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TMI Blog1999 (3) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1941 Act and then under the West Bengal (Sales Tax) Act, 1994. But the order of assessment dated June 18, 1992 under 1941 Act was made by respondent No. 1 and the consequential notices of demand were issued for the period of four quarters ending March 31, 1988 mentioning that the second applicant N.M. Jain was a partner of the business. The assessment was initiated by a notice in form VI where the second applicant was described similarly. "In an effort to keep the record straight and according to law", the first applicant filed an appeal on that ground, but it was rejected by respondent No. 2 allegedly in an arbitrary manner. The first applicant did not get favourable result even by filing a revision before the West Bengal Commercial Taxes Appellate and Revisional Board (in short, "the Board"). It is claimed that the trust has been carrying on the business, while N.M. Jain and P.D. Surana are trustees. Hence the order of assessment and levy of interest are alleged to be illegal and void. The applicants have referred to the definitions of "dealer" and "business" in 1941 Act as also to section 11A of that Act in support of their contention. Reference is also made to the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sole ground taken was that the notice in form VI, the order of assessment and the notice of demand, were all issued/made against the trustees in their individual capacity and not against the real owner, namely, the trust, owning the business. Respondent No. 2, the appellate authority, held that the applicant No. 1 appeared through representatives at the time of hearing of the assessment case and the levy of interest, and "he did not raise any objection as to the infirmity in the initiation notices in form VI". He noted the fact that his predecessor-in-office while hearing the stay petition, passed an order dated January 28, 1993. By the said order, the then appellate authority wanted to dispose of the appeal "outright". However, revised forms VII and VII-L were issued by the assessing authority in the names of trustees. It was also noted that the first applicant "appeared to have received revised forms VII and VII-L on June 22, 1993". Thereafter, respondent No. 2 held that assessment made without service of form VI or with an improper form VI may be at best an irregularity; it does not touch the jurisdiction of respondent No. 1 to assess. As the dealer had not raised any obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction was pointed out. It was laid down therein that an order passed by an authority with respect to a matter over which it had no jurisdiction, is a nullity; but an order passed by an authority having jurisdiction over the matter, but assuming it otherwise than in the mode prescribed by law, is not a nullity. After referring to all those authorities and precedent cases, the two-Member Bench of the Board held that non-description of the correct status of the trustees in the assessment notice in form VI and in the subsequent proceedings does not vitiate the proceedings or oust the competence of the assessing authority, particularly in view of the fact that after receipt of the notice in form VI no objection was raised by the dealer (the same dealer who is also the applicant here). 6.. The object of a notice in form VI is to make it known to the dealer on whom the notice is served, that an assessment proceeding is started. That object was duly fulfilled in the present case which concerns assessment of the period of four quarters ending March 31, 1988 under the 1941 Act. Although in the notice in form VI, N.M. Jain was described as a partner, the trade name was correctly described ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it must be held that the said trust represented by N.M. Jain and P.D. Surana, trustees, is the dealer in respect of the business carried on in the trade name of M/s. Power Sales & Service. As already held, the error in the designation of N.M. Jain and others in the notice in form VI (notice of assessment case) was there, but such error did not vitiate the notice, because the object of the notice had been fulfilled by the conduct of the dealer. The order of assessment carried the same error as in form VI. Therefore, when the object of the notice was fulfilled and no prejudice was caused to the dealer, there could be no prejudice also, when the order of assessment was made with the same error of description of the dealer. The error was partly rectified by issuance of fresh notice of demand in form VII and form VII-L by correctly describing the trustees. We approve of the view taken by the twoMember Bench of the Board in its order dated December 26, 1995, reported in (1996) 29 STC 53 (Power Sales & Service v. A.C.C.T. Chowringhee Circle) in this connection. There was no want of jurisdiction on the part of respondent No. 1 in spite of his commission of error in description. In our co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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