Whirlpool of India Ltd. and anr. Vs. Deputy Commissioner, Commercial Taxes and ors. - Court Judgment

Excerpt:
- orderkalyan jyoti sengupta, j.1. by consent of the parties the application is treated as on the day's list.2. mrs. seba roy, learned lawyer appearing on behalf of the deputy commissioner, submits that she does not want to file affidavit-in-opposition as the records made available before me are sufficient to take up this matter finally. so i do. i have gone through the impugned order which is sought to be challenged. the impugned order seeks to reopen the assessment of the petitioner's case. bereft of two other points, i am of the view that this impugned order is not liable to be sustained. under section 11-e(2) the commissioner can reopen only on a certain situation which are set out hereunder :sub-section (2) of section 11-e is quoted hereunder :(2) where the commissioner is satisfied on information or otherwise that a registered dealer,--(a) has concealed any sales or particulars thereof, or(b) has furnished incorrect statement of his turnover or incorrect particulars of his sales in the return submitted under section 10 or otherwise, relating to an assessment made under sub-section (1) which has resulted in reduction of the amount of tax payable by him under this act in respect of any of the periods, the commissioner shall, subject to such conditions as may be prescribed, within six years from the date of such assessment, reopen in the prescribed manner the assessment for such period and, after giving such dealer a reasonable opportunity of being heard, make fresh assessment under sub-section (1) of section 11 for such period to the best of his judgment.3. i have gone through the impugned order and i do not find, to my utter surprise, that any of such conditions having been fulfilled before embarking upon to reopen the assessment.4. i am of the further view that until and unless there is finding of the deputy commissioner that he is satisfied that the dealer concerned has concealed any sales or particulars thereof, or has furnished incorrect statement of his turnover or incorrect particulars of the sales in the return submitted under section 10 or otherwise (sic).5. therefore, i set aside the aforesaid impugned order. the deputy commissioner concerned shall proceed afresh. the hearing shall not be fixed earlier than fifteen days from date. however the date of hearing shall be communicated to the petitioner. in so far as the question of limitation is concerned that shall not be taken by the petitioner because of the setting aside of this order and further because of the order passed herein giving liberty to proceed afresh.6. the other points are kept open. the petitioner shall be heard in accordance with law. therefore i set aside the notice for reassessment.7. there will be no order as to costs.8. allegations contained in the petition are not admitted by any of the defendants.9. the registrar is directed to do the needful as it has been disposed of at this stage.10. supplementary affidavit be kept on record.11. all parties are to act on a signed xerox copy of this dictated order on the usual undertaking.

Judgment:
ORDER

Kalyan Jyoti Sengupta, J.

1. By consent of the parties the application is treated as on the day's list.

2. Mrs. Seba Roy, learned lawyer appearing on behalf of the Deputy Commissioner, submits that she does not want to file affidavit-in-opposition as the records made available before me are sufficient to take up this matter finally. So I do. I have gone through the impugned order which is sought to be challenged. The impugned order seeks to reopen the assessment of the petitioner's case. Bereft of two other points, I am of the view that this impugned order is not liable to be sustained. Under section 11-E(2) the Commissioner can reopen only on a certain situation which are set out hereunder :

Sub-section (2) of Section 11-E is quoted hereunder :

(2) Where the Commissioner is satisfied on information or otherwise that a registered dealer,--

(a) has concealed any sales or particulars thereof, or

(b) has furnished incorrect statement of his turnover or incorrect particulars of his sales in the return submitted under Section 10 or otherwise, relating to an assessment made under Sub-section (1) which has resulted in reduction of the amount of tax payable by him under this Act in respect of any of the periods, the Commissioner shall, subject to such conditions as may be prescribed, within six years from the date of such assessment, reopen in the prescribed manner the assessment for such period and, after giving such dealer a reasonable opportunity of being heard, make fresh assessment under Sub-section (1) of Section 11 for such period to the best of his judgment.

3. I have gone through the impugned order and I do not find, to my utter surprise, that any of such conditions having been fulfilled before embarking upon to reopen the assessment.

4. I am of the further view that until and unless there is finding of the Deputy Commissioner that he is satisfied that the dealer concerned has concealed any sales or particulars thereof, or has furnished incorrect statement of his turnover or incorrect particulars of the sales in the return submitted under Section 10 or otherwise (sic).

5. Therefore, I set aside the aforesaid impugned order. The Deputy Commissioner concerned shall proceed afresh. The hearing shall not be fixed earlier than fifteen days from date. However the date of hearing shall be communicated to the petitioner. In so far as the question of limitation is concerned that shall not be taken by the petitioner because of the setting aside of this order and further because of the order passed herein giving liberty to proceed afresh.

6. The other points are kept open. The petitioner shall be heard in accordance with law. Therefore I set aside the notice for reassessment.

7. There will be no order as to costs.

8. Allegations contained in the petition are not admitted by any of the defendants.

9. The Registrar is directed to do the needful as it has been disposed of at this stage.

10. Supplementary affidavit be kept on record.

11. All parties are to act on a signed xerox copy of this dictated order on the usual undertaking.