TMI Blog1955 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... imself how far the report of the Inspector was correct. He, therefore, went to Bilaspur with an Inspector of the Department on 29th December, 1949. From local enquiries, it transpired that the assessee had a shellac factory at Bilaspur in Bihar and that he had been doing busi- ness from Bilaspur but the dealer used to keep all his books of account at a place known as Murisemar across the border in Uttar Pradesh about a mile from Bilaspur. Murisemar is separated from Bilaspur by a small rivulet. The assessee had an extensive business in Arhatdari at his place, i.e., at Murisemar. The taxing authorities called upon the dealer to produce his books of account and the notice was duly received by his agent. The assessee had been given full opportunity of being heard and representing his case and the assessing officer went much beyond the strict requirements of law and sent no less than 6 notices. The assessing officer had no option but to pass an ex parte order under section 13(5) of the Act to the best of his judgment. After considering the materials before him, namely, (i) Inspector's report, (ii) results of local enquiries and inspection by the assessing officer himself, and (iii) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has now moved the High Court and the High Court by its order dated the 4th April, 1953, in Miscellaneous judicial Case No. 428 of 1953 has required the Board to state a case on the following question of law: "Whether in the circumstances of this case the imposition of penalty upon the assessee under section 13(5) of the Bihar Sales Tax Act, 1947, is legally valid?" It has been proved beyond doubt that the assessee had been doing business in Bihar in shellac, kirilac, grains and ghee etc. and that he was a dealer in Bihar as defined in the Act. The dealer had been surreptitiously engaged, by many subterfuges, in evading taxation on a large volume of sales. The assessee had set up arrangements for an extensive evasion of the sales tax in three States, viz., Uttar Pradesh, West Bengal and Bihar. The order of the lower courts show that the assessee's wilful failure to apply for registration has been made out and the order about penalty calls for no interference. Having regard to the conduct of the assessee, even the maximum penalty of 1 1/2 times the assessed tax would have been justified. But as now required by the High Court the Board refers the following question of law for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also imposed upon the assessee under section 13(5) of the Bihar Sales Tax Act. For the period from 1st of April, 1948, to 31st of March, 1949, the Sales Tax Officer imposed a tax of Rs. 6,890-10-0 and a penalty of a similar amount was imposed upon the assessee under section 13 (5). The order of assessment and of penalty for the two periods namely, from the 1st of July, 1947, to 31st of March, 1948, and from 1st of April, 1948, to 31st of March, 1949, was passed by the Sales Tax Officer on the same date and by a single order. The assessee preferred an appeal to the Commissioner against the order passed by the Sales Tax Officer. The appeal was allowed so far as the assessment and penalty for the period from 1st of July, 1947, to 31st of March, 1948, was concerned, and the order of the Sales Tax Officer was set aside, but the Commissioner affirmed the order of assessment and penalty imposed upon the assessee for the period from 1st of April, 1948, to 31st of March, 1949. The assessee preferred an application in revision to the Board of Revenue, but that application was dismissed. As directed by the High Court the Board of Revenue has stated a case upon the following question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot furnish returns in respect of any period by the prescribed date, the Commis- sioner shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer. In the present case we are concerned with section 13(5) under which assessment has been made upon the partner- ship firm of Jugal Kishore Ramgopal. Section 13(5) gives authority to the Commissioner to assess the dealer who has committed default not only for the period for which the return was due by the prescribed date but the Commissioner is authorised to make assessment for all subsequent periods. It is clear, therefore, that the order of assessment for the two periods in question, viz., the period from the 1st July, 1947, to the 31st March, 1948, and the period from the 1st April, 1948, to the 3Ist March, 1949, was a single order made under the authority con- ferred by section 13(5). The penalty imposed in this case is also a single penalty imposed under section 13(5) upon the assessee on account of his wilful default in not applying for registration. The argument of the learned counsel for the assessee on this point must, therefore, be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business. It does not appear that any sales were made at Bilaspur or that accounts of sales were kept at this place. The factory at Bilaspur was, therefore, not a place of business within the meaning of rule 2(1), and the service of the notice in Form XV was not in accordance with the requirements of rule 64. The learned Government Pleader drew our attention to the fact that in this case notices on plain paper were given to the assessee on the 29th December, 1949, 12th January, 1950, 2nd February, 1950, and 20th February, 1950. A certified copy of each of these notices were produced by the counsel on behalf of the assessee during the hearing of this case. But it does not appear that in any of these notices the authorities mentioned the fact that a penalty was liable to be imposed upon the assessee under section 13 (5). All these notices only say that if accounts were not produced by a particular date the authority would make assessment upon the firm to the best of its judgment. We are, therefore, satisfied that the assessee was not given a notice as contemplated by section 13(5) of the Act. In our opinion, the giving of a reasonable opportunity of being heard under section 13(5) i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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