9911796707
TMI Blog1998 (5) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... of account and documents and a fresh hearing. But in the process, certain questions of law have been urged. 2.. The facts leading to this application are that the applicant No. 1 is a partnership-firm and applicant No. 2 is one of the two partners. The firm is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 (in short, "the 1941 Act"). It carries on the business of manufacture and sale of oil tankers. An order of assessment dated March 28, 1990 was made by respondent No. 1 under the 1941 Act for the period of four quarters ending June, 1986. An appeal was preferred therefrom and it was fixed for hearing on November 27, 1992. On that date, allegedly the applicant's advocate fell ill and could not appear, nor did he send a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of those documents and simply prayed for remanding the case to the authority below for giving the applicants one more opportunity of being heard. The Board did not send back the case on remand and held that the claims were not substantiated by the applicants. Accordingly, the revision application was dismissed and the order of appellate authority was confirmed. 4.. As regards the appellate authority's order (earlier referred to), it was contended by Mr. A.K. Roy, learned Advocate, for the applicant, that when the appeal was being disposed of "ex parte", it could not be summarily disposed of in the manner it was done. He submitted that even in the absence of the applicants, the appellate authority ought to consider the points urged and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of the appeal in absence of the applicant, to indicate that he had applied his mind and had considered the claim in the proper context. Instead, what he did was merely to find that the grievance of the petitioner was not substantiated because his representative was not present. This indicates that the officer failed to apply his mind and failed to determine the point involved in the appeal. It was his duty to consider the materials before him, as to whether the claim under section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941, should or should not be allowed. This he could have done upon his own independent judgment on a perusal of the records." 6.. No further discussion of this point is necessary, because we are ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays down that the assessed dues shall be demanded from the assessee (in prescribed form No. VII) by specifying a date which shall be not less than thirty days from the date of service of the notice. Sub-section (4) of section 11 makes it clear that no recovery proceeding can be commenced without service of a valid notice under section 11(3). There are two important elements in a demand notice: (a) the amounts assessed as tax or penalty and (b) the date by which the payment should be made and such date must not be less than thirty days from the date of service of the notice. When one of the elements is missing, the notice becomes invalid, but such invalidity of the notice does not make the order of assessment invalid in any manner. The appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by their advocate who appeared before the Board for such production. The learned State Representative, Mr. M.C. Mukhopadhyay opposed this submission. He argued that the Board gave an opportunity to produce the documents before it, but the applicants failed to avail of the same. Rather their advocate merely wanted a remand to the appellate authority. 10.. It is now well-settled that the revisional authority under section 20 of the 1941 Act enjoys wide powers in the matter of hearing a revision arising from an assessment. He can play the role of an appellate authority or even the assessing authority to some extent for this purpose, vide [1976] 38 STC 1 (SC) (Ram Kanai Jamini Ranjan Pal Pvt. Ltd. v. Member, Board of Revenue, West Bengal) a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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