1. ' SALEEM AKHTAR, J.--By this judgment we propose to dispose of the Sales Tax Reference No, 29/79, 30/79 and 32/79 relating to assessme nt years 1968-69, 1969-70 and 1970-71. The facts in all the cases and the question of law sought to be raised are common. The respondents are manufacturers of biscuits. The original assessment in respect of 1968-69, 1969-70 and 1970-71 were made on 17-6-1972. The respondents had claimed exemption from sales tax in respect of sale of loose biscuits which was accepted by the Assessing Officer and Sales Tax was imposed on export sales which were not sold in loose condition, but were packed. It seems that certain complaints were received from the Union that the respondents have wrongly claimed exemption as they have never sold biscuits in loose condition and were not entitled to it. The Inspecting Assistant Commissioner invoking section 28-A of the Sales Tax Act passed an order dated 28-8-1976, vacated the assessm ent and remanded the case to the Sales Tax Officer directing him to initiate proceedings to re-assess the sale for the aforestated three years. The Sales Tax Officer issued notice to the respondents and called upon them to produce accounts and evidence. The respondents sought time to produce the account books and evidence, but ultimately did not produce it stating that they have not maintained the record after three years of the assessment.
2. The Sales Tax Officer completed the assessment ex parte, accepted the declared sale, but refused to grant exemption claimed by the respondents on poose biscuits which had earlier been granted.
3. The respondents filed an appeal before the Appellate Assistant Commissioner who set aside the assessm ent orders on the ground that the same were made after the expiry of three years the end of the year in which sales were made and were therefore hit by the provisions of section 10 (7) of the Sales Tax Act. The Department filed appeal before the Tribunal in respect of three years, which by a consolidated order confirmed the order of the Appellate Assistant Commissioner. The Department filed an application under section 17 (1) of the Sales Tax Act for referring the following question which was dismissed by the Tribunal. The Department then filed an application under section 17 (2) of the Sales Tax Act for raising the following question:- "Whether on the facts and in the circumstances of the case, the learned Tribunal was justified in holding that the assessm ents made after Ist July, 1976 were barred by time when case was re- opened under section 28-A by the Inspecting Assistant Commissioner which leaves a margin of 5 years under section 28-A (2) from the date of first assessment order?
4. ' We have heard Mr. Shaikh Haider and Mr. Iqbal Naeeim Pasha, the learned counsel for the parties.
5. At the outset we may state that from the facts and circumstances of the case as stated by the Tribunal a question of law does arise. Merely because the Tribunal was of the view that the answer to the question is patent and obvious and requires no further elucidation cannot be made a ground for dismissing the application, when on the face of it a very important and pertinent question of law does arise which requires interpretation of the provisions of the Sales Tax Act. We therefore, proceed to consider what should be the answer to this question: The facts as stated above are not complicated or complex. In a nutshell the assessment made by the assessing Officer had allowed exemption on loose biscuits as claimed by the respondent. On receiving certain information the Income Tax Appellate Commissioner issued notice dated 26-1- 1976 under section 28-A of the Sales Tax Act and by order dated 28-8-1976 set aside the assessm ent order as it was prejudicial to the interest of the revenue. The Sales Tax Officer was directed to reassess the respondents who after issuing notice made reassessment order on 30-11- 1976. This order has been set aside by the Appellate Commissioner and confirmed by the Tribunal mainly on the ground that the reassessment made by the Sales Tax Officer was barred by time under section 10, subsection (7) which provides that no assessment under section 10 shall be made after the expiry of three years from the end of the year in which the sales were made. The explanation to it provides that this subsection shall have effect in respect of assessment made on or after the first day of July, 1976. Therefore, the assessment made before Ist day of July, 1976 was not to fall within the ambit of section 10 (7). It may be mentioned that subsection 10 (7) and explanation were added by Finance Act 1975, and a period of one year was given to the Assessing Officer to frame all such assessm ents to which the bar of subsection (7) would be applicable from 1-7-1976.
6. ' Mr. Iqbal Naeem Pasha the learned counsel for the respondent has contended that the assessm ent was made by the Sales Tax Officer on 30-11-1976 and therefore, it was clearly hit by the provisions of section 10 (7). An examination of the facts of this case will show that original assessm ent was made on 17-6-1972 but it was set aside on 28-8-1976 and case was remanded to the Sales Tax Officer to reassess who completed it on 30-11-1976. It therefore, becomes necessary to refer to section 28-A of the Sales Tax Act which reads as follows:- "28-A. Power of Inspecting Assistant Commissioner to revise sales tax assessment order.--(1) The Inspecting Assistant Commissioner may call for and examine the record of any proceedings under this Act and if he considers that any order passed therein by the Sales Tax Officer is erroneous in so far as it is prejudicial to the interests of revenue he may, after giving the assessee an opportunity of being heard and after making or causing to be made, such enquiry, as he deems necessary, make such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessm ent, or cancelling the assessment and directing a fresh assessment to be made.
(2) No order shall be made under sub-section (1) after the expiry of five years from the date of the order sought to be revised."
7. This section was added by Finance Act 1967 and prior to that Inspecting Assistant Commissioner had no power to revise the assessm ent order made by the Sales Tax Officer. Under the provision the Inspecting Assistant Commissioner has been authorised to call for and examine the record of any proceeding. Pre-condition for invoking such power is that Sales Tax Officer has passed an erroneous order which is prejudicial to the interest of revenue. It is not every error which attracts section 28-A. Only such errors by which prejudice is caused to the revenue call for an action under this provision. Once the Inspecting Assistant Commissioner has formed an opinion to this effect he can revise the order of the Sales Tax Officer after giving the assessee an opportunity of being heard and making such inquiries as deems necessary in the facts and circumstances of the case. In exercise of his power he may enhance, modify or cancel the assessment or remand to the Assessing Officer directing him to make a fresh assessment. Subsection (2) of section 28-A provides that order under subsection (1) shall not be made after the expiry of five years from the date of order sought to be revised. Thus a period of limitation of five years has been fixed for passing an order under section 28-A (1). The original assessment order was made by the Sales Tax Officer on 17-6-1972 therefore, the Inspecting Assistant Commissioner could have exercised power under section 28-A within a period of five years from the date of the order. Accordingly he was competent to revise the order upto 16-7-1977. If we accept the contention of Mr. Pasha that the reassessm ent made after a remand should have been in terms of section 10 (7) then it leads to the conclusion that the Inspecting Assistant Commissioner could not invoke section 28-A on expiry of three years from the end of the year in which sales were made. This means that in respect of these three years the limitation had expired on 30-6-1972, 30-6-1973 and 30-6-1974 and after expiry of these dates neither the Inspecting Assistant Commissioner could pass order under section 28A nor a direction to the Assessing Officer to frame fresh assessment. This interpretation would put a limitation on the power of Inspecting Assistant Commissioner whereas under section 28-A he can pass order within five years from the date of assessment order. If Mr. Pasha's contention is accepted it would render section 28-A (2) completely nugatory and ineffective. It is a well settled principle of interpretation that various provisions of a Statute are to be construed harmoniously and to avoid conflict. According to Mr. Pasha section 10 (7) will apply as fresh assessment has to be made under section 10. In our view the provision of section 10 subsection (7) applies to cases where assessm ent order is made originally by the Assessing Officer under the section 10 and not under the direction issued by the Inspecting Assistant Commissioner. Where the assessment framed by the Assessing Officer has been set aside or cancelled and a direction has been issued to re-assess then although the Assessing Officer may follow the procedure provided under section 10 it shall not be treated as an assessm ent made under section 10. It will be re-assessment made under the direction issued by the Inspecting Assistant Commissioner under section 28-A as the original assessm ent has been cancelled. Such assessment should be completed within five years from the date of the order sought to be revised. Therefore, in our view bar of section 10 (7) will not be applicable to cases where the assessment made originally has been cancelled and the Assessing Officer has been directed to make a fresh assessment.
8. ' We therefore answer the question in the negative.