TMI Blog1978 (8) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... d year was valued at Rs. 8,018.53. No list of opening stock or inventory of closing stock was produced. Purchases were made by the petitioner personally at Calcutta and the expenses for the same was debited in the books at Rs. 117.50. Luggage tickets could not be produced. Goods worth Rs. 1,573.25 comprising mainly of readymade goods were purchased from Howrah Hat. The total sale was shown at Rs. 9,594.57 but no cash memos were issued and sales were recorded in a jabda by actual cash counting and no rough account or slips were maintained to record daily sales. That the jabda was written every day after close of the shop by a part-time accountant as claimed by the petitioner was rejected as there was no answer as to why the same could not be produced before the Inspector on 6th October, 1970, and for their absence at the shop on that day. There was no entry for payment of any salary to the part-time accountant, and only in the books of account for 1973 B. S. such salary for the said year was recorded at Rs. 120. By the said order, respondent No. 1 held that the petitioner was liable to pay sales tax with effect from 1st Baisakh, 1372 B. S., on the grounds that the purchases having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner was directed to attend at Coochbehar on 20th February, 1973, and to produce or cause to be produced the accounts and the documents specified in the said notice for the purpose of such assessments together with the objections thereto, if any, that the petitioner might have and any evidence in support thereof and, failing compliance, the assessment under section 11 of the said Act would be made to the best of his judgment by respondent No. 1 without reference to the petitioner. By the said notice 18 items of documents were required to be produced by the petitioner. Thereafter on 16th March, 1973, respondent No. 1 made an assessment of the petitioner under section 11(2) of the said Act for the period from 1st Baisakh to the last day of Chaitra, 1373 B.S. The petitioner did not produce his books of account as the same were produced at the proceedings initiated by respondent No. 1 for fixation of liability of the petitioner under the Act wherein the said order dated 19th January, 1973, was made. Respondent No. 1 relying on his said order dated 19th January, 1973, held that the accounts of the petitioner for 1373 B.S. must be unreliable like those for 1371 B.S. and estimated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re held that non-production of the books could not be condoned and assuming that the petitioner was sick and was advised rest, he instead of sending the medical certificate could have sent his books and records through his authorised representative, a chartered accountant, who was well-acquainted with the particular accounts and records, since he alone represented the petitioner before respondent No. 2 in the revisional case, and he would have therefore represented the petitioner. Respondent No. 1 observed that in terms of his original order under section 4(2), since set aside, the petitioner was liable to assessment under section 11(2) of the said Act for the year 1374 B.S., which assessment was required to be completed by 14th April, 1974, in view of section 11(2)(a) of the Act, but the petitioner was attempting to delay the final decision under section 4(2) of the Act with the motive of frustrating the possible assessment for 1374 B.S. and rejected the application for adjournment as not having much substance. Respondent No. 1 further observed that in the revision case respondent No. 2 made a threadbare discussion of the previous order made by respondent No. 1 on 19th January, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f account and records, etc., and evidence, failing which the matter would be decided ex parte without further reference. On the same day another notice was served on the petitioner on the same terms fixing the same date for hearing of the assessment cases Nos. 526, 527, 528, 529 and 530 for the years ended on the last day of Chaitra, 1374 B.S., to the last day of Chaitra, 1378 B.S. Thereupon, by a letter dated 29th March, 1974, the petitioner through his authorised representative, Sri A.K. Dutta, inter alia, challenged the said purported order dated 1st March, 1974, fixing the alleged liability of the petitioner and objected to the initiation of proceedings under section 11(2) of the Act, which was rejected by respondent No. 1 on the same day, that is, 29th March, 1974. Sri A.K. Dutta, the authorised representative of the petitioner, however, refused to produce any accounts or documents on the ground that no assessment could be made. Respondent No. 1 noted that although the petitioner was warned that assessments would be made on estimate to the best of his judgment, yet the said authorised representative stuck to his point. It was further noted that the said authorised representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that a consolidated order of assessment for several years was not permissible under the scheme of the Act. Each year being a separate unit, assessment should be made for each year separately and the said consolidated order of assessment under section 11(2) of the Act dated 29th March, 1974, as made by respondent No. 1, was contrary to the provisions of the Act, even if the same was made at the request of the petitioner or his authorised representative. The said order cannot be said to have been passed validly and lawfully. There being no estoppel against statute, no concession or admission by or on behalf of the petitioner could confer jurisdiction on respondent No. 1 to pass an illegal order or an order which he could not pass under the provisions of the Act. The next contention of Mr. Bhattacharya was that respondent No. 1 did not make any fresh enquiry or come to any fresh findings as directed by respondent No. 2 by his revisional order dated 19th December, 1973, but proceeded on the basis of, and placed reliance on, his previous order dated 19th January, 1973, purported to be made under section 4(2) of the Act which was non est having been set aside by respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said officer on 31st July, 1967, inter alia, held that Ridhakaran Surajmal effected inter-State sales on certain dates and was liable to pay tax from that date and directed issue of form Ill from 16th July, 1966, to 31st December, 1966. Thereafter by a notice dated 23rd August, 1967, issued under section 9 of the Central Act read with section 14(1) of the Bengal Act the petitioner was called upon to attend before the said officer on 29th September, 1967, with accounts and documents. In the said notice it was stated that the said officer was satisfied on information which came into his possession that the petitioner was liable to pay tax under the Central Act in respect of his business of Ridhakaran Surajmal and the petitioner failed to get himself registered in respect of his said business. The petitioner not having appeared pursuant to the said notice an ex parte assessment for Rs. 5,000 was made on an estimated turnover of Rs. 50,000 for the said period. The revisional application by the petitioner under section 9 of the Central Act read with section 20(3) of the Bengal Act before the Assistant Commissioner of Commercial Taxes did not succeed. Thereafter the petitioner was served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw which authorises the Commercial Tax Officer to fix and determine the liability to pay tax independent of and prior to an assessment which is made under the Act. Neither the Central Act nor the Bengal Act envisages a proceeding for determination of such liability which is ipso jure and ex hypothesi arises by reason of the charging section ..... The order made by him on 31st July, 1967, fixing such liability is without any jurisdiction," (b) Sudhir Ch. Mukherjee v. Additional Commissioner, Commercial Taxes, West Bengal[1976] 37 S.T.C. 554. Here a Division Bench of this Court considered inter alia the provisions of sections 4 and 11 of the Bengal Finance (Sales Tax) Act, 1941, and approving the decision in Surajmal Jain's case[1973] 32 S.T.C. 601. observed as follows: "On a scrutiny of the said provision it is evident that upon information received the Commissioner has to determine first that the dealer is liable to pay tax under this Act in respect of a certain period and he has failed to get himself registered or to obtain a special certificate and then the Commissioner shall proceed to assess the dealer in respect of such period and all subsequent periods after giving him a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo-monthly, quarterly, six-monthly, as the case(1) may be. Section 11 of the Act goes on to deal with the assessment of tax. These are all the material provisions in the statute itself. It seems to us that the tax can only be regarded as annual and the assessment as annual though returns may be quarterly or half-yearly." (d) An unreported decision of a single Bench of this Court in C.R. No. 2827(W) of 1973 (G.S. Bros. v. Commercial Tax Officer, Bhowanipore Charge). Here the question at issue was whether the dealer, who sold goods under hire-purchase agreements, was liable to pay sales tax in respect of hire-purchase agreements entered into with diverse parties which did not ultimately materialise in sales. The Commercial Tax Officer declined to decide the question of liability as to such hire-purchase transactions and threatened to stop issue of declaration forms to the dealer if he agitated and pressed the said question. The Commercial Tax Officer while seemingly professing not to tax the said hire-purchase transactions yet arbitrarily included them in the assessments on the ground that the dealer did not produce any statement of such transactions, although registers and other b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto the State of Orissa offered to make over possession of the lands to the appellant on certain terms and conditions which were accepted by the appellant. The State of Orissa therefore directed possession of the lands to be made over to the appellant with permission to carry on mining operation for a certain period with an assurance to renew the permission from year to year until finalisation of the lease and possession was delivered to the appellant. Thereafter for 3 years the respondents took no steps for the execution of the lease in spite of requests by the appellant. On 26th July, 1958, the State sent a draft lease to the appellant and on 22nd August, 1958, the same was returned by the appellant to the Collector of Keonjhar with suggested modifications for final approval of the same. The date of the execution of the lease was fixed by the Collector which was extended from time to time, at the instance of the appellant. On 25th October, 1958, the appellant made a representation to the respondents suggesting that an additional clause be incorporated in the lease to safeguard certain rights of the appellant created by amendment of rule 41(1)(ii) of the Mineral Concession Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. The Kerala High Court held that although the Income-tax Officer was entitled to use his knowledge of the previous return by the assessee but the same should have been put to the assessee and its explanation asked for and even if no appeal or revision had been filed by the assessee yet it was open to it to approach the High Court challenging the order of the Income-tax Officer on the ground of non-compliance with the principles of natural justice and that the same was a nullity and if the assessee had no opportunity to object to the procedure, which made the order a nullity, the fact that it did not raise objection in appeal or in revision should not be a ground for exercising the discretion of the court against the assessee. The Bengal Finance (Sales Tax) Act, 1941, is a fiscal statute and it fixes a liability on the subject. The provisions of a fiscal statute have to be strictly construed and applied. With regard to the order made by the Commercial Tax Officer on 19th January, 1973, or on 1st March, 1974, fixing the liability of the petitioner to tax under section 4(2) of the Act, respectfully following the decision of the Division Bench of this Court in Sudhir Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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