TMI Blog1971 (5) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... tained. A copy of the order of the Tribunal is annexure D to the petition. It is in these circumstances that this court was moved under articles 226 and 227 of the Constitution to get the impugned orders, annexures B, C and D quashed. A few facts necessary for the disposal of the writ petition may be stated. The petitioner has been purchasing paddy regularly at different intervals from various dealers for use in the rice mill. Schedule C to the Act gives a list of goods, the acquisition whereof for consideration amounts to a purchase within the meaning of the Act. Rice and paddy are shown as two distinct commodities at serial Nos. 8 and 9 of this Schedule. They were included as separate items vide Punjab Government Notification No. S.O. 7/P.A. 46/48/S. 31/68 dated 15th January, 1968, with the obvious result that with effect from that date tax was payable separately on the purchase of either of these two types of goods. Every dealer is required under the Act to submit to the Assessing Authority returns in the prescribed form S.T.VIII-A annually, quarterly or monthly, as the case may be, showing the purchases made by him for the relevant period. The petitioner submitted his return fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjab General Sales Tax Rules, 1949 (hereinafter described as the Rules). A reply dated 12th February, 1969, to the show cause notice was given to the Assessing Authority on 13th February, 1969. It was pleaded that section 19(7) of the Act was not applicable and that if the Assessing Authority was of the opinion that the return in form S.T. VIII-A was in any way incorrect or incomplete, the only course open to it was to make best judgment assessment under section 11(2) of the Act for which notice in form S.T. XIV was required to be served. When Shri Khosla and his counsel appeared before the officer on 13th February, 1969, they were asked to produce the accounts on the following day. Sarna is not much distant being only 4 miles from Pathankot and no objection was taken by the representative of the petitioner-firm that the time granted to them was in any way insufficient. None appeared on 14th February, 1969, in spite of having undertaken to do so and respondent 4 then passed an order imposing a penalty of Rs. 1,25,000.00 as it worked out on the basis of the tax which was leviable on the purchases said to have been made by the petitioner. As already stated, an appeal against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. I have given my thoughtful consideration to the various contentions of the learned counsel but I have not been able to persuade myself to hold that the return, as submitted by the petitioner, was not false so as to attract penalty. The only question before the Assessing Authority was whether the return filed by the petitioner contained any information which was false or incorrect in any material particular within the meaning of section 10(7) and there can be no manner of doubt that relevant information about the purchases made by the petitioner during the quarter in question had been withheld. As a matter of fact, the purchases were shown as nil. Before taking up the other contentions of the learned counsel, I shall first deal with the last one relating to the alleged want of reasonable opportunity to defend himself against the charges as levelled in the show cause notice. What is a reasonable opportunity depends on the facts and circumstances of each case and no hard and fast rule can be laid down. The petitioner challenged the validity of the notice and submitted his reply dated 12th February, 1969, in which Shri S. K. Khosla, partner of the firm, undertook to appear persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four miles from there. If the counsel was not available, the partner who appeared the previous day could have presented the application himself to the Assessing Authority and made a request for adjournment but instead he chose a circuitous course of sending letter by registered post. In the background of this conduct of a partner of the petitioner-firm, no value can be attached to the other contentions. It was open to the petitioner to establish by production of records or other evidence that the transactions as a result whereof he acquired goods did not amount to purchases but he did not avail of the opportunity given to him. The records were withheld and no other evidence was produced. Mr. D. S. Nehra, learned counsel for the petitioner, vehemently argued that the transactions did not amount to purchases but the learned counsel failed to appreciate that it is a matter of evidence and in. the absence of there being any data to that effect it is not possible for this court to pronounce as to the nature of the transactions. The argument of the learned counsel is that the petitioner acted bonafide inasmuch as in the covering letter dated 30th January, 1969, with which the return wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve taken action under section 10(7) by way of imposition of penalty for an allegedly incorrect or false information in the return. However desirable it may be for an Assessing Authority, in the circumstances of a particular case, to wait till the assessment is finalised and the falsity of the return finally established, but an Assessing Authority is not under the law prevented from taking action under section 10(7) if the circumstances of the case so warrant. Sections 11 and 10 are independent of each other and the Legislature could not have intended that no action can be taken under section 10 till assessment has been completed under section 11. These two sections deal with separate subjects and the Assessing Authority has to exercise its discretion in each case in a reasonable manner in determining whether it should impose penalty before the assessment is completed or stay hands till then. If it finds that the incorrectness or falsity of the information as given in the return is writ large it is not bound to defer action under section 10(7). The mere fact that the Act contains no provision for returning money wrongly imposed as penalty does not warrant the assumption that action ..... X X X X Extracts X X X X X X X X Extracts X X X X
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