The statutory period of limitation prescribed by a statute cannot be nullified by an executive order.

A. K. MATHUR, C.J. - Petitioner by this petition has prayed that the respondents may be directed to refund an amount of Rs. 97,082. He has also challenged the validity of the amendment introduced by Act No. 25 of 1978 with effect from October 1, 1978.

2. Petitioner is a dealer under the M.P. General Sales Tax Act, 1958, (for short, "the Act") under registration certificate No. 550. The period of assessment in question is June 1, 1968 to May 31, 1969. Petitioner was assessed to sales tax by respondent No. 1 by order dated June 30, 1972 determining the tax at Rs. 88,079. Penalties were also imposed under sections 17(3) and 43(1) of the Act amounting to Rs. 5,000 and Rs. 5,000 respectively. For not submitting the stock list, penalty of Rs. 50 was further imposed in accordance with the provisions of rule 69-A of the M.P. Sales Tax Rules, 1959. Thus the total amount inclusive of penalty was Rs. 98,759. The petitioner paid the tax amount of Rs. 68,764 along with quarterly return and thus the balance remaining in accordance with the aforesaid order was determined at Rs. 29,996.

3. Aggrieved by the order of respondent No. 1, an appeal was filed before the A.A.C., Sales Tax, who by order dated March 4, 1974, remanded the case to respondent No. 1 for fresh assessment. It was also mentioned in the order that the taxable turnover was less and as such, the order was erroneous and was set aside. Respondent No. 1 was directed to make fresh enquiry and it was also directed to quantify the penalties afresh under sections 17(3) and 43(1) of the Act. Meanwhile, aggrieved by the order of the A.A.C., Sales Tax, second appeal was preferred by the petitioner before the Board of Revenue, Gwalior. The Board of Revenue, after considering the matter, held that there was no reason for making a best judgment assessment on the basis of an alleged concealment. It was found that there was no factual justification for inference that there was suppression of sales and that there was no ground for suspicion. Hence the enhancement made in the gross taxable turnover was set aside. It was directed that assessment of the petitioner to sales tax for the period under consideration should be revised on the basis of appellant's accounts both in respect of quantum of the gross and taxable turnover and its ratewise classification and that proportionate tax relief should be given to the appellant on the basis of the findings and the directions recorded in the order of the Board of Revenue. Penalty under section 17(3) was reduced to Rs. 1,000 in place of Rs. 5,000. Penalty under rule 69-A of the Rules was maintained.

4. Respondent No. 3, Commissioner of Sales Tax, being dissatisfied with the order of the Board of Revenue, moved an application under section 44(1) of the Act before the court for making a reference to the High Court, but it was rejected on April 22, 1981. It is alleged that respondent No. 1 did not abide by the directions contained in the order passed by the Board of Revenue in second appeal; the order should have been complied with within the prescribed period, but no such compliance appears to have been made. The petitioner has challenged sub-section (8) of section 18 of the Act which was introduced by Act No. 25 of 1978 with effect from October 1, 1978 to the extent that if fresh assessment has not been made within the period prescribed under section 18(8), i.e., two calendar years from the date of the order, then for any reason fresh assessment can be made under the orders of the Commissioner. This part of the provisions is challenged by the petitioner that it is ultra vires of the main section itself because unlimited power has been conferred on the Commissioner to extend the period of limitation prescribed in this section.

5. Return has been filed by the respondents who have taken the stand that after the order was passed by the Board of Revenue, the Commissioner approached the Tribunal for making a reference to the High Court, but that applica