Skip to content


Rajaram Factory, Hubli Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberT.R.C. Nos. 31 and 32 of 1965
Judge
Reported inILR1966KAR180; (1966)1MysLJ135; [1966]18STC43(Kar)
ActsBombay Sales Tax Act, 1953 - Sections 14(5), 15, 34 and 34(1); Mysore Sales Tax Act, 1957 - Sections 23
AppellantRajaram Factory, Hubli
RespondentState of Mysore
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateG.B. Kulkarni, High Court Government Pleader
Excerpt:
.....the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at a place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns or such other evidence as may be specified in such notice. (4) if a dealer having furnished returns in respect of a period fails to comply with the terms of the notice issued under sub-section (3), the collector shall assess to the best of his judgment, the amount of the tax due from the dealer. (5) if a dealer does not furnish returns in respect of any period by the prescribed date, the collector shall, after giving the dealer a reasonable opportunity of..........now turn to the contentions urged on behalf of the assessee. 6. chapter v of the 'act' deals with returns, assessment, payment, recovery, composition and refund of tax. for our present purpose, the relevant sections are, sections 13, 14 and 15. section 13 deals with the return to be made. it reads : '(1)(a) every registered dealer, and (b) and other dealer whose turnover of sales or turnover of purchases the collector has reason to believe is likely to exceed the limits specified in sub-section (1) of section 5, if required so to do by the collector by notice served in the prescribed manner, shall furnish such return by such dates and to such authority as may be prescribed : provided that the collector may, subject to such terms and conditions as may be prescribed, permit any dealer.....
Judgment:

Hegde, J.

1. These are references under section 34(1) of the Bombay Sales Tax Act, 1953, to be hereinafter referred to as the 'Act'. The two references raise identical questions of law. The same assessee has filed these two applications. Hence, they will be dealt with together.

The questions of law referred for the opinion of this Court are these :

(i) On the facts and circumstances of the assessee's case, whether the assessment order passed by the Commercial Tax Officer, Hubli, in the assessee's case for the half-year ending 30th September, 1957, is barred by limitation

(ii) Whether the failure on the part of the assessing authority to issue a notice under section 15 of the 'Act' has vitiated the assessment

(iii) On the facts and circumstances of the assessee's case, whether the assessment under section 14(5) of the 'Act' was permissible in the eye of law, in the assessee's case

and

(iv) On the facts and circumstances of the assessee's case, whether the assessee's failure to furnish a return of turnover brings the assessee's case within the purview of section 15 of the 'Act'

2. Mr. K. Srinivasan, the learned counsel for the assessee at the outset of his arguments represented that the first question has not been properly formulated, as the Tribunal should have also included therein the assessee's assessment for the year ending 31st March, 1957. From the facts of the cases to be presently stated, it is obvious that the parties as well as the Tribunal overlooked the assessee's challenged to the validity of assessment for the year 1956-57. The Tribunal had merely adopted the questions formulated in the assessee's applications. Hence the assessee should blame itself for the error. As we have come to the conclusion, for the reason to be presently stated, that all questions referred to us should be answered against the assessee, we do not think that there is any need either to re-frame the first question or to ask the Tribunal to submit a fresh question for the opinion of this Court.

3. The facts material for the purpose of deciding these references are : The assessee is carrying on business in Hubli under the name and style of Messrs Rajaram Factory. The assessee is challenging the validity of its assessment for the assessment year 1956-57 as well as for the first half of the year 1957-58. For both those periods the assessee did not submit any return. No notice was issued to the assessee requiring it to file any return. The assessment proceedings were initiated by the Commercial Tax Officer, Hubli, after issue of a notice in Form 13, as contemplated by section 14(5) of the 'Act'. The stand taken by the department is that the impugned assessments were made under section 14(5). It was conceded that a notice in Form 13 was given to the assessee before the period of limitation fixed under section 15 of the 'Act'. According to the assessee, these cases fall under section 15; no action having been taken under that provision within the periods prescribed therein, the assessments in question are invalid. We have to see whether that contention is correct.

4. Before going into the contentions noticed above, it is necessary to refer to the two preliminary objections taken by the learned Government Pleader. He contended that on the facts found by the Tribunal, no question of law could have been referred to this Court under section 34. His second objection was that if the assessee was aggrieved by the order of the Tribunal, the only remedy available to it was to move this Court under section 23 of the Mysore Sales Tax Act, 1957. It was urged that in view of the provisions in that Act, no reference under section 34 of the 'Act' could have been made. Neither of these two objections appears to have been taken before the Tribunal. We have not found it necessary to go into those objections as we have come to the conclusion that the questions referred should be answered against the assessee.

5. We shall now turn to the contentions urged on behalf of the assessee.

6. Chapter V of the 'Act' deals with returns, assessment, payment, recovery, composition and refund of tax. For our present purpose, the relevant sections are, sections 13, 14 and 15. Section 13 deals with the return to be made. It reads :

'(1)(a) Every registered dealer, and

(b) and other dealer whose turnover of sales or turnover of purchases the Collector has reason to believe is likely to exceed the limits specified in sub-section (1) of section 5, if required so to do by the Collector by notice served in the prescribed manner, shall furnish such return by such dates and to such authority as may be prescribed :

Provided that the Collector may, subject to such terms and conditions as may be prescribed, permit any dealer required to furnish returns under this section, to furnish them for such different periods as he may direct. (1A) If in consequence of any information which has come into his possession, the Collector is satisfied that either the turnover of sales or the turnover of purchases of any dealer has, during any year, exceeded or is likely to exceed -

(a) Rs. 8,000, in the case of a dealer falling under clause (i) or (ii) of sub-section (1) of section 5;

(b) Rs. 20,000, in the case of any other dealer, he may be notice served in the prescribed manner require such dealer to furnish returns as if he were a dealer liable to pay tax, but no tax shall be payable by such dealer otherwise than in accordance with the provisions of this Act.

(2) If any dealer having furnished returns under sub-section (1) discovers any omission or wrong statement therein, he may furnish a revised return before the expiry of three months next following the period to which such return relates.'

7. Every assessee has to submit his return within the time prescribed by the Rules. He is not entitled to any notice calling upon him to submit his return.

Section 14 deals with assessment of tax. That section says :

'(1) The amount of the tax due from a registered dealer shall be assessed separately for each year during which he is liable to pay the tax :

Provided that when a dealer has failed to furnish any return relating to any period in a year by the prescribed date, the Collector may, if he thinks fit, assess the tax due from such dealer separately for different parts of such year :

Provided further that the Collector may, subject to such conditions as may be prescribed, and for reasons to be recorded in writing, assess the tax due from any dealer during a part of a year. (2) If the Collector is satisfied without requiring the presence of a dealer or the production by him of any evidence that the return furnished in respect of any period are correct and complete, he shall assess the amount of the tax due from the dealer on the basis of such returns.

(3)(a) If the Collector is not satisfied without requiring the presence of a dealer who has furnished his returns or the production of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at a place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns or such other evidence as may be specified in such notice.

(b) On the date specified in the notice or as soon afterwards as may be, the Collector shall, after considering such evidence as the dealer may produce and such other evidence as the Collector may require on specified points, assess the amount of the tax due from the dealer.

(4) If a dealer having furnished returns in respect of a period fails to comply with the terms of the notice issued under sub-section (3), the Collector shall assess to the best of his judgment, the amount of the tax due from the dealer.

(5) If a dealer does not furnish returns in respect of any period by the prescribed date, 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.

(6) 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.

(7) In cases where the Collector, while making an assessment under sub-section (6), is satisfied that the dealer has wilfully failed to apply for registration, the Collector may direct the dealer to pay by way of penalty, in addition to the amount of the tax assessed under sub-section (6), a sum not exceeding one and half times that amount.

(8) Any assessment made under this section shall be without prejudice to any prosecution for an offence under this Act.'

8. Section 15 provides for the assessment of a turnover escaping assessment. The main part of that section reads :

'If in consequence of any information which has come into his possession the Collector is satisfied that any turnover in respect of sales or purchases of any goods chargeable to the tax has escaped assessment in any year or has been under-assessed or assessed at a lower rate or any deductions have been wrongly made therefrom, the Collector may, in any case where he has reason to believe that the dealer has concealed the particulars of such sales or purchases or has knowingly furnished incorrect returns, at any time within five years, and in any other case, at any time within three years, of the end of that year, serve on the dealer liable to pay the tax in respect of such turnover a notice containing all or any of the requirements which may be included in a notice under sub-section (3) of section 14 and may proceed to assess or reassess the amount of the tax due from such dealer and the provisions of this Act shall apply accordingly as if the notice were a notice served under that sub-section.'

9. The provisos thereto are not relevant for our present purpose. Section 14(2) provides that if the Collector accepts the return furnished by an assessee, as court and complete, he has merely to assess the tax due from the dealer on the basis of his return. If the Collector is not satisfied about the correctness or completeness of the return submitted, he may require the presence of the dealer who has furnished the return or the production of evidence that the return furnished in respect of any period is correct and complete. In that event, he has to serve on the dealer concerned, a notice in the prescribed form requiring him, on a date and at a place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which he may rely in support of his return or such other evidence as may be specified in such notice. In such a case he has to assess the amount of tax due from the dealer after considering such evidence as the dealer may produce and such other evidence as the Collector may require on specified points. If the dealer fails to comply with the terms of the notice issued under section 14(3) the Collector is authorised to assess him on best of judgment basis.

10. Sub-section (2) and (3) of section 14 deal with assessments on the basis of returns. Sub-section (4) of section 14 deals with assessments on the basis of best of judgment. Sub-section (5) of section 14 is important for our present purpose. That sub-section provides that if a dealer does not furnish returns in respect of any period by the prescribed date, 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. This section deals with the assessment of turnovers which have not been assessed. Section 15, as mentioned earlier, deals with turnovers which have escaped assessment. Before making assessment under section 15, the assessing authority is required to serve on the dealer liable to pay tax, a notice within the time prescribed therein. He can proceed to assess the dealer only after the service of such a notice.

11. In view of the decision of the Supreme Court in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur and Others : [1964]51ITR557(SC) , we have to hold that a turnover which has not been assessed and in respect of which no assessment proceedings were initiated within the time prescribed has to be held as an escaped turnover. On the authority of that decision we have to further hold that assessment proceedings relating to that turnover should be initiated within the time prescribed for assessing the escaped turnover. But, Mr. Srinivasan wants us to go further and hold that such a turnover can only be assessed in accordance with the provisions contained in section 15. In other words, his contentions were that not only the assessment in such a case should be made within the time prescribed by section 15, but before making that assessment, the notice contemplated by section 15 should have been given. He contended that without such a notice no assessment is permissible. He said that in the case before us no notice under section 15 having been given the assessment made are not valid. According to him, this conclusion logically follows from the decision of the Supreme Court in Ghanshyamdas case : [1964]51ITR557(SC) . We are unable to accept that contention of Mr. Srinivasan as correct. If his contention is right then section 14(5) would become otiose. A construction which leads to such a conclusion is impermissible under law. It is true, that the field covered by section 15 to an extent overlaps the field covered by section 14(5). Section 14(5) deals only with assessment; while section 15 deals with assessment as well as assessment. Turnovers which have not been assessed may fall both under section 15 as well under section 14(5). A period of limitation is prescribed under section 15 but not such period is prescribed under section 14(5). But in view of the decision of the Supreme Court in Ghanshyamdas case ([1963] 14 S.T.C. 976), the period prescribed under section 15 must be held to govern proceedings under section 14(5). This harmonious construction became necessary as otherwise an assessing authority by having recourse to section 14(5) can make section 15 ineffective in the case of turnovers which have not been assessed. But there is no justification for going further and holding that all turnovers unassessed should be dealt with only under section 15, as if section 14(5) does not exist in the 'Act'. It is wrong to think that section 14(5) has no place in the 'Act'. We know of no rule of construction which permits ignoring any provision in a statute. Further we find no adequate reason to treat that provision as a surplusage.

12. As mentioned earlier, a turnover which falls within section 14(5) also falls within section 15. The assessing authority may either assess that turnover under section 15 or under section 14(5). If he adopts the former course, he has to give a notice in Form 14. But if he adopts the latter he has to issue a notice in Form 13. But in either case he has to give the required notice within the time prescribed under section 15. In the present cases the assessing authority had proceeded to assess the assessee under section 14(5). He had given to the assessee a notice in Form 13 and that notice was given within the time prescribed by section 15. Therefore, we see nothing illegal about it.

13. The next contention of Mr. Srinivasan was that, though notice in Form 13 was given within three years from the end of the assessment year, the assessments were made after three years and hence they are invalid. According to him, section 15 requires that the assessment under that provision should be made within three years from the end of the year of assessment. He contended that the expression 'proceed to assess' in section 15 really means 'assess'. In support of that contention, he placed reliance on the majority judgment of the Punjab High Court in Rameshwar Lal Sarup Chand v. Shri U. S. Naurath, Excise and Taxation Officer, Assessing Authority, Amritsar and Another ([1964] 15 S.T.C. 932). For the purpose of these cases, it is not necessary to examine the correctness of that decision. What is required under section 15 of the 'Act' is to serve on the dealer liable to pay tax a notice within the period mentioned in that section and thereafter proceed to assess. In other words, under section 15, a limitation is prescribed for issuing the notice contemplated by that section and not for making the assessment. As mentioned earlier, a notice in Form 13 had been issued to the assessee within three years from the end of the assessment year.

14. For the reasons mentioned above, we answer all the questions referred to us against the assessee. In other words, we hold that the assessments in question are not barred by limitation; the failure on the part of the assessing authority to issue a notice as required by section 15 has not vitiated the assessment; the assessments under section 14(5) were permissible; and lastly that though the assessee's failure to furnish a return of his turnover brings his case within section 15, at the same time it also falls within section 14(5) and consequently the impugned assessments were validly made.

15. The assessee to pay the costs of the department. Advocate's fee Rs. 100 (one set).

16. Reference answered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //