TMI Blog2020 (5) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... titution in favour of the petitioner. The respondents are now directed to conduct reassessment proceedings by granting reasonable opportunity to the petitioner of cross-examination in respect of the documents pertaining to the Krishi Upaj Mandi Samiti, Guna (M.P.) - Petition allowed. - WP.7965.2015 - - - Dated:- 11-5-2020 - Sheel Nagu and Rajeev Kumar Shrivastava JJ. Shri Pawan Kumar Dwivedi, learned counsel for the petitioner. Shri Ankur Mody, learned Additional Advocate General, for respondent/State. (1) This petition filed by a proprietorship firm u/Art.226 of the Constitution of India assails Annexure P-14 dated 31.01.2012 by which the revision of petitioner has been dismissed by upholding the reassessment of tax under the Central Sales Tax Act and corresponding penalty under the M.P. Commercial Tax Act in respect of the periods from 01.04.1993 to 31.03.1994 and from 01.04.1994 to 31.03.1995. (2) Learned counsel for the rival parties are heard on the question of admission. (3) The skeletal facts necessary for adjudication are that the business of the petitioner firm which is a registered dealer under the M.P. General Sales Tax Act, M.P. Commercial Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing aggrieved preferred an application u/Sec.39/62 of the M.P.GST/MPCT Act before the State Government vide Annexure P-12. The State Government vide Annexure P-13 remanded the matter to the Additional Commissioner, Commercial Tax, Gwalior (M.P.) vide order dated 03.10.2011. Thereafter, it is submitted that the Additional Commissioner, Commercial Tax, Gwalior (M.P.) initiated proceedings u/Sec.62(2) of the M.P. C.T. Act and passed final order on 31.01.2012 vide Annexure P-14 dismissing the revision petition and while doing so recorded the finding that since the period of assessment is of 1994- 95 vintage which is about 17 years old, the possibility of records being available with the Krishi Upaj Mandi Samiti, Guna (M.P.) is remote and therefore affording of opportunity for cross-examination will be an exercise in futility. (4) Accordingly, this petition has been filed challenging Annexure P-14 dated 31.01.2012 passed by the Additional Commissioner, Commercial Tax, Gwalior (M.P.)/Appellate Authority. (5) Learned counsel for the petitioner by relying upon State of Kerala Vs. K.T. Shaduli Grocery Dealer Etc. [(1977) 2 SCC 777] , Commissioner of Sales Tax, U.P., Lucknow and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee, one of the two conditions necessary for the applicability of Section 17, sub-section (3) being satisfied, the Sales Tax Officer can, after making such inquiry as he may consider necessary and after taking into account all relevant materials gathered by him, proceed to make the best judgment assessment and in such a case, he would be bound under the proviso to give a reasonable opportunity of being heard to the assessee. But in the other case, where a return has been submitted by the assessee, the Sales Tax Officer would first have to satisfy himself that the return is incorrect or incomplete before he can proceed to make the best judgment assessment. The decision making process in such a case would really be in two stages, though the inquiry may be continuous and uninterrupted the first stage would be the reaching of satisfaction by the Sales Tax Officer that the return is incorrect or incomplete and the second stage would be the making of the best judgment assessment. The first part of the proviso which requires that before taking action under sub-section (3) of Section 17, the assessee should be given a reasonable opportunity of being heard would obviously apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equally the right to cross-examine witnesses examined by the Sales Tax Officer. Here, in the present case, the return filed by the assessee appeared to the Sales Tax Officer to be incorrect or incomplete because certain sales appearing in the books of Hazi Usmankutty and other wholesale dealers were not shown in the book's of account of the assessee. The Sales Tax Officer relied on the evidence furnished by the entries in the books of account of Hazi Usmankutty and other wholesale dealers for the purpose of coming to the conclusion that the return filed by the assessee was incorrect or incomplete. Placed in these circumstances, the assessee could prove the correctness and completeness of his return only by showing that the entries in the books of account of Hazi Usmankutty and other wholesale dealers were false, bogus or manipulated and that the return submitted by the assessee should not be disbelieved on the basis of such entries, and this obviously the assessee could not do, unless he was given an opportunity of cross-examining Hazi Usmankutty and other wholesale dealers with reference to their accounts. Since the evidentiary material procured from or produced by Hazi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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