JUDGMENT K.L. Sharma, J.
1.These revisions involve similar facts in similar proceedings and common questions of law and facts and contain similar prayers. Therefore, all these revisions have been heard together and are being hereby disposed of by one common judgment.
2. Sales Tax Revision No. 54 of 1990 arises out of the proceedings for escaped assessment in respect of the assessment year 1972-73 under the Central Sales Tax Act;
3. Sales Tax Revision No. 55 of 1990 arises out of the proceedings for escaped assessment in respect of the assessment year 1972-73 under the U.P. Sales Tax Act.
4. Sales Tax Revision No. 56 of 1990 arises out of the proceedings for escaped assessment in respect of the assessment year 1971-72 under the U.P. Sales Tax Act.
5. Sales Tax Revision No. 57 of 1990 arises out of the proceedings for escaped assessment in respect of the assessment year 1971-72 under the Central Sales Tax Act.
6. Sales Tax Revision No. 59 of 1990 arises out of the proceedings for escaped assessment in respect of the assessment year 1973-74 under the U.P. Sales Tax Act.
7. Sales Tax Revision No. 60 of 1990 arises out of the proceedings for escaped assessment in respect of the assessment year 1974-75 under the Central Sales Tax Act.
8. Sales Tax Revision No. 63 of 1990 arises out of the proceedings for escaped assessment in respect of the assessment year 1974-75 under the U.P. Sales Tax Act.
9. The following are the facts of undisputed character. The. revisionist is a registered dealer and is carrying on the business of manufacture and sale of vegetable oil, acid oil, spent earth, oxygen, soap stocks, etc. In the year 1976, the books of account of the revisionist were seized by the sales tax department which were subsequently impounded by the Income-tax Officer, Company Circle, Delhi. The seizure of the account books was challenged by the revisionist through Writ Petition No. 1128 of 1976 in the honourable High Court under Article 226 of the Constitution of India. The revisionist had also challenged in this writ petition the action of the Sales Tax Officer, S.I.B., in seizing the account books and for taking away the same. In this writ petition, an interim stay order was passed by this Court on August 31, 1976, staying the proceedings under Section 21 of the U.P. Sales Tax Act for the assessment years 1971-72 to 1975-76, which were pending before the investigating branch. This stay order was, however, made absolute to continue till further orders on June 22, 1977. This stay order was, however, vacated on September 29, 1977, allowing one month's time for the petitioner-revisionist to inspect the document within a month, and thereafter allowing the department to proceed with the assessment of the relevant assessment years even if the petitioner fails to make the inspection of the documents. The department, however, proceeded with the assessment, only in the month of February, 1981 and passed the ex pane assessment orders on March 19, 1981 on the ground that the document impounded by the income-tax officer was made available to the sales tax department, only in the month of February, 1981. Against these ex pane assessment orders for all these years 1971-72 to 1974-75, the revisionist filed appeals under Section 9 of the U.P. Sales Tax Act. These appeals were allowed, and the order of remand was passed directing the assessing authority to make a fresh assessment for all these relevant years. The revisionist-petitioner as well as the Commissioner of Sales Tax preferred second appeals before the Sales Tax Tribunal at Lucknow under Section 10 of the Sales Tax Act against the order of remand and the ex pane assessment orders. The Sales Tax Tribunal after hearing the parties confirmed the judgment of the appellate court and the order of remand by its judgment dated April 20, 1990. Consequently the revisionist felt aggrieved and filed these revisions under Section 11 of the U.P. Sales Tax Act.
10. I have heard Sri Bharatji Agarwal and Sri S.M.K. Chaudhary, learned counsel for the revisionist and Mr. I.M. Quddusi, learned Standing Counsel for the Commissioner of Sales Tax, U.P. I have also perused the record and the various orders passed by the different authorities.
11. The learned counsel for the revisionist has urged only one question of law before this Court. He has contended that under Sub-section (2) of Section 21 of the U.P. Sales Tax Act (hereinafter referred to as "the Act") no order of assessment or reassessment under any provision of the Act for any assessment year shall be made after the expiration of four years from the end of such year. He has further contended that under Sub-section (6) of Section 21 of the Act, the period during which the proceedings for assessment or reassessment for any assessment year remain stayed under the orders of any court or authority, such period, shall be excluded in computing the period of limitation under Sub-section (2) of Section 21. On the basis of these legal contentions Mr. Bharatji Agarwal has stated that the ex parte assessment orders passed on March 19, 1981, in respect of the assessment years 1971-72, 1972-73, 1973-74 were barred by the law of limitation and the remand order for fresh assessment was contrary to law and is liable to be quashed. He has, however, conceded that the assessment orders passed on March 19, 1981 in respect of the assessment year 1974-75 could not be quashed in view of the proviso added to Sub-section (2) of Section 21 of the Act, which enlarged the limitation for assessment years up to December 31, 1982, and as such the Revisions Nos. 60 and 63 of 1990 cannot succeed against the judgment of the Tribunal.
12. The learned Standing Counsel for the respondent Mr. I.M. Quddusi has submitted in reply that the period during which the documents, namely, the books of account of the assessee impounded by the income-tax department were not made available to the assessing authority shall also be liable to be excluded in computing the period of limitation provided in Sub-section (2) of Section 21 of the Act. He has further explained that admittedly the books of account of the assessee were initially seized by the Sales Tax Officer, S.I.B., but these documents were subsequently impounded by the Income-tax Officer who returned these documents to the assessing authority only in the month of February, 1981, and as such in the absence of these documents, the assessing authority could not make an assessment on the merits and in accordance with law. He further stated that the assessing authority remained handicapped and was incapable of making assessment during the period commencing from the date of the vacation of the stay order of this Court on September 29, 1977 till the date prior to the receipt of the documents from the Income-tax Officer.
13. I have perused the impugned judgment of the learned. Tribunal and find that on this question of law, the Tribunal has not clearly considered these arguments now advanced before this Court by Mr. I.M. Quddusi. The learned Tribunal appears to have been influenced by the fact that since the assessing authority was not possessed of the books of account of the assessee which were in the custody of the Income-tax Officer, Delhi, who had impounded the same, the assessing authority could not have made the fresh assessment on the merits and in accordance with law. I find that the learned Tribunal has forgotten to consider this aspect that the assessing authority could have demanded the impounded documents from the Income-tax Officer for the purpose of making fresh assessment on the merits and in accordance with law, particularly emphasising the requirement of limitation under Sub-section (2) read with Sub-section (6) of Section 21 of the Act. No material was brought before the learned Tribunal as to why the assessing authority failed to obtain the impounded documents from the Income-tax Officer, Delhi, during this long period of about 3 1/2 years. The limitation of four years prescribed by Sub-section (2) and the period of stay being excluded, the order of assessment was required to be passed before April 29, 1977, in the year 1978, in the year 1979, but as a matter of fact the ex pane assessment orders were passed on March 19, 1981 which are apparently barred by law of limitation prescribed by the Act.
14. The learned counsel for the revisionist has submitted that the Tribunal had no jurisdiction to extend the period of limitation prescribed by Section 21 of the Act on the ground that the books of account of the assessee were not made available to the assessing authority by the Income-tax Officer during all these 3 1/2 years approximately, and this period could not be excluded from the computation of the limitation prescribed by Section 21 of the Act. He has specifically invited attention to the express provisions of Section 21 of the Act in order to emphasise that in view of the facts of the present case the limitation prescribed by Sub-section (2) of the Act and extended by reason of stay order under Sub-section (6) of the Act had expired before the notice for assessment under Section 21 of the Act was said to have been served on the assessee and as such the ex parte assessment orders passed on March 19, 1981 were clearly barred by time, and as such liable to be quashed.
15. I have carefully gone through the provisions of Section 21 of the Act and find substance in the contentions raised by the learned counsel Mr. Bharatji Agarwal. There is neither legal provision, nor any judicial pronouncement cited before this Court to fortify the view of the learned Tribunal. The impugned judgments of the Tribunal in respect of ex parte assessment years 1971-72, 1972-73 and 1973-74 under the Act and the Central Sales Tax Act are liable to be quashed, and the ex parte orders dated March 19, 1981, passed by the assessing authority in respect of these assessment years are also liable to be quashed on the point of limitation.
16. In the result, the Sales Tax Revisions Nos. 54, 55, 56, 57 and 59 of 1990 succeed, but the Sales Tax Revisions Nos. 60 of 1990 and 63 of 1990 relating to assessment year 1974-75 do not succeed on the point of limitation. No other point was pressed in these revisions on behalf of the revisionist.
17. Consequently Sales Tax Revisions Nos. 54, 55, 56, 57 and 59 of 1990 are hereby allowed, and the impugned judgment and orders dated April 20, 1990 passed by the Sales Tax Tribunal, Lucknow, in respect of assessment proceedings under Section 21 of the U.P. Sales Tax Act for the assessment years 1971-72, 1972-73 and 1973-74 both under the U.P. Sales Tax Act and under the Central Sales Tax Act are hereby quashed, and the ex parte assessment orders passed by the assessing authority on March 19, 1981 in respect of the aforesaid assessment years are also hereby quashed. The Sales Tax Revisions Nos. 60 of 1990 and 63 of 1990 relating to the proceedings under Section 21 of the U.P. Sales Tax Act for the assessment year 1974-75 both under the U.P. Sales Tax Act and under the Central Sales Tax Act are hereby dismissed, and the impugned judgment and orders dated April 20, 1990 referable to the assessment year 1974-75 remain intact to the aforesaid extent only. The stay orders are hereby vacated.