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Khurjawala Buckles Mfg. Co. Vs. Commissioner, Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc Writ No. 1636 of 1964
Judge
Reported inAIR1967All378; [1965]16STC778(All)
ActsConstitution of India - Articles 226 and 277
AppellantKhurjawala Buckles Mfg. Co.
RespondentCommissioner, Sales Tax and anr.
Appellant AdvocateHari Swarup, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....a dispute - must not take part in discharge of justice - onus lies on petitioner to establish such bias - sales-tax officer who had passed the best judgment assessment order was personally biased - court satisfied that assessment order passed by him were vitiated by such bias. - - in his statement he stated that when he reached the premises of the petitioner, the petitioner as well as his father pushed him out and threatened him that if he would not get away, he will be thoroughly thrashed and that the petitioner's father took out his shoe and ran after him in order to beat him. sales tax act as well as under the central sales tax act. 10,000/-.all these assessments were best judgment assessments. sales tax act as well as under the central sales tax act. 8. the law with respect to..........226 of the constitution prays that the assessment orders passed by sri. v.d. singh, assistant sales tax officer, aligarh, for the assessment years 1960-61 and 1961-62 under the u. p. sales tax act and the central sales tax act be quashed. when the petition came up for hearing an objection as to the maintainability of a single petition inasmuch as it sought to challenge four assessment orders, was raised. brother manchanda considered the question to be one of importance. he referred it to a division bench. the division bench held that one writ petition for the quashing of two assessment orders pertaining to two assessment years or one petition for the quashing of the two assessment orders under two different taxing statutes, even though the assessee is the same and the assessing.....
Judgment:
ORDER

S. Chandra, J.

1. This petition under Article 226 of the Constitution prays that the assessment orders passed by Sri. V.D. Singh, Assistant Sales Tax Officer, Aligarh, for the assessment years 1960-61 and 1961-62 under the U. P. Sales Tax Act and the Central Sales Tax Act be quashed. When the petition came up for hearing an objection as to the maintainability of a single petition inasmuch as it sought to challenge four assessment orders, was raised. Brother Manchanda considered the question to be one of importance. He referred it to a Division Bench. The Division Bench held that one writ petition for the quashing of two assessment orders pertaining to two assessment years or one petition for the quashing of the two assessment orders under two different taxing statutes, even though the assessee is the same and the assessing authority is the same cannot be entertained. When the case came back before the single Judge the petitioner filed three additional sets of court fees to regularise the defect. The petitioner seeks to challenge the validity of four assessment orders. The petitioner has now paid four sets of court fees. The position is as if there were four writ petitions seeking to set aside the four assessment orders.

2. The petitioner commenced the business of manufacture and sale of buckles at Aligarh in or about December 1960. This business continued till December 1962, when it is alleged to have been suspended. In or about August 1962, Sri. V.D. Singh was one of the Assistant Sales Tax Officers at Aligarh. On 10th of August 1962 he came to the petitioner's business premises in order to make a survey for the purpose of assessment of Sales Tax. Some altercation took place between Mr. Singh and the petitioner and his father Mr. Singh lodged a report with the police authorities with respect to this incident. He appears to have gone again with police force and conducted a survey of the petitioner's business. He inspected the petitioner's account books and signed them at various places. The inspection was done only on 10-8-1962, but Sri. Singh dated some of his signatures as 10-7-1962 and others as 10-9-1962 and still others as 10-8-1962. According to the petitioner, this was done by Mr. Singh deliberately in order to discredit the petitioner's account books, but according to Sri V. D. Singh, the wrong dates were put by him in confusion. The report filed by Sri V. D. Singh with the police culminated in the prosecution of the petitioner under Section 353 I. P. C. Sri. V.D. Singh appeared as a witness in the criminal court. In his statement he stated that when he reached the premises of the petitioner, the petitioner as well as his father pushed him out and threatened him that if he would not get away, he will be thoroughly thrashed and that the petitioner's father took out his shoe and ran after him in order to beat him. Thereupon Mr. Singh took police force and again went back to the petitioner's premises and conducted the survey. The petitioner was convicted by the trial court. He went up in appeal and was successful there. The appellate court acquitted him. An appeal against the order of acquittal has been filed in the High Court.

3. On 9-9 1962 Sri. V.D. Singh served on the petitioner a notice directing him to show cause why he should not be prosecuted under the U. P. Sales Tax Act. Mr. Singh also served a notice under Section 21 of the U. P. Sales Tax Act on the petitioner for the assessment years 1960-61, 1961-62. On 10-9-1962 the petitioner approached the Commissioner, Sales Tax, U. P., Lucknow with an application praying that the aforesaid cases under the Sales Tax Act which have been initiated by Shri. V.D. Singh be transferred to another Sales Tax Officer as Sri Singh was illdisposed towards the petitioner. While his application for transfer was pending, Sri. V.D. Singh passed the assessment orders on 29-11-1962. The jurisdictional limit of Sri. V.D. Singh was Rs. 40,000/-. He could not assess a dealer at a figure higher than this. The petitioner was assessed at a turnover of Rupees 40,000/- for each of the years 1960-61 and 1961-62, both under the U. P. Sales Tax Act as well as under the Central Sales Tax Act. On the samedate the petitioner was also assessed for the first quarter of 1962-63 on a turnover of Rs. 10,000/-. All these assessments were best judgment assessments.

4. Aggrieved, the petitioner filed appeals against these assessment orders. The Assistant Commissioner (J) Sales Tax, Aligarh Range, Aligarh, by his judgment dated 6-1-1964 allowed all the four appeals, set aside the assessment orders and remanded the cases back for fresh assessments according to the directions given by him. He observed that the Assistant Sales Tax Officer has riot mentioned any material evidence or ground on which became to the conclusion that the sales have taken place during 1960-61 and that for the year 1961-62 no proper basis for the determination of turnover has been mentioned and that the turnover determined appears to be arbitrary, and not connected with the relevant facts. He directed that fresh assessment should be made after making a proper and detailed enquiry into the nature and extent of the petitioner's business. Similarly the appeal against the assessment for the first quarter of 1962-63 was allowed and the matter remanded by an order which was passed in September 1963. When this case came back to the file of the same officer viz. Sri. V.D. Singh the petitioner made an application for its transfer. The Commissioner, Sales Tax, dismissed this application on 13-1-1964 with the observation:

'Let applicant apply to the A. C. (J) who remanded the case if he wants a transfer from the file of the officer to whom A. C. (J) remanded the case.'

5. 13-1-1964 appears to have been fixed by Sri. V.D. Singh for the consideration of the petitioner's case for the assessment year 1962-63. The same day Sri. V.D. Singh again passed an assessment order. By this time the jurisdictional limit of Sri. V.D. Singh had been raised to Rs. 60,000/-. As chance would have if Sri. V.D. Singh enhanced the petitioner's turnover for 1962-63 to Rs. 60,000/- and assessed him on this turnover, although according to the petitioner, the business itself had been closed down in December, 1962.

6. The cases for the assessment years 1960-61 and 1961-62 also came back to Sri. V.D. Singh. 18-3-1964 was fixed for their hearing. On 16-3-1964 the petitioner filed another application for transfer before the Commissioner, Sales Tax. The petitioner stated all the circumstances and alleged that he had no hope of getting any justice at the hands of Sri. V.D. Singh and that the cases be transferred to some other officer. The same day the petitioner was informed that his application has been rejected. The petitioner thereafter appeared before Sri. V.D. Singh on 18-3-64 and made a written application praying that the transfer application has been rejected by the learned Commissioner and that he wishes to apply to the High Court in a writ for the transfer of the files. This application was supported by an affidavit. It requested that the hearing be adjourned for ten days to enable him to take the requisite steps in this respect. Sri. V.D. Singh rejected this application stating:

'Application for adjournment rejected as no reason for adjournment was found to be genuine.'

Thereafter Sri. V.D. Singh proceeded to pass the assessment orders for the two years. By these impugned orders dated 18-3-1964 the petitioner has been assessed to tax on a fixed turnover of Rs. 60,000/- for each year both under the U. P. Sales Tax Act as well as under the Central Sales Tax Act. It is not stated in the assessment orders or in the counter-affidavit filed by Sri. V.D. Singh that he had conducted any further enquiry into the matter as directed by the appellate order. On the basis of these assessment orders Sri. Singh issued notices of demand against the petitioner. The total demand made for these two years under both the Acts came to Rs. 10800/-. The petitioner states that the assessment orders have been passed in gross violation of the directives given by the appellate remand order. It also states that the assessment orders are substantially a repetition of the previous assessment orders except for the figures of the turnover. The assessment orders are passed substantially on the survey conducted by Sri. V.D. Singh on August 10, 1962. Paragraph 20 of the writ petition states that August 10, 1962 was a Friday and a closed day and that this fact was noted in the register which was signed by Sri Singh. It is also stated that on that day the establishment was closed under the provisions of the U. P. Shops and Commercial Establishments Act and neither any machine was working nor any mechanic was working and the statement to the contrary in the assessment orders is patently false. Sri. V.D. Singh in paragraph 20 of his counter affidavit stated that the allegations made in paragraph 20 of the writ petition are wrong andare denied. No further details are given as to whether the entire contents of paragraph 20 are wrong or only some of them. From a perusal of the calendar of 1962 it appears that 10th of August, 1962 was a Friday.

7. The sole point urged in support of this petition is that the assessment orders have been passed by an officer who suffered from bias against the petitioner and as such the orders are null and void.

8. The law with respect to bias and the principles governing it are fairly well settled. The Supreme Court has spoken on more than one occasion on this topic.

9. In Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425, the law was summarised as follows:--

'It is well settled that every member ofa tribunal that is called upon to try issues in Judicial or quasi-judicial proceedings must beable to act judicially and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In suchcases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the Tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.'

10. In Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468 the Supreme Court reiterated that the

'principles governing the 'doctrine of bias' vis-a-vis judicial tribunals are well settled and they are: (i) no man shall be a judge in his own cause, (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not take part in the decision or sit on the tribunal: and that any direct pecuniary interest, however small, in the subject-matter of enquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it is sufficiently substantial to create a reasonable suspicion of bias.

11. In both these cases it was further held that these principles are quite applicable [o authorities though they are not courts of justice or judicial tribunals but who are empowered to discharge quasi-judicial functions.

12. Bias can be of two kinds; official or personal. Official bias is when a person acts as a party and as a judge in the same cause, in his official capacity or sits in appeal over his own judgment. Personal bias is suggested by attributing inter alia bad faith or ill-will operating in the mind of the tribunal as against the litigant or where the officer is acting with a view to satisfy some private or personal grudge against the litigant. In such cases it becomes necessary to see whether there is reasonable ground for assuming the possibility of a bias because a man's state of mind is very difficult to prove by direct evidence. Hence it is pertinent to enquire whether the circumstances and the facts are such as are likely to produce in the mind of the litigant, a reasonable doubt about the fairness of the concerned officer or tribunal

13. In S. Partap Singh v. State of Punjab AIR 1964 SC 72, it was held that if the act is in excess of the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the Court. In such an event the fact that the authority concerned denies the charge of mala fides, or asserts the absence of oblique motives or of its having taken into consideration improper or irrelevant matter, does not preclude the Court from enquiring into the truth of the allegations made against the authority and affording appropriate reliefs in the event of the allegations being made out. When a court is satisfied that there is an abuse or misuse of power, it isincumbent on the court to afford justice to theindividual litigant.

14. In this case the Supreme Court also declares that he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, or abuse or misuse of power. Their Lordships observed:

'We must, however, demure to the suggestion that, mala fide in the sense of impropermotive should be established only by directevidence that is that it must be discernible fromthe order Impugned or must be shown from thenotings in the file which preceded the order.If bad faith would vitiate the order, the samecan, in our opinion, be deduced as a reasonable and inescapable inference from provedfacts.'

It is, therefore, to be examined whether petitioner has been able to establish that Sri. V.D. Singh was biased i.e. he bore ill-will to the petitioner. The affidavits filed by the parties show that at the time of survey on 10th of August 1962 an incident took place for which there was a hot altercation between the petitioner and Sri. Singh. This incident led to the petitioner's criminal prosecution at the instance of Sri Singh. The petitioner was acquitted, but the matter has been taken up in appeal against that acquittal. At the survey conducted by Sri. Singh, wrong dates were put at various places, without any satisfactory explanation. Sri. Singh has not made any attempt to undo the wrong and rectify the dates put by him on the petitioner's account books. Sri Singh also threatened the petitioner with prosecution under the U. P. Sales Tax Act. This was done shortly after the incident at the time of the survey. It is also clear that the petitioner made several attempts to get the cases transferred from the file of Sri. Singh. He approached Sri Singh with a prayer for adjournment for a short time to enable him to approach the High Court for transfer. Sri. Singh rejected the prayer on the ground that no genuine reason was found for the adjournment. The order is cryptic and there is nothing to indicate even in the counter-affidavit filed by Sri. V.D. Singh, as to what led him to think that the petitioner's statement supported as it was by an affidavit that he wished to approach the High Court was not genuine. Sri. V.D. Singh passed best judgment assessments upto his jurisdictional limit against the petitioner on a turnover of Rupees 40,000 in the first instance and on a turnover of Rupees 60,000 after remand, on practically the same materials. All these facts make it clear that Sri. V.D. Singh had a personal bias against the petitioner. He, therefore, could not have taken part in the assessment proceedings. The assessment orders are, for these reasons, vitiated and are null and void.

15. It was urged for the respondent that the doctrine of bias is excluded in a case of necessity, that is, where the statute confers jurisdiction only on one officer and on other officer has jurisdiction. Section 7 of the U. P. Sales Tax Act confers jurisdiction on 'the assessing authority' to assess a dealerto Sales Tax. Section 2 (a) defines an 'assessing authority' to mean any person authorised by the State Government to make an assessment. Rule 2 (4) of the Rules framed by the State Government under this Act defines 'Sales Tax Officer' to mean a Sales Tax Officer of a circle appointed by the State Government to perform the duties and exercise the powers of an assessing authority in such circle. Under Rule 80, the Commissioner, the Additional Commissioner, the Deputy Commissioner and the Assistant Commissioner (executive) have all the powers exercisable by the Sales Tax Officer. Thus all these officials can act as the assessing authority. Rule 81 authorises the Commissioner to transfer any case or class of cases pending before any Sales Tax Officer to another Sales Tax Officer. There is no averment in the affidavits that there was no other officer in the same circle to whom the cases could be transferred. The Commissioner did not refuse to transfer on this ground. In one instance he referred the petitioner to the Assistant Commissioner judicial. The respondents have failed to establish that no other officer except Sri. Singh had jurisdiction to assess the petitioner. The principle of statutory exception or authorisation is hence not attracted to this case.

16. It was then urged that the petitioner had an alternative remedy of going up in appeal. An alternative remedy is not an absolute bar to the maintainability of a petition under Article 226 of the Constitution. It is only one of the circumstances relevant to the decision whether the case is a fit one for interference. Where there is a patent denial of justice, the superior courts readily issue certiorari. Bias is an illegality touching jurisdiction. In State of U. P. v. Mohd. Nooh AIR 1958 SC 86, S.R. Dass, C. J., observed as follows:--

'If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fairplay the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it. It confirmed what ex facie was a nullity.'

In the instant case the petitioner has made out a just case for interference.

17. The petition is allowed. The assessment orders dated 18th of March, 1964 forassessment years 1660-61 and 1961-62 underthe U. P. Sales Tax Act as also under the CentralSales Tax Act are quashed. The notices ofdemand consequential to these assessmentorders are also set aside. The petitioner willbe entitled to his costs.


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