TMI Blog2000 (6) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... sional application filed against the order of the respondent No. 1. He questions the legality of the notice on the grounds, viz., (1) that it was issued in the trade name of his business and not in his name, and (2) that notice under rule 79 has nothing to do with a deemed assessment. He challenges the two orders on the ground that short payment turnover tax (TOT) and non-payment of interest cannot be the grounds for reopening of a deemed assessment. 2.. The respondents in their affidavit-in-opposition defend the impugned orders on the ground that there being no prescribed form for notice to be issued under section 11E(2) of the Bengal Finance (Sales Tax) Act, 1941 (in short, "the 1941 Act"), the notice in form IX was issued asking the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the partnership firm but the individual names of the two partners as the addressees. We too find nothing wrong in the notice. In the same notice names of the two persons, meant to be served with the notice, may be mentioned and service of a copy of such notice on one or each one of them amounts to good service so far as the firm's liability is concerned. Appearance of two names as the addressees will not invalidate the notice if the notice are intended to be served on each one of them. In the instant case before us a copy of the notice (mentioning the names of the two partners) was served upon the applicant, i.e., on one of the partners. The other partners being dead the question of service of a copy of such deceased partner does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we do not consider that mere mention of rule 79 will invalidate the whole proceeding. 5.. By the notice the addressees have been asked to prefer an objection, if any, against the order as is proposed to be passed to the effect mentioned at the bottom of the notice. But what is mentioned at the bottom of the notice is very cryptic and reads as thus: "Short levy TOT and non-payment of interest." Though at the top of right hand corner of the notice there is mention of "4 qr. March 91", one has to go by surmise to think that reopening of the deemed assessment is hinted at. If the provisions of section 11E(2) of the 1941 Act was in mind in issuing the notice, obviously the notice in referring to the proposed order must speak of proposed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, reopen in the prescribed manner the assessment for such period and, after giving such dealer a reasonable opportunity of being heard, make fresh assessment under sub-section (1) of section 11 for such period to the best of his judgment. " 7.. The Deputy Commissioner in his order under section 11E(2) in spelling out the grounds for his order of reopening has observed as follows: "Afterwards, it was detected that the dealer has submitted understated return resulting short payment of TOT and consequent interest thereon under the Bengal Finance (Sales Tax) Act, 1941." It is not the respondents' case that the applicant-firm concealed any sales or particulars thereof or furnished any incorrect statement of his turnover or incorrect pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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