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Commissioner of Sales Tax Vs. P. Ambalal and Co. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberS.T.R. No. 1 of 1973
Judge
Reported in(1977)6CTR(Bom)382
ActsBombay Sales Tax Act, 1953 - Sections 15
AppellantCommissioner of Sales Tax
RespondentP. Ambalal and Co.
Appellant AdvocateR.J. Joshi, Adv.
Respondent AdvocateB.C. Joshi, Adv.
Excerpt:
.....taxation - reassessment - sections 15 and 44 (2) of bombay sales tax act, 1953 - whether sales tax officer, enforcement branch has jurisdiction to pass reassessment order under section 15 in absence of valid order transferring proceedings from sales tax officer, b ward, bombay - no valid order under section 44 (2) - undated order was not valid order of transfer - for said reason sales tax officer, enforcement branch had no jurisdiction to reassess respondent. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he..........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 (x), enforcement branch, bombay, could not initiate the proceedings under that section on the ground that the original assessment under s. 14 of the said act was passed by the sales-tax officer, b ward, bombay-2 (2) whether, on the facts and in the circumstances of the cases, the tribunal was correct in law in holding that the sales tax officer (x). enforcement branch, bombay, does not get valid jurisdiction to pass reassessment order under s. 15 of the bombay sales tax act, 1953, in the absence of a valid order transferring the proceedings from the sales tax officer, b ward, bombay ?' 2. the.....
Judgment:

Madon, J.

1. In this Reference under S. 34(1) of the Bombay Sales Tax Act, 1953, the following two questions have been referred to us at the instance of the Applicant :-

'(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 (X), Enforcement Branch, Bombay, could not initiate the proceedings under that section on the ground that the original assessment under S. 14 of the said Act was passed by the Sales-tax Officer, B Ward, Bombay-2

(2) Whether, on the facts and in the circumstances of the cases, the Tribunal was correct in law in holding that the Sales Tax Officer (X). Enforcement Branch, Bombay, does not get valid jurisdiction to pass reassessment order under S. 15 of the Bombay Sales Tax Act, 1953, in the absence of a valid order transferring the proceedings from the Sales tax Officer, B Ward, Bombay ?'

2. The Respondents were registered as a dealer under the Bombay Sales Tax Act, 1953. Since their place of business was situate within the area of the jurisdiction of the Sale Tax Officer, Licence Circle, II Division, Bombay, the Respondents were filing their returns with the said Sales Tax Officer and were being assessed by him. The said Sales-tax Officer thus assessed the Respondents for the period April 1, 1957 to March 31, 1958. Subsequently, on August 27, 1962 the Respondents' place of business and the residence of one of their partners were raided by the Sales Tax-Officer (X), Enforcement Branch, Bombay, and certain books of account were seized. It appears from the statement of the case that thereafter the case was assigned to the said Sales Tax Officer (X), Enforcement Branch, for the purpose of reassessing the Respondents for the period September 19, 1956 to December 31, 1955 under S. 15 of the Bombay Sales Tax Act, 1953, and for assessing them for the period January 1, 1960 to September 30, 1962 under S. 33 of the Bombay Sales Tax Act, 1959, and under S. 9 of the Central Sales Tax Act, 1956. The said order of assignment was passed by the Deputy Commissioner of Sales Tax, Bombay City Division, Enforcement Branch, Bombay, and bore No. BENF-20/Assgn/P-3/44-A/1243 but did not bear any date. Thereafter on December 3, 1963 the said Sales Tax Officer (X), Enforcement Branch, issued a notice under S. 15 of the 1953 Act for reassessing the dealer, and he passed an order of reassessment on June 20, 1964. Against the order of reassessment an appeal was preferred by the Respondents which was dismissed by the Assistant Commissioner of Sales Tax on September 19, 1966. A revision application preferred therefrom to the Deputy Commissioner of Sales Tax was also rejected. The Respondents thereupon took the matter to the Tribunal in second revision. One of the contentions of the respondents inter alia was that there was no valid order under S. 44(2) of the 1953 Act transferring the proceedings from the said Sales Tax Officer, Licence Circle, II Division, to the said Sales Tax Officer (X), Enforcement Branch. Before the Tribunal reliance was placed by the Department upon the said undated order of assignment referred to earlier. The Tribunal, following its judgment in Messrs Hansraj Vishram Ravani v. The State of Maharashtra, held that the said undated order was not a valid order of transfer and that for the said reason the said Sales Tax Officer (X). Enforcement Branch, had no jurisdiction to reassess the Respondents.

3. At the hearing of this Reference Mr. R. J. Joshi, learned Counsel for the Applicant, stated that he did not rely upon the said undated order as an order of transfer, that the said order was merely an administrative order and stood on the same footing as an office note and that the said Sales Tax Officer (X), Enforcement Branch, derived his jurisdiction not from the said undated order but from the notification issued by the Government in the Finance Department, namely, Notification No. STA. 3056/XII dated June 4, 1956. Learned Counsel for the Applicant tendered before us a copy of the said notification as also a copy of the notification No. STA. 3056/ 140852-XII dated October 29, 1956. He also stated that both these notifications were published in the Bombay Government Gazette. According to him, by the said notification dated June 4, 1956 jurisdiction was conferred over the whole State of Bombay inter alia on the Sales Tax Officers of the Enforcement Branch, Bombay. He further stated that by the said notification dated October 29, 1956 ward wise jurisdiction was conferred upon the various Sales Tax Officers other than Sales Tax Officers in the Enforcement Branch specified therein.

4. Mr. B. C. Joshi, learned Counsel for the Respondents, objected to taking these notifications on the record.

5. The submission on behalf of the applicant before us was that by the said notification dated June 4, 1956 concurrent jurisdiction was conferred upon all Sales tax Officers of the Enforcement Branch, including the said Sales Tax Officer (X), Enforcement Branch, over the whole State of Bombay along with the other Sales Tax Officers who had ward wise jurisdiction and that, therefore it was open to the said Sales Tax Officer (X), Enforcement Branch, to initiate reassessment proceedings and to reassess the Respondents.

6. Now, all throughout it was the contention of the Department that the jurisdiction of the said Sales Tax Officer (X), Enforcement Branch, was derived from the said undated order. At no stage was it contended that this jurisdiction was derived from the said notification dated June 4, 1956. Neither the said undated order nor any other order which is before us on the record at any time referred to either of the two notifications of which copies have been sought to be tendered before us on behalf of the Applicant. Today what is contended is that by reason of the said notification dated June 4, 1956 the Sales Tax Officers of the Enforcement Branch were invested with jurisdiction concurrently with the Sales Tax Officers having ward wise jurisdiction. If so, several questions of law might arise; such as, for instance, if one of the two of officers has concurrent jurisdiction to initiate proceedings, whether the other can also at the same time initiate proceedings. A question might also arise, once proceedings have been initiated by one of these officers whether thereafter, in spite of the other officer having concurrent jurisdiction, a order of transfer under S. 44(2) of the 1953 Act would be necessary. None of these question have been argued before the Tribunal, and we have not had the benefit of the judgment of the Tribunal on the effect of the notifications sought to be relied upon by Counsel for the Applicant. It may further be mentioned that our experience shows that such notifications are repeatedly issued and subsequently superseded by fresh notifications. Even the two notifications, sought to he relied upon by Counsel for the Applicant, supersede earlier notifications. Further, at no stage till this Reference reached hearing were the Respondents ever informed that the impugned orders of reassessment were made in pursuance of jurisdiction said to be conferred by the said notification dated June 4, 1956. It may well be that these notifications themselves have been superseded by some other notifications before the said Sales-tax Officer (X), Enforcement Branch, issued the notices of reassessment in question. For these reasons we have refused to take these notifications on the record. The sole question before us today, therefore, is whether the proceedings in question were validly transferred from the Sales Tax Officer, Licence Circle, II Division, to the Sales Tax Officer (X), Enforcement Branch, by the said undated order. The Applicant does not seek to support the said order as an order transfer. The question No. 2 referred to us must, therefore, be answered against the Department.

7. For the reasons set out above, we answer question No. 2 in the affirmative.

8. Since question No. 2 has been answered in the affirmative, we find it unnecessary to decide question No. 1.

9. So far as the contention on behalf of the Applicant that the said Sales Tax Officer (X), Enforcement Branch, Bombay, had jurisdiction to reassess the Respondents by virtue of the said notification dated June 4, 1956, the Department may take up this contention before the Tribunal when the case goes back to the Tribunal for final orders if it is open to the Department to do so.

10. There will be no order as to costs of this Reference.


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