TMI Blog1973 (6) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 directed to issue form III from 16th July, 1966, to 31st December, 1966. By a notice dated 23rd August, 1967, issued under section 9 of the Central Act read with sections 11 and 14(1) of the Bengal Act the petitioner was called upon to attend before respondent No. 1 on 29th September, 1967, with accounts and documents. In the said notice, it is alleged that respondent No. 1 was satisfied on information which had come into his possession that the petitioner had been liable to pay tax under the Central Act in respect of the period 16th July, 1966, to 31st December, 1966, and that the petitioner is alleged to have failed to get himself registered. The said notice was addressed to the petitioner carrying on the business under the trade name of Messrs. Ridhkaran Surajmal. Respondent No. 1 thereafter made an order on 4th October, 1967, whereby he assessed the petitioner for a sum of Rs. 5,000 under the Central Act on an estimated turnover of Rs. 50,000 for the same period. As there was no appearance on behalf of the petitioner, the order was made ex Parte. It appears from the said order of assessment that respondent No. 1 had already determined the petitioner's liability to pay ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment and, secondly, the said order has been made in violation of the principles of natural justice as the petitioner at no stage was given any opportunity of being heard before the said order was made. I asked the learned counsel for the respondents specifically the question as to the particular section under which the order dated 31st July, 1967, was passed by Sri T.K. Dutta, Commercial Tax Officer, fixing the liability to pay tax from 16th July, 1966. The learned counsel submitted that this order has been passed under section 6 of the Central Act. It was further submitted that it is the practice of the sales tax department to pass such order under the aforesaid section in order to fix the particular date from which the dealer is held liable. It has also been submitted that the said order being in the nature of an administrative order does not require the petitioner to be given an opportunity of being heard before the making of such an order. To appreciate this contention it is necessary to examine some of the relevant provisions of the Bengal Act and the Central Act. Under the Central Act, the liability to pay tax on all sales effected by a dealer in the course of inter-Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix or determine the liability to pay sales tax by making an order under section 6 of the Central Act or under section 4 of the Bengal Act. That liability is created and determined by the charging section and is independent of the assessment. When a dealer is so liable to pay tax by reason of the charging section he is under an obligation to furnish a return within the prescribed date and before the prescribed authority. If no returns are filed the dealer incurs the liability to be penalised. If the Commercial Tax Officer is not satisfied that the returns furnished by a dealer are correct and complete or that if no returns are furnished by a dealer within the prescribed date, a best judgment assessment can be made under section 11(1) of the Bengal Act. It is at this stage that the Commercial Tax Officer proceeds to make an assessment to the best of his judgment. If, on the other hand, a dealer does not furnish any return at all, the Commercial Tax Officer can make an assessment to the best of his judgment under section 11(2) of the Bengal Act after giving such dealer a reasonable opportunity of being heard. Section 9(2) of the Central Act has adopted the procedural provisions prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to the subordinate authorities as it has been provided for in the case of the making of an assessment under section 11 of the Bengal Act. Having regard to the scheme of the Central Act as also the Bengal Act, respondent No. 1 had no such power for the determination of any such liability independently of any assessment proceeding. The order made by him on 31st July, 1967, fixing such liability is without any jurisdiction. It was next contended that even this order cannot be treated as one made by respondent No. 1 under section 6 of the Central Act, it should be construed as an order made in the discharge of his administrative function. It is, therefore, submitted that an administrative order like the present one need not be passed after giving the petitioner an opportunity of being heard. It is difficult to accept this contention which has neither any merit nor attraction. It is now well-settled by the decision of the Supreme Court in the case of A.K. Kraipak and Others v. Union of India A.I.R. 1970 S.C. 150., that the dividing line between an administrative power and a quasi-judicial power is becoming thin and gradually evaporating. The Supreme Court pointed out that in rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to make an enquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed. In other words, when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial: Province of Bombay v. Khusaldas S. AdvaniA.I.R. 1950 S.C. 222. The duty to act judicially may arise in widely different circumstances which it is neither possible nor desirable to attempt to define exhaustively. Such duty may arise even by implication from the effect of the exercise of a power upon the rights of individual, despite the absence of any express duty to follow a procedure analogous to the judicial. Even where the statute is silent as to the manner in which the power conferred should be exercised by the authority acting under it, the exercise of such power will depend upon the express provisions of the statute read along with the nature of the rights affected, the manner of disposal provided, the objective criterion if any to be adopted, the effect of the decision on the persons affected and similar other consideration: Board of High School and Intermediate Education, U.P. v. Gha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability to pay tax and also the time from which such liability is to arise. Such a determination affecting the civil rights of a citizen is based on an objective assessment of facts and cannot be considered to be a purely administrative act, but requires a judicial approach for arriving at such a decision. An assessment involves (i) the determination of the period for which the liability has arisen (ii) the quantification of such liability in accordance with the provisions of the Act. If proceedings for assessment have been held to be a judicial and/ or quasi-judicial proceeding, the determination of the liability in respect of a particular period is a step or a part of the proceedings for assessment. The proceedings for such a determination are by their very nature quasijudicial in character. Even if the order is considered to be an administrative order as it involves civil consequences, such order cannot be made without complying with the rules of natural justice. Counsel for the respondents frankly admitted that before such an order was passed the petitioner was not given any opportunity of being heard. He, however, referred to the report dated 28th January, 1967, made b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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