Writ Petition No. 377/1998 has challenged the order of the Rajasthan Taxation Tribunal dated 27.9.1996 and prayed that Writ Petition No. 1106/91 (R.T.T. No. 379/1995) filed by the assessee Jagdish Rai Mittal may be dismissed and the order of the assessment dated 14.2.1991 may be affirmed in its entirety. The State has also sought direction to quash the consequential orders dated 18.6.1997 (Annex. 2) and 29.8.1997 (Annex. 7). A further direction has been sought to quash the order dated 17.11.1997. In D.B. Civil Writ Petition No. 187/98, the assessee Jagdish Rai Mittal has sought direction to quash the order dated 17.11.1997 passed by the Rajasthan Taxation Tribunal in Miscellaneous Application No. 12/97. In D.B. Civil Writ Petition No. 3401/97, the petitioner assessee has sought direction to quash the order dated 27.9.1996 and 18.6.1997 passed by the Rajasthan Taxation Tribunal, Jodhpur. A further direction has been sought to quash the assessment order dated 14.2.1991 and the demand notice issued in pursuance thereof.
5. It may be recalled that the Division Bench of the Tribunal comprising of Hon'ble Chairman and the learned Judicial Member differed in their view and, therefore, the matter was heard by a larger bench by adding third member i.e. the learned Technical Member Shri R.K. Nair. The third member was of the view that the Special Leave to Appeal was filed against the judgment of the Tribunal dated 27.9.1996, which was dismissed by the order of the Apex Court dated 27.3.1997. Thus the judgment of the Tribunal dated 27.9.1996 merged with the order of the Apex Court and, as such, the same cannot be reviewed. In view of this, the Bench was not required to enter into the merits of the application and examine the point of dissent between the Hon'ble Chairman and the learned Member. The learned Technical Member Shri Nair has buttressed his views by the two decisions of the Supreme Court viz; State of Maharashtra v. Prabhakar Bhikaji Ingle, : (1996)IILLJ430SC and Sree Narayana Dharma v. Swami Prakasnanda, 1997 (2) U.J. (SC) 32. The controversy on the point has now been settled by three judges Bench of the Apex Court in Kunhayammed v. State of Kerala, reported in : [2000]245ITR360(SC) . Both the judgments referred by the learned Technical Member have been considered in the said judgment. It is held therein that dismissal of Special Leave Petition at the stage of special leave by non-speaking order does not constitute res-judicata and does not culminate in merger of the impugned decision. The Court held that this would not by itself preclude the aggrieved party from seeking relief in writ jurisdiction or review jurisdiction of High Court. It is not in dispute that the Special Leave Petition against the order of the Tribunal dated 27.9.1996 was dismissed at the stage of special leave by a non-speaking order. Thus, the view of the Technical Member that the order under review having meregd with the order of the Supreme Court rejecting the Special Leave Petition, can not be reviewed, is erroneous and not sustainable.
6. Mr. Vinit Kothari, learned Counsel appearing for the department, has brought to our notice another decision of the Tribunal dated 27.8.1997 rendered in Richhpal Singh v. State, wherein the Full Bench by a majority decision has taken the view that the Act and the Rules explicitly provide for re-determination under Section 8-A and Rule 8 and, as such, the controversy as to whether the determination can include redetermination, does not arise. In the opinion of the Tribunal, there are various steps i.e. assessment, determination, demand and payment. Thus, if there is incorrect statement at the first stage leading to the incorrect payment, it can be rectified by re-assessment or re-determination. A demand can be raised for the payment of difference, in case of under payment. The Tribunal further expressed the view that as the re-determination is permissible under the Act and the Rules, the fact that there is no provision for review, is immaterial. The majority view was taken by the two learned members of the Tribunal viz; Judicial Member Shri J.P. Bansal and Technical Member Shri R.K. Nair. The Chairman of the Tribunal, who headed the Bench viz; Justice Milap Chandra Jain (as his lordship then was), adhered to his earlier view rendered in the instant case. By majority, the Tribunal held that the view taken by the two member Bench comprising of Hon'ble Chairman and learned Judicial Member in Jagdish Rai Mittal v. State, was erroneous in law.
7. The conclusion of the Tribunal is extracted as follows:
21. In this view of the matter, the question whether the meaning of the word 'determination' can include re-determination does not raise as the Act and Rules explicitly provide for re-determination in Section 8-A and Rule 8. Sequentially the procedure is assessment, determination, demand and payment and if there is incorrect assessment and consequently incorrect payment the situation can only be rectified by reassessment, redetermination, revised demand and payment of the difference in the case of under payment and of refund in case of over payment. This is precisely what Section 8-A and Rule 8 provide for.
22. Rule 38 in terms speaks of enhancing liability, reducing refund or otherwise increasing the liability of the owner of the motor vehicle which is possible only on redetermination.
23. As, as has been seen, redetermination is permissible under the Act and Rules the fact that there is no provision for review is immaterial.
24. It would be appropriate to take note of a contrary view taken by a two Member Bench comprising the Hon'ble Chairman and the Hon'ble Judicial Member in Jagdish Rai Mittal v. State of Rajasthan and Ors., S.B. Civil Writ Petition No. 1106/91 (RTT No. 379/95) decided on 27.9.1996. The SLP filed by the State came to be rejected in limine by the Supreme Court on 27.3.1997. In that case, it had been held that there was no provision in the Act or Rules for review or reassessment. However, the provisions of Section 8-A and of Rule 8 were overlooked.
8. In order to better appreciate the controversy, it will be apposite to refer relevant provisions of law. Section 4 of the Act of 1951 provides for imposition of tax. Section 4-A provides for levy of surcharge on tax under Section 4. Section 4-B provides for special road tax. The provision reads as follows:
4-B. Special Road Tax.--(1) In addition to the tax and surcharge levied under Sections 4 & 4-A respectively and subject to the rules as may be made by the State Government in this behalf there shall be levied and paid to the State Government a Special Road Tax on all transport Vehicles and such non-transport vehicles as are used for carrying passengers or goods on hire or reward at the rates fixed by the State Government by notification in the Official Gazette not exceeding the maximum rates specified in Schedule-A.
(2) The rates of the special road tax fixed by the notification issued in this behalf under this section in respect of stage carriages, other than those plying exclusively within the municipal or city limits, shall be applicable to and charged on the entire distance required to be covered during the month as per the time table fixed or, where no time table has been fixed, as per the scope fixed for a route by the Regional Transport Authority under the Motor Vehicles Act, 1939 (Central Act 4 of 1939) or by a competent authority under any other law for the time being in force and the tax shall be levied and paid to the State Government accordingly.
9. Section 5 pertains to payment of tax. The relevant part of the provision is extracted as follows:
5. Payment of tax.--(1) Save as otherwise provided by or under this Act and subject to the provisions of Sub-section (5), the tax leviable under Section 4 and Section 4-B shall be paid in advance by every owner or by the person having possession or control of a motor vehicle--
(a) in the form of one-time tax or
(b) annually, or
(c) for one or more quarters of a financial year at the rates fixed by the State Government under Section 4 and Section 4-B....
(4) The tax payable under Section 4-B on a stage carriage or a contract carriage--
(a) plying exclusively within the municipal or city limits shall be paid in advance monthly or quarterly, as the case may be, on or before such date as may be prescribed; and
(b) other than those specified in Clause (a) shall be paid monthly or quarterly in advance or otherwise on or before such date as may be prescribed...
10. This provision is to be read alongwith Rule 4 of the Rules of 1951. The relevant part of the rule is extracted as follows:
4. Mode of payment of tax and procedure thereof.--(a) The tax payable under Section 4 of the Act in respect of all the vehicles and under Section 4-B of the Act in respect of all vehicles other than those Stage Carriages which are plying exclusively within municipal limits or city limit shall be payable in advance to the Taxation Officer by the owner or by any person having possession or control of motor vehicle, or the manufacturer of or dealer of motor vehicle, as the case may be,...
11. Section 8 pertains to the furnishing of declarations and returns. The relevant part of the provision is extracted as follows:
8(1) Subject to the provisions of the rules which may be made in this behalf, the owner or any person having possession or control of every motor vehicle shall make a declaration or return in respect of it in the prescribed form stating the prescribed particulars and shall deliver the declaration or return within the prescribed time to the Txation Officer and shall pay to him the tax which he appears by such declaration or return to be liable to pay in respect of such vehicle...
12. Section 8 has to be read alongwith Rule 6, which is extracted as follows:
6(1)--Every person who either on the commencement of the Act or thereafter on becoming possessed of a motor vehicle, becomes liable to the tax under the Act shall within 15 days of becoming so liable complete, sign and deliver to the Taxation Officer, the declaration or return prescribed by Section 8(1) of the Act...
(3)--Every declaration or return duly completed and signed shall be delivered to the Taxation Officer by the person possessing the motor vehicle in respect of which the declaration or return is made, either personally or by an agent appointed by him for this purpose together with the amount of tax or of instalment of tax due which may be first ascertained from the office' of the Taxation Officer...
13. Section 8-A pertains to determination in certain cases. The provision is extracted as follows:
8-A. Determination of tax in certain cases.--(1) An owner of stage carriage may be required to maintain such accounts as may be prescribed and to submit the same to the Taxation Officer as and when required.
(2) If the Taxation Officer is satisfied that tax has not been correctly paid or the owner has not furnished return or has given inaccurate particulars in the return, he shall after giving the owner a reasonable opportunity of being heard, proceed to determine the amount of tax due and recover the same.
14. Sections 8 & 8-A are to be read with Rule 8, which pertains to verification of declaration and determination of tax. The relevant provision is extracted as follows:
8. Verification of declaration and determination of tax.--The Taxation Officer shall satisfy himself that every declaration or additional declaration presented to him is complete in all respects and that the correct amount of tax or additional tax as the case may be, has been paid, according to the Schedules appended to the Act and in case if any owner of a stage carriage liable to pay monthly tax under Section 4-B fails to submit a return as required under Rule 6 for any month within the time prescribed or if the return submitted by him appears to the Taxation Officer to be incorrect or incomplete, he shall after notice in form MTO and giving a reasonable opportunity of being heard to the owner determine the amount of tax payable by the owner of the period for which return was either not filed or found to be incorrect and shall serve a notice on owner in form MTO along with a certified copy of the order requiring him to pay the tax and penalty so determined forthwith. If the owner fails to pay the determined tax and penalty forthwith or the disputed amount is stayed by the competent authority under Section 14 of the Act, he shall be liable to pay, on the amount of tax not paid or on the amount of tax stayed, if found due later on, as the case may be, simple interest, from the next day following the day of service of demand notice at the rate of 1% per month for the first three months and at the rate of 2% per month thereafter till the default continues.
15. Rule 38 pertains to rectification of mistakes, which reads as follows:
38. Rectification of Mistakes.--(i) with a view to rectify any mistake apparent on the face of the record, the Transport Commissioner, the Appellate Authority or the Taxation Officer may amend any order passed by it or him.
(ii) An amendment which has the effect of enhancing the tax liability or reducing a refund or otherwise increasing the liability of the owner of the motor vehicle shall not be made under this rule unless the authority concerned has given due notice to such owner of its intention so to do and has allowed him reasonable opportunity for being heard.
(iii) No amendment under this rule shall be made after the expiry of four years from the date of the order sought to be amended.
16. Thus, it is evident from the scheme of the Act and the Rules that an owner of the stage carriage is liable to pay monthly tax under Section 4-B. In case he fails to submit the return within the time prescribed or if the return submitted by him appears to the Taxation Officer to be incorrect or incomplete, the Assessing Authority after notice in Form MPO and after giving reasonable opportunity of being heard to the owner, may determine the amount of tax payable by the owner of the period for which the return was either not filed or found to be incorrect. Thus, after the assessment is made, Sub-clause (1) of Section 8 casts a duty on the owner of the stage carriage to maintain such account as may be prescribed and to submit the same to the taxation officer as and when required. Section 8-A only contemplates certain eventualities i.e. tax not correctly paid, not furnishing the return or giving an inaccurate particular in the return. In such circumstances, the taxing officer after notice to the owner and after the opportunity of being heard, may determine the amount of tax due. The provision is infact a part of the assessment proceedings. It is significant to notice that Sub-clause (1) of Section 8-A casts a duty on an owner of the stage carriage to maintain such account as may be prescribed and submit to the taxing officer as and when required. Thus, when an exercise is undertaken by the taxing officer, he can make the assessment on the basis of the return filed and can also direct to produce the accounts. While doing so, if he finds that the tax has not been correctly paid or the owner has not furnished the return or the return filed is inaccurate, he may proceed to determine the amount of tax due. This cannot be equated with the re-assessment where the legislature intended for re-assessment, such provisions are provided and are available as Section 12 in the Rajasthan Sales Tax Act and many other provisions. Rule 38 only provides for the rectification of the error apparent on the face of the record. A re-assessment cannot be permitted under the guise of rectification under Rule 38. In absence of power of re-assessment conferred in the parent Act or even in the Rules, the re-assessment is not possible under the law. It is of-course true that the assessment is a sort of enquiry to ascertain the tax liability, as such, in strict sense not a judicial proceeding, still the law contemplates that he must proceed in a judicial manner and come to a judicial conclusion upon the properly ascertained facts. Thus, the assessing officer exercising the power of assessment under a statute is governed by judicial considerations. Thus, when a taxing officer after following a procedure in a judicious manner, pass an order of assessment, it attains finality and such an order cannot be disturbed, unless the requirement of the law is satisfied. The power of re-assessment is extra ordinary in nature and, as such, it can be taken only in accordance with the provision provided under the Statute. The Hon'ble Chairman of the Tribunal has buttressed his views by two decisions of the Apex Court in Patel Warshi Thakarshi v. Praduman Singhji, : AIR1970SC1273 and Chunni Bai v. Narayan Rao, : [1965]2SCR328 . The relevant observations of the Apex Court are extracted as follows:
These orders passed by the Collector in the exercise of his revisional powers were quasi-judicial and were final. The Act does not empower the Collector to review an order passed by him under Section 76-A. In the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkar's order. The subsequent order dated 17.2.1959 reopening the matter was illegal, ultra vires and without jurisdiction.
17. In view of the aforesaid, we conclude that the majority view taken by the Tribunal in R.P. Singh's, case is erroneous and view taken by the Hon'ble Chairman in Jagdish Rai Mittal's, case by judgment dated 27.9.1996 is correct.
18. Consequently, we allow Writ Petitions No. 187/98 and No. 3401/1997 Jagdish Rai Mittal v. Rajasthan Taxation Tribunal, and set aside the judgment dated 8.6.1997 passed in Review Applications No. 17/96 and 20/96. Accordingly, the subsequent order dated 27.08.1997 of the Full Bench of the Tribunal is also set aside. The law laid down by the Tribunal in Richhpal Singh's, case is not a good law. The writ petition filed by the State is dismissed.