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N.C. Samasthanmath Vs. Commercial Tax Officer, I Circle, Hubli and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 1436 to 1438 of 1966
Judge
Reported inAIR1970Kant11; AIR1970Mys11
ActsBombay Sales Tax Act, 1953 - Sections 14(3), 14(4) and 31
AppellantN.C. Samasthanmath
RespondentCommercial Tax Officer, I Circle, Hubli and ors.
Appellant AdvocateB.V. Katageri, Adv.
Respondent AdvocateShantharaju, Adv. for ;E.S. Venkataramiah, High Court Spl. Govt. Pleader
Excerpt:
.....'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 tothe best of his judgment, the amount of the tax due from the dealer. ' 8. it is thus clear that no best judgment assessment under sub-section (4) is possible until that assessment is preceded by the notice properly issued under clause (a) of sub-section (3) and there is disobedience to that notice. so, it could not be said that there was failure to comply with the notices issued under sub-section (3) within the meaning of section 14 (4) such as could authorise a best judgment assessment under sub-section (4). 10. that being so, the subsequent acquisition of the power to make an assessment under the act by reason of his..........returns before another commercial tax officer, and ramasetty was the commercial tax officer who issued notices under section 14 (3) (a) of the bombay sales tax act which was then operating in the area with which we are concerned calling upon the dealer to produce evidence in support of his returns. one of the members of the petitioner's family who was carrying on the business to which the orders of assessment related appeared before ramasetty and produced evidence which ramasetty called upon the dealer to produce and on the production of that evidence, he made the impugned order of assessment. he purported to make them under section 14 (4) of the act. 2. from these orders of assessments, the petitioner appealed to the assistant collector, who dismissed them. there were second appeals.....
Judgment:

Somnath Iyer, J.

1. The petitioner is a dealer in Hubli and with respect to the turnover of his business in respect of three different periods starting on April, 1965 and ending on September, 30, 1967 three assessment orders were made by the concerned commercial tax officer. The commercial tax officer who made the assessments was one Ramasetty. But the petitioner had produced his returns before another commercial tax officer, and Ramasetty was the commercial tax officer who issued notices under Section 14 (3) (a) of the Bombay Sales Tax Act which was then operating in the area with which we are concerned calling upon the dealer to produce evidence in support of his returns. One of the members of the petitioner's family who was carrying on the business to which the orders of assessment related appeared before Ramasetty and produced evidence which Ramasetty called upon the dealer to produce and on the production of that evidence, he made the impugned order of assessment. He purported to make them under Section 14 (4) of the Act.

2. From these orders of assessments, the petitioner appealed to the assistant collector, who dismissed them. There were second appeals to the collector who dismissed these appeals on the ground that they were incompetent appeals. Then the petitioner presented revision petitions to the sales tax appellate tribunal under Section 31 of the Act and the tribunal took the view that since the appeals to the collector were incompetent appeals, the revision petitions were liable to be dismissed.

3. The orders of assessment so made by Ramasetty are called in question in these writ petitions on the ground that when he issued notices under Section 14 (3) (a) of the Act, he had not been appointed as a commercial tax officer but was only appointed subsequently.

4. The notices under Section 14 (3) (a) of the Act were issued on March 10, 1960, and it is undisputed that Ramasetty was appointed by Government as a commercial tax officer only on April 6, 1960. So, it will be seen that although Ramasetty was not a commercial tax officer on March 10, 1960 when he issued the notices under Section 14 (3) (a), he had become the commercial tax officer when he made the orders of assessments on May 31, 1962.

5. The orders or assessment made by Ramasetty state that the assessment was made under Section 14 (4) and, in a case like the one before us it is debatable whether the assessment could be made under Sub-section (4) of Section 14 or whether it could be made only under Section 14 (3) (b). Since we are deciding these writ petitions on another ground, it is not necessary for us to spend any time over that question.

6. Now, when the notices under Section 14 (3) (a) were issued by Ramasetty he issued those notices by reason of the fact that he was not satisfied with the correctness or completeness of the returns produced by the dealer. The power and the jurisdiction to issue a notice under Section 14 (3) becomes available to the concerned assessing authority only when he is satisfied that he could not accept the returns produced by the dealer as correct and complete without the production of further evidence which he may call upon the dealer to produce before him. When that notice is issued, the dealer is under a duty to produce under Clause (b) of Section 14 (3) the evidence which he is so called upon to produce and when he fails to do so, the assessing authority acquires the power to make best judgment assessment under Section 14 (4).

7. It will, therefore, be seen that the Dower to make a best judgment assessment such as the one which Ramasetty made in the cases before us becomes avail-able to the assessing authority only when a notice under Clause (a) of Section 14 (3) has been issued and there is failure to comply with that notice. Section 14 (3) (a) reads:

'(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.' Sub-section (4) of Section 14 reads: '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 tothe best of his judgment, the amount of the tax due from the dealer.'

8. It is thus clear that no best judgment assessment under Sub-section (4) is possible until that assessment is preceded by the notice properly issued under Clause (a) of Sub-section (3) and there is disobedience to that notice.

9. Now, in the cases before us, the notices under Section 14 (3) (a) were issued by Ramasetty when he was not a commercial tax officer and before he became one on April 6, 1960. So, the opinion which he formed under Section 34 (3) (a) that the returns produced by the dealer could not be accepted either as correct or complete without the production of further evidence which the dealer was called upon to produce was not an opinion formed under Section 14 (3) (a) since he was not the assessing authority when that opinion was formed. That opinion could not therefore, form the basis of the issue of a notice under that clause, and so, the notices issued by Ramasetty had no validity and the dealer was under no duty to comply with those notices. So, it could not be said that there was failure to comply with the notices issued under Sub-section (3) within the meaning of Section 14 (4) such as could authorise a best judgment assessment under Sub-section (4).

10. That being so, the subsequent acquisition of the power to make an assessment under the Act by reason of his appointment on April 6, 1960 did not bestow power on Ramasetty to make the best judgment assessment under Section 14 (4) in a case like the present one in which the notice issued by him under Sub-section (3) was issued without the authority of law.

11. In the view that we take, the orders of assessment made by Ramasetty are liable to be quashed and we quash them reserving liberty for the concerned assessing authority to proceed to make an order of assessment in all the cases before us in accordance with law.

12. In the view that we take, it becomes unnecessary for us to express any opinion on the correctness of the view taken by the collector and the sales tax appellate tribunal about the competence of the appeals which were preferred to the collector.

13. We reserve liberty for the petitioner to urge before the concerned assessing authority when he proceeds tomake an assessment in respect of the assessment years with which we are concerned all the contentions which are available to him including a plea of limitation.

14. No costs.

15. Petitions allowed.


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