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TMI Blog1956 (7) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... d of January, 1950. The Sales Tax Officer determined the taxable turnover at Rs. 1,02,31,200 and the sales tax was computed at Rs. 1,91,835. The assessee took the matter in appeal to the Commissioner of Sales Tax, but the appeal was dismissed. The assessee then moved the Board of Revenue and filed an application in revision, but this application was also dismissed by the Board of Revenue. At the instance of the assessee the Board of Revenue has stated the following question of law for the opinion of the High Court under section 25(1) of the Bihar Sales Tax Act: "Is it legal or permissible for a Sales Tax Officer to base his estimate on the report of an Inspector of the Department, without giving a copy of the same, when asked for, to the assessee, or without giving any information about the material particulars of the report and with- out hearing the assessee on the same?" In Miscellaneous judicial Case No. 415 of 1953 the material facts are of similar character. The assessment for the period 1st of July, 1947, to the 31st of March, 1948, and the date of the assessment order of the Sales Tax Officer is the 23rd of November, 1949. The Sales Tax Officer determined the taxable turnov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke an assessment under section 13(4), but the point taken by the learned counsel was that before such an assessment was made, the Sales Tax Officer should have disclosed to the assessee the substance of the Inspector's report and he should have given an opportunity to the assessee to meet the allegations made in the report against him. The contention of learned counsel is that there was a violation of the principle of natural justice and so the assessment made by the Sales Tax Officer under section 13(4) was legally invalid. That is the summary of the argument presented by Mr. Baldeva Sahay on behalf of the assessee. I am not, however, pre- pared to accept that argument as correct. It was stated by the learned Government Advocate that the report of the Inspector was not a con- fidential document but was on the record of the proceeding before the Sales Tax Officer. It was also said that the assessee could have perused the document if he had appeared before the Sales Tax Officer at the proper stage and asked for inspection. It is, however, not clear from the statement of the case whether the assessee was shown the Inspector's report before the Sales Tax Officer made the assessment. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect that the appellant took delivery of cloths meant for sale in Nepal under the barter scheme at Jogbani railway station and instead of sending the same to Nepal territory, the appellant brings the cloths to Forbesganj by bullock-cart and sells them at exorbitant prices. Furthermore the learned Superintendent seems to have overlooked the fact that the barter scheme was abolished during the year 1946-47, i.e., before the period in appeal. (g) The appellant has not at all sold any cloth at Katihar, what to speak of several lakhs as wrongly reported. As a matter of fact the appellant is not entitled to deal in cloth at all and as such the alleged statement of Messrs. Chothmal Chhaganmal does not affect the appel- lant, particularly when the said alleged statement is not corroborated by any books of account of the said firm." This ground has been expressly dealt with by the Commissioner in his order. The Commissioner referred to the fact that the assessee did not choose to produce books of account and other papers in order to rebut the allegations made in the Inspector's report. The Commissioner also pointed out that the assessee did not care to adduce any oral or documentary ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncept of 'natural justice' cannot be imprisoned within the straight jacket of any fixed formula. It is not a mechanical instrument applicable to all situations. As observed by (1) (1956) Pat. L.R. 120. Frankfurter, J., in joint Anti-Fascist Refugee Committee v. J. Howard McGrath(1): 'Whether the ex-parte procedure to which the petitioners were subjected duly observed "the rudiments of fair play", Chicago, M. & St. P.R. Co. v. Polt(2), cannot, therefore, be tested by mere generalities or sentiments abstractly appealing. The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished-these are some of the considerations that must enter into the judicial judgment.' It is, therefore, clear that on the question whether a fair opportunity has been given, no general test can be formulated which would be applicable to all conditions. There is, however, authority for the view that the principle would be satisfied if the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baldeva Sahay on behalf of the assessee in the course of his argument. I do not consider that the ratio decidendi of this case has any relevance to the decision of the present case. In the case before the Supreme Court the Income-tax Officer made an estimate of gross profit on sales at 40 per cent. by pure guess. The relevant part of the assessment order was in these terms: "From the point of view of profits, 1943 was a very good year, if not the best, for all cotton mills. Expenses on cotton and fuel show that production was undoubtedly higher whereas it is found that the gross profit disclosed by this company is low. I conclude that full amount of sales have not been accounted for. It is expected that actually the rate of gross profit should have been higher this year. In view of the higher costs of establishment, I take it that the rate of about 40 per cent., i.e., near about the rate disclosed in 1942 accounts, should have been maintained. I add back the Rs. 36 lakhs for unaccounted sales." On appeal, the order of assessment was upheld by the Appellate Assistant Commissioner. The assessee then appealed to the Tribunal who reduced the gross profit to 35 per cent. on the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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