TMI Blog1989 (6) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicants, C. Voopen Co. and its two partners have challenged the order of the Additional Commissioner of Commercial Taxes, Bureau of Investigation, relating to the seizure made from the business place of the applicants on 9th July, 1975 under section 14(3a) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called "the BFST Act, 1941") and all proceedings relating thereto or thereunder. The challenge to the seizure of one exercise book only was not pressed at the hearing. They have also challenged the order dated 3rd March, 1982, passed by the West Bengal Commercial Taxes Tribunal and the subsequent assessments made on the basis of such order. They have further challenged the notices issued under section 7 of the Public Demand Recovery Act, 1913, and the certificates issued under sections 4 and 6 of the Act dated 23rd November, 1983. 3.. The applicants' case in so far as may be necessary for our present purposes, may be briefly stated thus: The applicant No. 1 is a firm dealing in stationery and toilet goods purchased locally and sold also in the local market in West Bengal. Their turnover having never exceeded the taxable quantum, they did not apply for registration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order of the Commercial Taxes Tribunal finding that the assessment was not void even though irregular, was not a proper order and that the fresh assessments made on the basis of such order consequently was unenforceable. He further contended that the assessments that have actually been made were based on no materials and could not, therefore, be sustained. 8.. On behalf of the respondents, Mr. Majumdar supported the order passed by the Commercial Taxes Tribunal by contending that the Tribunal was competent to remand the matter for fresh assessment according to law. He also contended that the applicants not having co-operated with the assessing authority by producing their documents at the time of hearing could not challenge the finding particularly when the assessment does not appear to be excessive or arbitrary. 9.. Mr. Roy Chowdhury in the first instance referred to the decision in the case of Sri Surajmal Jain v. Commercial Tax Officer reported in [1973] 32 STC 601 (Cal), in support of his contention that there is no provision in the BFST Act, 1941, which authorises the Commercial Tax Officer to fix and determine the liability to pay tax independent of and prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and we agree with this view. 10.. The main contention of the applicants in the writ application is that the initial order of the Commercial Tax Officer was bad in law and the Commercial Taxes Tribunal could not by remanding the case revalidate the same and thereby save limitation. According to Mr. Roy Chowdhury, by the time the order of the Commercial Taxes Tribunal was made, the period of limitation prescribed for making the assessment had already expired. It is also his contention that the initial order made by the Commercial Tax Officer was not merely an irregular order but an order made without jurisdiction and, therefore, void, ab initio. In support of this contention reliance was placed on the cases reported in [1973] 31 STC 379 (Cal) (Commercial Tax Officer v. B.C. Nawn Bros. Private Ltd.) and [1978] 42 STC 458 (Cal) (Debendra Ch. Das v. Commercial Tax Officer). In both these decisions it has been held that an assessment under the Act is an annual assessment and can be made only for an annual period. The statute does not provide for one comprehensive or consolidated assessment for several years. The principle enunciated in the decisions referred to above has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o jurisdiction, it is a nullity and is open to collateral attack. But an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law is not a nullity. It may be liable to be questioned in those very proceedings but subject to that it is good and not open to collateral attack. In that view of the matter, their Lordships held that if the proceedings for assessment were taken against non-registered dealer without the issue of a notice under section 10(1) that would be a mere irregularity in the assumption of jurisdiction. A similar view was taken by the Supreme Court in the case of Kamala Mills Ltd. v. State of Bombay reported in [1965] 16 STC 613. Upon a consideration of the decisions, we are unable to hold that the initial order of the Commercial Tax Officer was without jurisdiction. He undoubtedly had the jurisdiction to make the assessment. He fell into an error by clubbing together four years in making the assessment. That could not make the order a nullity even though it was undoubtedly an order made in contravention of the provision that assessments had to be made annually. 13.. The next part of the atta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing authority had before him materials to indicate suppressed purchases for considerable amounts. The dealer even though invited to explain, could not do so. On the other hand, his advocate appears to have declined to produce the books of accounts. Having considered the assessment orders for the four relevant years, we are unable to say that the assessing authority acted in an arbitrary or capricious manner. It is true that for the first year he had made a reference to previous assessments. There was, in fact, no previous assessment and, therefore, the reference was erroneous. But it seems that even though such a reference is there, the assessment actually made was substantially in conformity with the materials before him for the current year in question. The element of guess work appearing on the assessment was reasonable and cannot be said to be arbitrary or whimsical. 14.. In that view of the matter, we do not find any substance in the writ application filed before the High Court and which has eventually been transferred to this Tribunal and registered as RN-222(T) of 1989. It is significant to note that the dealer not only did not apply for registration but even took ..... X X X X Extracts X X X X X X X X Extracts X X X X
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