TMI Blog2000 (7) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... s under section 9(4) of the Tripura Sales Tax Act, 1976 in respect of the firm of the petitioner. In these civil rules the orders passed by the Additional Commissioner of Taxes, Government of Tripura, Agartala, in appeal dated January 1, 1992 and January 3, 1992 are also challenged. 4.. Civil Rule Nos. 32 of 1992 and 34 of 1992 arise out of an order dated January 18, 1992 passed by the Certificate Officer, Government of Tripura, Agartala, imposing penalty under section 13 of the Tripura Sales Tax Act, 1976 (hereinafter referred to as "the Act"). 5.. The brief fact of the case is that the petitioner submitted return based on his own estimation of sale of bricks, bats, etc., manufactured by him in his brick kiln. The said returns were for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 12, 1990. It is also evident from para 11 of the affidavit-in-opposition. Mr. Saha, the learned Government Advocate has also produced the record in support of this contention. The last letter dated December 12, 1990 which is available in the record is quoted below: "No. SDR/ST/2377/88/4459 GOVERNMENT OF TRIPURA OFFICE OF THE SUPERINTENDENT OF TAXES CHARGE-IV: AGARTALA Dated, Agartala, the 12th December, '90. To M/s. Hill Development Co., Hariganga Basak Road, Agartala. Whereas it appears from the scrutiny of the seized book on 23rd February, 1990 that you have not brought into account the sale proceeds of 10,84,157 Nos. of bricks into account during the year 1989-90 and tried to evade the payment of due tax on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of section 20 of the Act. Section 20 and proviso (ii) are quoted below: "20. Appeal.-(1) Any dealer objecting to an order of assessment or penalty passed under this Act, may, within thirty days from the date of the service of such order, appeal to the prescribed authority against such assessment or penalty: ................... (ii) Provided further that the authority before whom an appeal has been filed may, for reasons to be recorded in writing, direct the appellant to pay any lesser amount which shall not be less than fifty per cent of the tax assessed or fifty per cent of the penalty levied and, on payment of the amount so directed, entertain the appeal. 7.. Against the orders of penalty also appeals were filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Newspaper Ltd. [1919] AC 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant Co. [1935] AC 532 and Secretary of State v. Mask Co. AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." Though there is force in this contention of Mr. Saha, I am not inclined to throw out these writ petitions on this ground after lapse of eight years and I want to go to the merits of the matter. 9.. The learned counsel for the petitioner strenuously submits that the search and seizure itself was illegal and in connection with this h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GLR 461 (Dwijendra Kumar Bhattacharjee v. Superintendent of Taxes, Government of Tripura, Agartala) wherein in paragraph 10 (paragraph 11 in GLR) a division Bench of this Court on this particular Act itself laid down the law as follows: 10.. The assessing officer cannot rely on any evidence or any fact in arriving at his conclusion without first pointing out the same to the assessee and giving him a reasonable opportunity of meeting the case which is sought to be made out in the assessment order. In other words, though the assessing officer can make such inquiries he considers necessary he must give an opportunity of being heard to the assessee in respect of any materials proposed to be used for the purpose of assessment. Even in cases wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the dealer did not disclose the sale of a particular quantity of bricks as found by the authority. On the other hand, regarding the best judgment assessment, Mr. Saha, the learned Government Advocate relies on a decision of the Supreme Court reported in [1973] 32 STC 77 (Commissioner of Sales Tax, Madhya Pradesh v. H.M. Esufali H.M. Abdulali) wherein the Supreme Court has pointed out as follows: "In estimating any escaped turnover, it is inevitable that there is some guess-work. The assessing authority while making the 'best judgment' assessment, no doubt, should arrive at its conclusion without any bias and on rational basis. That authority should not be vindictive or capricious. If the estimate made by the assessing authority i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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