TMI Blog1995 (2) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... check-post, Mogra, in the district of Hooghly. The company has all along been paying entry tax for such goods. At the check-post, declaration form IV, invoices and other documents are filed by the company's clearing agent-respondent No. 4. The goods are allowed to enter into Calcutta Metropolitan Area after physical verification at the check-post and after payment of the assessed entry tax. Between September, 1982 and December, 1982, the applicant imported television sets worth Rs. 78,58,739.37 and paid tax. The company has been granted receipts in form No. V for such payment of tax. Applicant's clearing agent, respondent No. 4, paid the tax in cash at the check-post and got payment from the applicant by a/c payee cheques. Sometime in January, 1983, respondent No. 1 referring to a letter dated November 11, 1982, which was not received by the applicant, asked for statement regarding particulars of consignments during October, 1982. Respondent No. 1 again issued another letter dated April 18, 1983 and asked for evidence of conveyance of the goods, failing which he has threatened to take action under section 14(3) of the Entry Tax Act. Again, by another letter dated April 30, 1983, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the applicant's representative may go through the same and make submissions accordingly. The applicant requested for production of money receipts in form V and declaration in form IV, gate passes and lorry challans lying in the custody of the respondent No. 1. Apart from this the applicant also specifically asked for the presence of the officers who had signed the declaration forms and money receipts for confronting them whether they were admitting the same or not. The hearing was taken from time to time by the respondent No. 1 and inspite of repeated requests documents lying in the custody of respondent No. 1 or the persons who signed the declaration forms and money receipts were not produced. In the absence of those documents and persons the applicant had to submit a reply on December 3, 1983 to a show cause notice on insufficient materials. In the said reply to the show cause notice the applicant specifically asked for declarations in form IV, copies of money receipts in form V, gate passes, statement of witnesses and extracts of cash books from September, 1982 to December, 1982. Respondent No. 1 did not comply with the request of the applicant. He made an assessment order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had brought the 11 consignments of T.V. sets during the period from September, 1982 to December, 1982 without submitting any declaration in form IV and without paying any tax. Declarations in form IV produced by the applicant are manufactured and not genuine as they bear a seal different from the one used in the Hasenabad check-post. The money receipts are also tampered and interpolated as those were issued to one P.S. Co. for consignment of sand and not to the applicant. All papers having relation to the relevant assessment were shown to the applicant's representative who put his signature on the records in token of knowledge of the daily proceedings. There is no substance in the allegation that the applicant was not given a proper opportunity of hearing. The applicant has not been supplied with certified copies of form IV and money receipts in form V as they were in the name of another assessee, that is, P.S. Co. 4.. An affidavit-in-reply has been submitted by the applicant wherein he has reiterated his case in the main application. It has been specifically asserted that since no inspection has been allowed to the petitioner, particularly the copies of the declaration forms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessing officer and allowed them time till September 19, 1994. As the respondents could not find out as to what happened with the duplicate copies, we did not allow the respondents to bring on record their supplementary affidavit-in-opposition. 6.. Applicant's learned advocate, Mr. G.C. Mukherjee has taken two grounds for challenging the impugned demand notice dated December 8, 1983 (annexure "N") wherein taxes have been assessed at Rs. 1,35,349.50 and one time penalty under section 14(3) of the Entry Tax Act has been imposed upon the applicant for an amount of Rs. 1,35,349.50. His first ground is that tax for the disputed period from September, 1982 to December, 1982, has been fully paid at the check-post on submission of declarations in form IV as required by the law and that the applicant has received receipts in form V at the check-post on payment of the tax. Therefore, no assessment could be made against the applicant under the Entry Tax Act for the consignments brought during the said period from September, 1982 to December, 1982. His second contention is that the respondent No. 1 has made the assessment order under section 14(3) and has also imposed penalty under the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm IV submitted during the period from September, 1982 to December, 1982. (c) Copies of money receipts in respect of the money receipts issued and granted to the applicant. (d) Gate pass or lorry pass. (e) Statement, if any, made before the respondent No. 1. (f) Extract of cash book for the period from September, 1982 to December, 1982. Mr. G.C. Mukherjee, applicant's learned advocate, has submitted that there is no dispute that none of these documents specifically requisitioned by the applicant-dealer was produced or supplied to him. He has also contended that there is no dispute that the officials who dealt with the declarations in form IV or granted money receipts in form V with their signature and seal have not been tendered by the respondents at the time of hearing of the assessment proceeding on the order of the High Court in the earlier writ case. Mr. S.N. Bose, learned advocate appearing for the respondents, has contended that all papers having relation to the relevant assessment were shown to the petitioner's representative who put his signature on the records in token of knowledge of the daily proceedings. Respondents' learned advocate, Mr. S.N. Bose has drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the consignment note issued by the consignor, or a copy of the bill or invoice, in respect of the goods, signed by the person issuing such consignment note or bill or invoice, and to show cause why a penalty not exceeding ten times the tax that may be assessed on such goods should not be imposed on him for bringing the goods without payment of tax leviable under the Act. (7) If the dealer or his agent submits such declaration and shows such cause in compliance with the notice issued under sub-rule (6), the assessing officer to whom power has been delegated in this behalf shall, after due scrutiny of such documents, books of accounts and other records that may be produced and such inspection and examination of the goods as may be practicable and after making such further inquiry and verification as may be necessary and also after taking into consideration any submission made by the dealer or his agent in this behalf, make an assessment of the tax leviable on such goods under the Act to the best of his judgment. (8) If the dealer or his agent fails to comply with the notice issued under sub-rule (6), the assessing officer shall, after making such inspection and examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which were never submitted before the check-post authority. According to him, the original copies are kept with the assessment records and those were filed for consignment of sands brought by M/s. P.S. Co. As regards the cash receipts in form V produced by the applicant, the same Entry Tax Officer found all the 11 cash receipts as tampered and interpolated in respect of receipts which were granted to P.S. Co. for Rs. 5 only. He could not rely upon either the declarations in form IV or on the cash receipts and so he came to a decision that no entry tax was paid by the applicant-dealer in respect of 11 consignments during the period from September, 1982 to December, 1982. The Entry Tax Officer, Mr. T.K. Roy has referred to all the 11 receipts in form V in his order dated December 8, 1983. These receipts in form V have been produced by the applicant with the supplementary affidavit. Though the respondents in paragraphs 9 and 10 of their affidavit-in-opposition categorically asserted that they would produce the triplicate copies of receipts in form V lying at the check-post at the time of hearing in this Tribunal, they failed to do so. Respondents' learned advocate, Mr. S.N. Bose ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Rules the Entry Tax Officer is authorised to issue a notice in form VI when he upon information which has come to his possession is satisfied that goods have been brought into the Calcutta Metropolitan Area without payment of tax leviable thereon under the Act. Save the documents in the shape of declarations in form IV and tax receipts in form V and a statement (annexure "B") which was filed on May 4, 1983, there was no other document before the Entry Tax Officer produced by the applicant-dealer. The Entry Tax Officer therefore appears to have taken informations about the quantity, value and the particulars of lorries from the declarations in form IV and tax receipts in form V produced by the applicant. He has obviously chosen an irreconcilable approach. On the one hand, he has discarded the declarations in form IV as manufactured documents which were never submitted before the check-post authority and tax receipts in form V as tampered, interpolated and forged and which were actually for payment of Rs. 5 only. On the other hand, he has taken the necessary details from the same declarations in form IV and from the same tax receipts in form V and made an assessment of tax on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed July 27, 1983, in the earlier writ case (annexure "K") directed the Entry Tax Officer to act and to proceed according to law. We have already noted the requirement of law. The Entry Tax Officer while assessing tax and considering the question of penalty is required to observe the basic procedural requirement called as the rules of natural justice. In paragraphs 35, 36, 47, 48, 50 and 51 of his application the applicant has categorically stated how and in what manner the respondents have violated the principles of natural justice while making the impugned assessment. Except stating in paragraph 17 of their affidavit-in-opposition that papers having relation to the concerned assessment were shown to the petitioner's representative, nothing else has been stated by the respondents. The respondents have not even tried to meet the applicant's requisition for the presence of the check-post officials who had put their signature and seal at the time of arrival of the goods at the check-post and at the time of payment of tax. Though the Entry Tax Officer noted in his order dated December 8, 1983 that the applicant-dealer's representative was shown copies of form V and was also allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry tax, it was incumbent upon the authority to cause an in-depth investigation as to how as many as 11 consignments in 11 lorries have entered the Calcutta Metropolitan Area without being intercepted at the checkpost and at whose fault. When discrepancies were noticed between the triplicate copies of the form V receipts and the receipts produced by the applicant-dealer, it was only expected that the respondents would conduct a thorough investigation to ascertain if any leakage of revenue has taken place and if so, due to whose fault, connivance or conspiracy. Unfortunately, no such step has been taken. 12.. For the reasons stated above, the impugned assessment and imposition of tax would have to be set aside. We are convinced that no useful purpose would be served by giving an opportunity to the respondents to make fresh assessment under section 14(3) of the Entry Tax Act as such an opportunity, though given by the High Court in the earlier writ petition, has not been properly availed of by the respondents. Moreover, it is already on record that the duplicate copies of receipts in form V are not in the office and only some of the triplicate copies in form V are available in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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