Elbe Industrial Works Vs. Commercial Tax Officer and ors. - Court Judgment

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			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
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			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'counselplain' => 'Bajoria, Adv.',
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			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
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			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
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		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
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			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
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			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
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		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'counselplain' => 'Bajoria, Adv.',
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		'court' => 'Kolkata',
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		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
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		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
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			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'counselplain' => 'Bajoria, Adv.',
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			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
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			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
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		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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sales tax - reassessment - section 11 e of bengal finance (sales tax) act,1941, rule 54aa of bengal sales tax rules, 1941 and rule 9 of central sales tax (west bengal) rules, 1958 - petitioner challenged notices of reopening of assessment - rule 9 prescribes reopening to be made in terms of section 11e and rule 54aa and rules of 1941 - reopening made through notice under section 11e and rule 54aa and rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.judgmentdilip kumar seth, j.1. the petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening.....

Judgment:

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			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
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		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.

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			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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Judgment

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			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
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			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'counselplain' => 'Bajoria, Adv.',
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			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'counselplain' => 'Bajoria, Adv.',
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		'decidedon' => '2002-05-07',
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		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
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$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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Dilip Kumar Seth, J.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'counselplain' => 'Bajoria, Adv.',
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		'decidedon' => '2002-05-07',
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		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
)
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2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
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	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
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		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
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		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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Submission on behalf of the respondents :

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]
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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
		(int) 0 => '885418',
		(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.

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Code Context
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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'counselplain' => 'Bajoria, Adv.',
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			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'counselplain' => 'Bajoria, Adv.',
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		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
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		'counselplain' => 'Bajoria, Adv.',
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		'court' => 'Kolkata',
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		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
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		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
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	'args' => array(
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		(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
	)
)
$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
)
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3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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Notice for reopening (annexure b) whether valid ?

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
		(int) 0 => '885418',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
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		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
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		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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		'circuit' => null
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$ctype = ' High Court'
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.'

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
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			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'counselplain' => 'Bajoria, Adv.',
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			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
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			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'counselplain' => 'Bajoria, Adv.',
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		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
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			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Commercial Tax Officer and ors.',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
)
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'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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(a) has concealed any sales or particulars thereof, or

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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(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.'

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
		(int) 0 => '885418',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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		'circuit' => null
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
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		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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(la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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(2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.

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Code Context
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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Commercial Tax Officer and ors.',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
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		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
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		'counselplain' => 'Bajoria, Adv.',
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		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
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		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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(3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.'

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
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		'counselplain' => 'Bajoria, Adv.',
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		'court' => 'Kolkata',
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		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
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		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
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	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
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$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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5.5. Whereas rule 9 of the 1958 rules provides as follows :

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
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		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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(2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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(3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.'

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
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	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
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		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
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		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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		'circuit' => null
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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Order of reopening ; whether valid :

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
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		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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		'circuit' => null
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
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			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'counselplain' => 'Bajoria, Adv.',
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			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'counselplain' => 'Bajoria, Adv.',
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		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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			'counselplain' => 'Bajoria, Adv.',
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			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
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		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
		(int) 0 => '885418',
		(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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		'pubs' => '[2003]131STC453(Cal)',
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		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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		'circuit' => null
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$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
)
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Conclusion :

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[2003]131STC453(Cal)',
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			'respondent' => 'Commercial Tax Officer and ors.',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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		'circuit' => null
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$ctype = ' High Court'
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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There will be no order as to costs.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
	'args' => array(
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
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		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
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	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
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All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.

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	'title_for_layout' => 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '885418',
			'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
			'appealno' => 'W.P. No. 345 Of 2002',
			'appellant' => 'Elbe Industrial Works',
			'authreffered' => '',
			'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bajoria, Adv.',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2002-05-07',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Dilip Kumar Seth, J.',
			'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">Judgment</p><p style="text-align: justify;">Dilip Kumar Seth, J.</p><p style="text-align: justify;">1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p style="text-align: justify;">2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p style="text-align: justify;">2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p style="text-align: justify;">2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p style="text-align: justify;">2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p style="text-align: justify;">2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p style="text-align: justify;">Submission on behalf of the respondents : </p><p style="text-align: justify;">3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p style="text-align: justify;">3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p style="text-align: justify;">3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p style="text-align: justify;">3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p style="text-align: justify;">The scope :</p><p style="text-align: justify;">4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p style="text-align: justify;">Notice for reopening (annexure b) whether valid ?</p><p style="text-align: justify;">5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p style="text-align: justify;">'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p style="text-align: justify;"> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p style="text-align: justify;">5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p style="text-align: justify;">5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p style="text-align: justify;">5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p style="text-align: justify;">'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p style="text-align: justify;"> (a) has concealed any sales or particulars thereof, or </p><p style="text-align: justify;"> (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.'</p><p style="text-align: justify;">5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p style="text-align: justify;">'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p style="text-align: justify;"> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p style="text-align: justify;"> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p style="text-align: justify;"> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p style="text-align: justify;">5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p style="text-align: justify;">'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p style="text-align: justify;"> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p style="text-align: justify;"> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p style="text-align: justify;">5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p style="text-align: justify;">5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p style="text-align: justify;">Order of reopening ; whether valid : </p><p style="text-align: justify;">6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p style="text-align: justify;">6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p style="text-align: justify;">6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p style="text-align: justify;">6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p style="text-align: justify;">Conclusion : </p><p style="text-align: justify;">7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p style="text-align: justify;">Order : </p><p style="text-align: justify;">8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p style="text-align: justify;">There will be no order as to costs. </p><p style="text-align: justify;">All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '[2003]131STC453(Cal)',
			'ratiodecidendi' => '',
			'respondent' => 'Commercial Tax Officer and ors.',
			'sub' => 'Sales Tax',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'elbe-industrial-works-vs-commercial-officer',
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$title_for_layout = 'Elbe Industrial Works Vs Commercial Tax Officer and ors - Citation 885418 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '885418',
		'acts' => '<a href="/act/51177/central-sales-tax-act-1956-complete-act">Central Sales Tax Act, 1956</a> - Section 9; ;Bengal Finance (Sales Tax) Act, 1941 - Section 11E And 11E(2); ;Bengal Sales Tax Rules, 1941 - Rule 54AA; ;Central Sales Tax (West Bengal) Rules, 1958 - Rule 9',
		'appealno' => 'W.P. No. 345 Of 2002',
		'appellant' => 'Elbe Industrial Works',
		'authreffered' => '',
		'casename' => 'Elbe Industrial Works Vs. Commercial Tax Officer and ors.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bajoria, Adv.',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2002-05-07',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Dilip Kumar Seth, J.',
		'judgement' => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p></p><p>Judgment</p><p>Dilip Kumar Seth, J.</p><p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :</p><p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.</p><p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.</p><p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.</p><p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.</p><p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.</p><p>Submission on behalf of the respondents : </p><p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.</p><p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.</p><p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.</p><p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.</p><p>The scope :</p><p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.</p><p>Notice for reopening (annexure b) whether valid ?</p><p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :</p><p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.</p><p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' </p><p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.</p><p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.</p><p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :</p><p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-</p><p> (a) has concealed any sales or particulars thereof, or </p><p> (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.'</p><p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :</p><p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.</p><p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.</p><p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.</p><p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' </p><p>5.5. Whereas rule 9 of the 1958 rules provides as follows : </p><p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.</p><p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.</p><p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' </p><p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.</p><p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.</p><p>Order of reopening ; whether valid : </p><p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,</p><p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.</p><p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.</p><p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.</p><p>Conclusion : </p><p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.</p><p>Order : </p><p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.</p><p>There will be no order as to costs. </p><p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[2003]131STC453(Cal)',
		'ratiodecidendi' => '',
		'respondent' => 'Commercial Tax Officer and ors.',
		'sub' => 'Sales Tax',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'elbe-industrial-works-vs-commercial-officer'
$args = array(
	(int) 0 => '885418',
	(int) 1 => 'elbe-industrial-works-vs-commercial-officer'
)
$url = 'https://sooperkanoon.com/case/amp/885418/elbe-industrial-works-vs-commercial-officer'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'Sales Tax - reassessment - Section 11 E of Bengal Finance (Sales Tax) Act,1941, Rule 54AA of Bengal Sales Tax Rules, 1941 and Rule 9 of Central Sales Tax (West Bengal) Rules, 1958 - petitioner challenged notices of reopening of assessment - Rule 9 prescribes reopening to be made in terms of Section 11E and Rule 54AA and Rules of 1941 - reopening made through notice under Section 11E and Rule 54AA and Rules of 1941 cannot be questioned - notice issued on basis of seized books of accounts - petitioner not suffered prejudice - petition dismissed.<p>',
	(int) 1 => '<p>Judgment',
	(int) 2 => '<p>Dilip Kumar Seth, J.',
	(int) 3 => '<p>1. The petitioner has challenged the notices of reopening of the assessment made under the bengal finance (sales tax) act, 1941 ('1941 act') for the respective periods 1988-89 till 1992 as well as the order of reopening dated october 23, 1998 passed by the deputy commissioner, commercial taxes, howrah circle, and the assessment made under the said order by the commercial tax officer (cto) respectively.Submission on behalf of the petitioner :',
	(int) 4 => '<p>2. The learned counsel for the petitioner points out that the liability was in respect of intra-state and inter-state sales. So far as intra-state sales are concerned, it is governed by the 1941 act. So far as the inter-state sales are concerned, these are governed by the central sales tax act, 1956 ('1956 act'). The liability of payment of tax accrues under different provisions of different statute in respect of different kind of sales. One cannot come within the other. Here the notices were issued under the 1941 act. As such the part of the assessment with regard to intra-state sale under the 1941 act is not being assailed by the petitioner. But so far as that part of the inter-state sales are concerned, those are being challenged, since these are governed under the 1956 act, which cannot be made on the basis of the notice without specifying or mentioning that the assessment is being made under the 1956 act and the order dated october 23, 1998 purporting to reopen the assessment in respect of inter-state sales governed by the 1956 act, on the same ground.',
	(int) 5 => '<p>2.1. He points out that neither in the notice, which are annexure 'b' series, nor in the impugned order dated october 23, 1998 being annexure 'c', any reference to the 1956 act has been made. The entire reference is in respect of 1941 act. Since the liability accrues under different statutes, particularly, the 1956 act, so far as inter-state sale is concerned, the same cannot be reopened under the 1941 act. He further contends that in no manner the 1956 act could be resorted to on the basis of the impugned order contained in annexure 'c', in view of absence of any reference to the provisions of the 1956 act.',
	(int) 6 => '<p>2.2. He further contends that the said order is an outcome of total non-application of mind. In the order, all the sales for the period ending march 31, 1989 till march 31, 1992 were purported to be reopened. Whereas in 1989-90, there was no inter-state sale alleged to be suppressed. Therefore, the order of reopening in respect of 1989-90, under the 1956 act, cannot be sustained. In view of such non-application of mind, which is reflected by non-mentioning of the 1956 act and in the overlooking of the 1989-90 period, the order contained in annexure 'c' is liable to be quashed. Since the foundation for assessment upon reopening is unsustainable, therefore, the assessment made cannot be sustained and is liable to be quashed.',
	(int) 7 => '<p>2.3. Pointing out to section 11e, mr. Bajoria, counsel for the petitioner, points out that it is under the 1941 act where reopening can be made, which is applicable even in respect of the 1956 act by Reason of rale 54aa of the west bengal sales tax rules, 1941 ('1941 rules'), since the central sales tax (west bengal) rules, 1958 ('1958 rules') in rule 9 points out that those rules are to be followed.',
	(int) 8 => '<p>2.4. He has also contended that it is the deputy commissioner, who can pass the order of reopening, but the deputy commissioner in this case has not passed any order of reopening. On the other hand, he had directed the commercial tax officer to reopen the case. Thus, there is no reopening in the eye of law. The commercial tax officer, therefore, cannot proceed with the assessment, therefore, the impugned order, the notices contained in annexure 'b', order contained in annexure 'c' and the assessment made thereunder be quashed.',
	(int) 9 => '<p>Submission on behalf of the respondents : ',
	(int) 10 => '<p>3. The learned counsel for the respondents-sales tax department, on the other hand, contends that the procedures for assessment both under the 1941 act and 1956 act are governed by the 1941 rules. Therefore, non-mentioning of 1956 act or rules would not render the notices or the impugned order contained in annexure 'c' defective. It is, in fact, a technical plea. Since the assessments arc to be made and the reopening is to be done under the provisions of section 11e of the 1941 act, which is applicable by virtue of the provisions contained in the 1958 rules, it would make no difference. The petitioner has not suffered any prejudice since it had understood the scope of reopening when the inter-state and intra-state sales were alleged to be involved. She further contends that it is the substance of the order, which has to be understood in the context in which it is based. It cannot be looked into without the context. It cannot be appreciated with a technical pedantic approach.',
	(int) 11 => '<p>3.1. She further contends that in the process of assessment, the petitioner itself had disclosed the suppression by submitting a list of such suppression, which is annexure 'r' to the affidavit-in-opposition. Therefore, the assessee itself having understood the case against it, it cannot raise all these questions after having participated in the proceeding without raising any objection with regard thereto.',
	(int) 12 => '<p>3.2. She also points out that the deputy commissioner himself had reopened the assessment, which is apparent from the order itself. The commercial tax officer had no choice but to assess. The order of reopening was passed by the deputy commissioner, which can be gathered from the impugned order itself. Reopening in respect of the said period related to both inter-state and intra-state sales, asMentioned in the order itself. Since it was a combined order, it does not mean that the order of reopening included inter-state sales for the period of 1989-90 in respect whereof the suppressions were shown as nil.',
	(int) 13 => '<p>3.3. The petitioner, having participated in the assessment, is estopped from challenging the assessment. She further contends that the writ petition cannot be maintained in view of adequate alternative remedy by way of appeal. Therefore, the writ petition should be dismissed.',
	(int) 14 => '<p>The scope :',
	(int) 15 => '<p>4. After having heard the learned counsel for the parties, it appears that the main question revolves round, the interpretation of the notice contained in annexure 'b' and the impugned order contained in annexure 'c'. In case annexure 'c' is quashed, then the assessment would be automatically quashed. However, the petitioner's counsel had not questioned the assessment on merit. The assessment was questioned only on the basis that there was no valid order of reopening. As such the order of assessment is incompetent. Therefore, we may examine the validity of the order contained in annexure 'c'. Before deciding it, the validity of the notice contained in annexure 'b' is also to be examined. Inasmuch as, unless a notice is issued, no order of reopening could be passed. If such notice that has been issued is invalid, then the purported order of reopening pursuant to an invalid notice cannot be sustained. These are settled proposition of law.',
	(int) 16 => '<p>Notice for reopening (annexure b) whether valid ?',
	(int) 17 => '<p>5. In order to ascertain the same, let us first examine the respective notices contained in annexure 'b'. One of the said notices reads thus :',
	(int) 18 => '<p>'whereas i am satisfied that you have concealed your sales particulars of sales or you have furnished incorrect statement of your turnover or incorrect particulars of your sales in the returns submitted under section 10 of the bengal finance (sales tax) act, 1941 relating to an assessment made under sub-section (1) of section 11e of the said act in respect of period 1988-89.',
	(int) 19 => '<p> You are requested to show cause on august 17, 1998 at 11.30 am why the said assessment for the abovenoted period shall not be reopened by the undersigned and order directing fresh assessment under sub-section (1) of section 11 of the said act for the same period Shall not be passed in accordance with the provisions of sub-section (2) of the section 11e of the said act.' ',
	(int) 20 => '<p>5.1. This notice, along with similar such notices for different years were issued by the deputy commissioner, commercial taxes. From the notice, it appears that the return was submitted under section 10 of the 1941 act relating to an assessment made under section 11e(1) of the 1941 act for the respective period mentioned. Therefore, the petitioner was directed to show cause why the assessment shall not be reopened and a fresh assessment under section 11(1) of the 1941 act shall not be made in accordance with the provisions contained in section 11e(2) of the 1941 act.',
	(int) 21 => '<p>5.2. The scheme of the sales tax legislation has a kind of distinctive feature. In respect of inter-state sale, the tax is collected by the central government under the 1956 act. Whereas in respect of intra-state sales, the tax is collected by the state government under the 1941 act. The 1956 act provides for the liability and certain other provisions. But, it does not provide for collection of taxes. The machinery used by the state government under 1941 act is utilised for the purpose of collection of tax under the 1956 act. The rules are framed under the central sales tax act by virtue of section 13 of the 1956 act. Under the said provision, the central sales tax (west bengal) rules, 1958 was framed. Section 13 also confers power on the state government to make rules for the purpose or carrying out object of the act. Thus, the machinery through which central sales tax is realised are those established under the 1941 act. In the 1958 rules, reference has been made at every stage to the 1941 act and the 1941 rules framed under that act. The manner in which notices are to be issued and cases may be reopened are provided for in section 11e read with rule 54aa of the 1941 act and the 1941 rules, respectively.',
	(int) 22 => '<p>5.3. In this background, we may now examine the said notice and the impugned order. Section he of the 1941 act in sub-section (2) provides as follows :',
	(int) 23 => '<p>'(2) where the commissioner is satisfied on information or otherwise that a registered dealer-',
	(int) 24 => '<p> (a) has concealed any sales or particulars thereof, or ',
	(int) 25 => '<p> (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.'',
	(int) 26 => '<p>5.4. The procedure through which it is to be reopened is provided in rule 54aa of the 1941 rules which prescribes as hereunder :',
	(int) 27 => '<p>'54aa(1). Where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where it appears necessary to a deputy commissioner having jurisdiction in respect of the dealer to proceed under sub-section (2) of section 11e, he may issue a notice calling upon the dealer to show cause if any, on a date fixed ordinarily after fifteen days from the date of issue of show cause, the date of service of the notice, why the deemed assessment shall not be reopened and fresh assessment and other proceedings shall not be started in accordance with the provisions of the said sub-section.',
	(int) 28 => '<p> (la) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 11e and where a dealer writes under sub-section (2a) of that section to an assistant commissioner having jurisdiction in respect of the dealer, he may issue a notice calling upon the dealer to produce on a date specified in such notice, such documents and evidence as deemed necessary to establish his contention that he has paid an amount of tax in excess of what was payable in respect of any return period or periods, and he shall specify such date in such notice, ordinarily not less than fifteen days after the date of service of the notice.',
	(int) 29 => '<p> (2) after considering the cause, if any, shown by the dealer in pursuance of the notice referred to in sub-rule (1), or after considering the documents and evidence produced in pursuance of the notice referred to in sub-rule (1a), as the case may be, the deputy commissioner may reopen an assessment by an order in writing directing the assessing authority to make a fresh assessment in respect of any period deemed to have been made and he shall record briefly but clearly his reasons for such reopening and inform the dealer also accordingly.',
	(int) 30 => '<p> (3) on receipt of the order referred to in sub-rule (2), the assessing authority, shall proceed to make fresh assessment inAccordance with the provisions of sub-section (1) of section 11 and the rules made thereunder.' ',
	(int) 31 => '<p>5.5. Whereas rule 9 of the 1958 rules provides as follows : ',
	(int) 32 => '<p>'9. Assessment notices.--(1) the notice to commence assessment proceedings shall be in form 3 and the notice to communicate the demand on assessment shall be in form 4.',
	(int) 33 => '<p> (2) where an assessment in respect of any period or periods of a dealer is deemed to have been made under section 9 of the central sales tax act, 1956 read with section 11e of the bengal finance (sales tax) act, 1941 (ben. Act vi of 1941), such assessment in respect of any of the periods may he reopened in the manner and subject to the conditions prescribed under rule 54aa of the bengal sales tax rules, 1941.',
	(int) 34 => '<p> (3) where after an assessment referred to in sub-rule (2) a dealer discovers omission or error or other facts resulting in short payment of tax and likes to furnish a declaration in this regard, he shall furnish the same as far as possible in form 1 referred to in Rule 8.' ',
	(int) 35 => '<p>5.6. All these provisions clearly show that reopening in respect of central sales tax is to be made according to provision contained in the 1941 act and the 1941 rules. Therefore,, if a reference is made to the provision of the 1941 act only, the same will not make the notice bad or illegal. In the present case, there was a search and certain books of accounts were seized. On the basis thereof, the notice contained in annexure 'b' series were issued for the respective period. Therefore, the non-mentioning of 1956 act in the notice will not render the notice invalid, since the same was issued on the basis of the seized books of accounts. That apart, after the notice is issued, the petitioner shall have an opportunity to defend itself with regard to the suppression alleged.',
	(int) 36 => '<p>5.7. Therefore, i do not find any infirmity in the notice so issued, therefore, the proceedings for reopening cannot be set aside on that ground.',
	(int) 37 => '<p>Order of reopening ; whether valid : ',
	(int) 38 => '<p>6. So far as the order contained in annexure 'c' is concerned, it also does not mention anything about the 1956 act. It also refers to section 11e of the 1941 act and rule 54aa(1) and (2) of the 1941 rules. The periods were also mentioned. The said order reflects that there was suppression of inter-state and intra-state transactions. The break-up of the respective transactions was also mentioned in the Order. For the said break-up, it appears that in the year 1989-90, suppression in respect of inter-state sale was nil. The reopening was made according to this break-up, which indicates no reopening of inter-state sale for 1989-90. Thus, the very reference to inter-state sale indicates that the reopening was in relation to both inter-state and intra-state. Admittedly, inter-state sale is governed by 1956 act. Therefore, on this ground the order cannot be said to be bad,',
	(int) 39 => '<p>6.1. An order has to be read in the context in which it is passed having regard to the substance. In effect, the substance of the order is not difficult to understand. Therefore, simple omission will not render the order bad in view of the fact that it had not referred to 1956 act. In fact, it is not necessary to refer to 1956 act, since the reopening was aimed at making under the provision of section 11e read with rule 54aa of the 1941 act and 1941 rules respectively. The direction to reopen the four years assessment has a reference to the inter-state and intra-state sales mentioned in the said order. The order of the reopening will be operative in respect of intra-state sales for the period to 1988-92, but so far as the inter-state sales are concerned, it would be reopened in respect of 1988-89 and 1990-92, since suppression was nil for 1989-90, there could not be any assessment under the 1956 act for the said year. Therefore, on this ground also the order dated october 23, 1998 contained in annexure 'c' cannot be assailed.',
	(int) 40 => '<p>6.2. In the last portion of the said order, the deputy commissioner, commercial taxes had recorded that the cases were fit for reopening for fresh assessment and other proceedings. Therefore, the decision to reopen was taken by the deputy commissioner, commercial taxes. He also directed commercial tax officer to reopen the ease for the periods as mentioned in the said order and make assessment under section 11(2) of the 1941 act. There was no alternative for the commercial tax officer but to assess. The direction to reopen was given in no uncertain terms. In fact, the order may not have been happily worded or phrased, but the order, as i have observed earlier, is to be interpreted on the basis of its substance having regard to the context in which it is passed. It is clear that the deputy commissioner was of the view that the assessment is to be reopened and fresh assessment is to be made. Therefore, it was his decision to reopen, which he had reopened by directing the commercial tax officer to assess. The direction to reopen and make assessment will not alter the character of the said order. When ho says it is to be reopened and directs the commercial tax officer to reopen, the same means that he has reopened the assessment. Inasmuch as the Commercial tax officer has no alternative but to assess on the basis of direction by the deputy commissioner to reopen. The direction to reopen is an order for reopening. The objection raised is too technical.',
	(int) 41 => '<p>6.3. That apart, the petitioner had also understood its case, since during the proceedings, the petitioner had never objected to the assessment. These grounds were never raised. The petitioner had participated in the proceedings without any reservation, it had accepted the order. If there be any objection, the same were waived by the conduct of the petitioner. After having participated without any reservation, the petitioner is estopped from challenging the order of reopening and the assessment at this stage. This is also apparent from the fact that the petitioner itself had disclosed the suppressions made by it, which is annexure 'r' to the affidavit-in-opposition. After having itself disclosed it, it is no more open to the petitioner to challenge it. By reason of its conduct, it is now precluded from challenging the reopening on the principle of estoppel.',
	(int) 42 => '<p>Conclusion : ',
	(int) 43 => '<p>7. Rule 9 of the 1958 rules prescribes that reopening is to be made in terms of section 11e and rule 54aa of the 1941 act and the 1941 rules respectively. Therefore, when reopening is made through a notice under section 11e and rule 54aa of the 1941 act and rules respectively, it cannot be questioned. Similarly, the impugned order of reopening also cannot be questioned for the same reason. Nothing has been pointed out that by reason of such non-mentioning of the 1956 act or non-reference to the provision of 1956 act, the petitioner has suffered any prejudice.',
	(int) 44 => '<p>Order : ',
	(int) 45 => '<p>8. In these circumstances, i do not find any reason to interfere with the impugned orders. Therefore, the writ petition fails and is accordingly dismissed. It will be open to the petitioner to assail the order of assessment on merit in appeal, if he is so advised. No observation made in this order will prejudice the petitioner, nor would influence the appellate authority.',
	(int) 46 => '<p>There will be no order as to costs. ',
	(int) 47 => '<p>All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking.<p>',
	(int) 48 => '<p>'
)
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