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Commissioner of Sales Tax Vs. Jamnadas Brothers (Pvt.) Ltd. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSales Tax Reference No. 79 of 1978
Judge
Reported in[1986]62STC110(Bom)
Acts Bombay Sales Tax Act, 1959 - Sections 33(6) and 35
AppellantCommissioner of Sales Tax
RespondentJamnadas Brothers (Pvt.) Ltd.
Excerpt:
.....any dealer has been liable to pay the tax in respect of any period but has failed to apply for registration, the collector shall, after giving the dealer a reasonable opportunity of being heard, assess to the best of his judgment, the amount of the tax, if any, due from the dealer in respect of such period and all subsequent periods. it is well-settled that section 14(6) of the act of 1953 corresponds to and is in pari materia with section 33(6) of the bombay sales tax act, 1959, and section 15 of the act of 1953 corresponds to and is in pari materia with section 35 of the bombay sales tax act, 1959. in state of gujarat v. incidentally, it may be mentioned that it was held in that case that there is no overlapping between the provisions of section 33(6) and section 35 of the bombay..........section 5 of the act of 1953. consequently, a notice in form xiii under rules 15 and 16 of the bombay sales tax (procedure) rules, 1954, was issued and served on the dealer on 10th december, 1965. the said notice is as required under section 14(6) of the said act of 1953. the dealer was accordingly assessed in respect of the entire aforesaid period 1st april, 1954, to 31st december, 1959, as an unregistered dealer by the sales tax officer (xii), enforcement branch, bombay, by his order dated 31st may, 1966. a penalty of rs. 1,070 under section 14(7) for the wilful failure of the dealer to get himself registered was imposed and the total demand for the tax and penalty made on the dealer came to rs. 6,429.67. on appeal to the assistant commissioner, sales tax, the demand for tax as.....
Judgment:

Kania, J.

1. The question referred to us for determination in this reference under section 34(1) of the Bombay Sale Tax Act, 1953 (referred to hereinafter as 'the Act of 1953'), is as follows :

'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessment of the respondent made by the Sales Tax Officer, Enforcement Branch, Bombay, for the period from 1st April, 1954, to 31st December, 1959, was barred by limitation ?'

2. The respondent-dealer had its place of business at Calcutta. The respondent was not registered as a dealer under the said Act of 1953. It imported goods into India from outside the country and part of these goods were sold in the then State of Bombay. It was found that the sales made by the dealer in the then State of Bombay exceeded the prescribed limit under section 5 of the Act of 1953. Consequently, a notice in form XIII under rules 15 and 16 of the Bombay Sales Tax (Procedure) Rules, 1954, was issued and served on the dealer on 10th December, 1965. The said notice is as required under section 14(6) of the said Act of 1953. The dealer was accordingly assessed in respect of the entire aforesaid period 1st April, 1954, to 31st December, 1959, as an unregistered dealer by the Sales Tax Officer (XII), Enforcement Branch, Bombay, by his order dated 31st May, 1966. A penalty of Rs. 1,070 under section 14(7) for the wilful failure of the dealer to get himself registered was imposed and the total demand for the tax and penalty made on the dealer came to Rs. 6,429.67. On appeal to the Assistant Commissioner, Sales Tax, the demand for tax as well as quantum of penalty were reduced and the total demand was modified to Rs. 3,139.30. Both the tax demand and the penalty were reduced proportionately. A revisional application preferred by the dealer before the Deputy Commissioner of Sales Tax was dismissed. A second revisional application was preferred by the dealer to the Maharashtra Sales Tax Tribunal. Relying upon and following decision in the case of M/s. J. K. Govani (Second Appeal No. 594 of 1968 decided on 30th April, 1970) and one other decision, the Tribunal held that the assessments for the period 1st April, 1954, to 31st December, 1959, were beyond the period of limitation as prescribed under section 15, and therefore, it set aside the assessment order. The question referred to us arises from this decision of the Tribunal.

3. Chapter V of the Act of 1953 deals with returns, assessment, penalty, recovery, composition and refund of tax. Section 14 in Chapter V of that Act deals with the assessment of tax. Sub-section (6) of section 14 runs as follows :

'If upon information which has come into his possession, the Collector is satisfied that any dealer has been liable to pay the tax in respect of any period but has failed to apply for registration, the Collector shall, after giving the dealer a reasonable opportunity of being heard, assess to the best of his judgment, the amount of the tax, if any, due from the dealer in respect of such period and all subsequent periods.'

Section 15 of the Act of 1953 deals with the subject of turnover escaping the assessment. It is well-settled that section 14(6) of the Act of 1953 corresponds to and is in pari materia with section 33(6) of the Bombay Sales Tax Act, 1959, and section 15 of the Act of 1953 corresponds to and is in pari materia with section 35 of the Bombay Sales Tax Act, 1959. In State of Gujarat v. Patel Ramjibhai Danabhai : [1979]3SCR788 , the Supreme Court held that section 33(6) of the Bombay Sales Tax Act of 1959 is, in terms, restricted in its application to the case of an unregistered dealer whose modus operandi to evade tax involves ab initio disregard of the law. It does not apply to a registered dealer whose turnover has escaped assessment or has been under-assessed or assessed at a lower rate or who has been wrongly allowed any deductions or has concealed any material particulars relating to sales or purchases or has knowingly furnished incorrect returns. It has further been held in that case that no limitation is prescribed for taking action under section 33(6) of the Bombay Sales Tax Act, 1959, against an unregistered dealer falling thereunder. Incidentally, it may be mentioned that it was held in that case that there is no overlapping between the provisions of section 33(6) and section 35 of the Bombay Sales Tax Act, 1959, or between section 14(6) and section 15 of the Act of 1953.

4. In our view, this decision of the Supreme Court clearly covers the dispute before us and in view of the same, the question referred to us must be answered in the negative and in favour of the department.

The respondents to pay to the department the costs of this reference.

5. Reference answered in the negative.


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