1. The petitioner in this writ petition has challenged the assessment order made by the Commercial Tax Officer (Additional Circle) South Kanara, Mangalore, dated 26th June, 1967, in respect of the assessment year 1957-58.
2. The petitioner was a registered dealer both under the Mysore Sales Tax Act, 1957, and the Central Sales Tax Act, 1956. For the assessment year 1957-58 the petitioner has submitted his return. The Commercial Tax Officer was of the opinion that the return submitted is not correct and, therefore, issued notice to the petitioner for taking action under section 12(2) of the Mysore Sales Tax Act. The petitioner filed his objections to the said notice on 20th May, 1959. The Commercial Tax Officer thereafter made a final order against the petitioner under section 12(3) of the Act. That order as challenged by the petitioner in Writ Petition No. 439 of 1959 before this court. This court by an order dated 12th December, 1960, set aside the order made by the Commercial Tax Officer under section 12(3) of the Act, and remitted the case to the Commercial Tax Officer with a direction to give reasonable opportunity to the petitioner for placing necessary material and satisfying the officer that the petitioner is not the first dealer in respect of the transactions.
3. After several years, a notice was issued by the Commercial Tax Officer on 5th May, 1967, to the petitioner. The petitioner filed his objections to the same and, inter alia, reiterated his assertion that he is not the first dealer and, therefore, not liable to tax. The petitioner further made a specific quest on 20th June, 1967, requesting the Commercial Tax Officer to call for the necessary information from the three dealers specified in the objections as well as the assessment records pertaining to the same which, according to the petitioner, would establish that the petitioner is not the first dealer in respect of the transactions in question. The Commercial Tax Officer did not aid the petitioner by summoning the records of the persons referred to in the quest made by the petitioner on 20th June, 1967. The Commercial Tax Office proceeded to make an order against the petitioner on 26th June, 1967, on the ground that the petitioner has failed to rebut the presumption under section 6-A(2) of the Mysore Sales Tax Act.
4. The only complaint of the learned counsel for the petitioner is that reasonable opportunity was not given to the petitioner to show cause as to why best judgment assessment should not be made under sub-section (3) of section 12 of the Act. It is clear from the provisions of section 28(1) of the Act that -
'Any officer empowered by the State Government in this behalf, may for the purpose of this Act, require any dealer carrying on business in any kind of goods to produce before him the accounts and other documents, and to furnish any information relating to the stocks of goods of, or purchase, sales and deliveries of goods by, the dealer and also any other information relating to his business.'
We find it difficult to accept the contention of Sri Shantharaju, learned High Court Government Pleader, appearing for the State, that the power under this section cannot be invoked to enable the petitioner to establish his contention. In our opinion, that power can be exercised by the officer concerned in order to ascertain the truth for purposes of making regular and proper assessment. That power can be exercised for the benefit of the department to satisfy itself about the correctness of the statement made by the dealers as well as for the benefit of the dealers who request that the said power may be exercised in order to enable them to place materials in support of their contentions. In our opinion, failure to exercise the power vested under section 28(1) of the Act in favour of the petitioner, amounts to denying an opportunity which the petitioner is undoubtedly entitled to under the proviso to sub-section (3) of section 12 of the Act.
5. It appears that it would facilitate the officer to exercise his power under section 28 in a proper way if the petitioner gives clear and precise details. The petitioner is therefore given an opportunity to do so and to request the officer to exercise the power under section 28 of the Act to summon the necessary materials.
6. For the reasons stated above, we quash the impugned order of assessment dated 26th June, 1967, and remit the case to the Commercial Tax Officer for fresh disposal in the light of the observations made in the course of this order. It is unnecessary to mention that the petitioner is entitled to raise all available contentions before the Commercial Tax Officer. No costs.
7. Petition allowed.