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Commissioner of Sales Tax Vs. Mulla Akbarally Tayabally - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberS.T. Ref. No. 22 of 1973
Judge
Reported in(1977)6CTR(Bom)309
ActsBombay Sales Tax Act, 1953 - Sections 14 and 15
AppellantCommissioner of Sales Tax
RespondentMulla Akbarally Tayabally
Appellant AdvocateT.R. Andhyarujina, Adv.
Respondent AdvocateB.C. Joshi, Adv.
Excerpt:
- - against this order, the respondent went in appeal but failed. even apart from this, once an objection regarding the jurisdiction of the said sales tax officer was taken, the documents relied on to establish such jurisdiction, in our opinion, should have been produced by the department before the tribunal, and this the department has failed to do. 5. in these circumstances, in our view the department has failed to show that the sales tax officer, enforcement branch, had any jurisdiction to pass the reassessment order in question or to issue the impugned notice under s......facts and in the circumstances of the case and on a true and proper interpretation of s. 15 of the bombay sales tax act, 1953, the tribunal was correct in law in holding that the sales tax officer (xvii), enforcement branch, greater bombay, could not initiate the proceedings under that section on the ground that the original assessment under s. 14 was made by the sales tax officer, e ward, bombay 2. whether on the facts and in the circumstances of the case and on a true and proper interpretation of s. 52 of the bombay sales tax act, 1953, the sales tax officer (xvii), enforcement branch, greater bombay, bombay, had valid jurisdiction to pass re-assessment order in the case of the respondent and the notice issued and the order passed under s. 15 were valid in law 3. the facts giving rise.....
Judgment:

Kania, J.

1. This is a reference under S. 34(1) of the Bombay Sales Tax Act, 1953 (hereinafter referred to as 'the said Act'), made at the instance of the Commissioner of Sales Tax.

2. The questions referred to us for our determination are as follows :

1. Whether on the facts and in the circumstances of the case and on a true and proper interpretation of S. 15 of the Bombay Sales Tax Act, 1953, the Tribunal was correct in law in holding that the Sales Tax Officer (XVII), Enforcement Branch, Greater Bombay, could not initiate the proceedings under that section on the ground that the original assessment under S. 14 was made by the Sales Tax Officer, E Ward, Bombay

2. Whether on the facts and in the circumstances of the case and on a true and proper interpretation of S. 52 of the Bombay Sales Tax Act, 1953, the Sales Tax Officer (XVII), Enforcement Branch, Greater Bombay, Bombay, had valid jurisdiction to pass re-assessment order in the case of the respondent and the notice issued and the order passed under S. 15 were valid in law

3. The facts giving rise to this reference are as follows : In respect of the period from 1st April, 1957 to 31st March, 1958, the respondent, a registered dealer under the said Act, was assessed by the Sales Tax Officer, E Ward, Bombay. This assessment was completed on 23rd June 1959. On 15th September 1960 the Sales Tax Officer, Enforcement Branch, raided the place of business of the respondent; the said raid being euphemistically referred to by the Tribunal as a 'visit'. This Sales Tax Officer found that certain turnover of purchases did not appear to be recorded in the regular books of account on the basis of which the returns were filed by the respondent. In view of this, the Sales Tax Officer, (XVII), Enforcement Branch (referred to hereinafter as 'the said Sales Tax Officer'), issued a notice on the respondent under S. 15 of the said Act for re-assessment, which notice was served on the respondent on 2nd March, 1966. On 28th July, 1966 the said Sales Tax Officer passed an order of re-assessment demanding certain tax from the respondent. Against this order, the respondent went in appeal but failed. The respondent then preferred a revision to the Deputy Commissioner of Sales Tax, who confirmed the order of the said Sales Tax Officer. The respondent then went before the Tribunal by way of second revision. At the hearing before the Tribunal, the respondent applied to be allowed to raise an additional ground regarding the jurisdiction of the said Sales Tax Officer to pass the re-assessment order. The learned Additional Government Agent appearing on behalf of the department raised no objection and this ground was allowed to be taken. The Tribunal followed the decision of its Special Bench in the case of M/s. Hansraj Vishram Ravani vs. State of Maharashtra and held that the said Sales Tax Officer, Enforcement Branch, had no jurisdiction to take re-assessment proceedings as the assessment was already completed by the Ward Sales Tax Officer and no proceedings were pending. It is the correctness of this conclusion which is sought to be decided by way of the questions raised before us.

4. The question, which we propose to consider first, is question No. 2 set out above, because in our opinion, if we come to the conclusion that the said Sales Tax Officer, Enforcement Branch, had no jurisdiction to pass the re-assessment order or to issue the notice under S. 15, the first question becomes academic. Before considering the contentions raised it may not be out of place to take note of some of the relevant provisions of the said Act and the rules framed thereunder. Sub-S. (1) of S. 3 of the said Act, which deals with the question of the taxing authorities, inter alia, provides that, for carrying out the purposes of the said Act, the State Government may appoint a person to be the Collector of Sales Tax and such other persons to assist the Collector as the State Government thinks fit. Sub-S. (2) of the said section provides that a person appointed under sub-S. (1) shall, within the limits of the area specified to be within his jurisdiction, exercise such powers as may be conferred and perform such duties as may be imposed on him by or under this Act. Rule 2(viii) of the Bombay Sales Tax (Procedure) Rules, 1954 provides that 'Sales Tax Officer' means in respect of any place of business of a dealer, the Sales Tax Officer, appointed as such with jurisdiction over the area in which such place of business is situated by the State Government under S. 3 of the said Act to assist the Collector. It appears to us that in view of the question of jurisdiction of the said Sales Tax Officer having been raised, it was for the Department to have produced such material before the Tribunal as was necessary, in the first place, to show that the said Sales Tax Officer was conferred with jurisdiction over the area in which the place of business of the respondent was situated or was conferred with jurisdiction, by any order, to deal with the case of the respondent. This is particularly so because it is apparent, and it is not disputed, that the Sales Tax Officer, E Ward, had already completed the assessment of the respondent and the case of the respondent must have been duly assigned to him. In these circumstances, in our view, it is clear that it was for the Department to bring before the Tribunal, being the final fact finding authority, all necessary material to show that the said Sales Tax Officer, Enforcement Branch, was conferred with jurisdiction to deal with the case of the respondent. In the present case, no such material appears to have been brought on record at all. It was urged by Mr. Andhyarujina, the learned counsel for the applicant, that this was because the objection to jurisdiction was taken by the respondent merely on the ground that it was the Sales Tax Officer, E Ward, who had completed the assessment of the respondent and hence the said Sales Tax Officer could not initiate the re-assessment proceedings at all. It is significant that even the letter of the respondent raising the objection to the jurisdiction of the said Sales Tax Officer has not been forwarded to us by the Tribunal, and this is because the department did not even refer to it in the list of documents which it desired should be sent to us with the Statement of the Case. Even apart from this, once an objection regarding the jurisdiction of the said Sales Tax Officer was taken, the documents relied on to establish such jurisdiction, in our opinion, should have been produced by the department before the Tribunal, and this the department has failed to do.

5. In these circumstances, in our view the department has failed to show that the Sales Tax Officer, Enforcement Branch, had any jurisdiction to pass the reassessment order in question or to issue the impugned notice under S. 15 of the said Act. For this reason, we answer question No. 2 set out above in the negative.

6. As far as question No. 1 is concerned, in our opinion, it would be purely academic to answer the same in view of our answer to question No. 2. It was urged by Mr. Andhyarujina that even the abstract question should be answered as to whether, irrespective of the facts of this case, a Sales Tax Officer, Enforcement Branch, could not initiate proceedings under S. 15 of the said Act merely on the ground that the original assessment under S. 14 was made by a Ward Sales tax Officer. We are really not called upon to decide such a question, because no such question has been raised before us. The question raised is on the facts and in the circumstances of the case, and, as we have already indicated earlier, the facts and circumstances of this case have not been fully brought out before the Tribunal at all. In these circumstances, we decline to answer question No. 1.

7. In view of the facts and circumstances of the case, we direct the applicant to pay to the respondent half the costs of this reference, such half costs being fixed at Rs. 150/-.


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