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Footer Mal Megh Raj Vs. the Commissioner, Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Reference No. 663 of 1969
Judge
Reported in[1971]28STC361(All)
AppellantFooter Mal Megh Raj
RespondentThe Commissioner, Sales Tax
Appellant AdvocateP.N. Pachauri, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
.....were rejected as unreliable. 4,714 and odd, the extra turnover which had been included in the original assessment on best judgment principle was liable to be deducted ? (3) whether the notice issued under section 21 of the u. the notice is intended to inform the assessee of the proposed action by the assessing authority and also to inform him clearly as to what is required of him. the assessee's contention is that the original assessment itself was a best judgment assessment inasmuch as an addition of rs. similarly, no such set off can be allowed of any addition made on best judgment assessment basis in the original assessment against a supplementary assessment under section 21, if the latter is based upon a different source altogether. for example, if the original assessment..........of glass bangles) worth rs. 5,722 which had not been disclosed by the assessee in the course of original assessment proceedings. on the basis of this information, proceedings were taken against the assessee under section 21 to reopen the assessment for the year 1960-61. the assessee admitted purchases worth rs. 967.50 only and denied the rest. this plea of the assessee was not accepted by the sales tax officer who estimated the escaped turnover of ornamented glass bangles at rs. 28,000 and added it to the turnover of inter-state sales as originally assessed. on appeal the assistant commissioner (judicial) upheld the action under section 21 but reduced the estimate of escaped turnover to rs. 13,000. both the assessee and the commissioner applied in revision. the assessee challenged the.....
Judgment:

R.L. Gulati, J.

1. This is a statement of the case under Section 11(1) of the U.P. Sales Tax Act which has been submitted by the Additional Judge (Revisions) Sales Tax, Agra.

2. The assessee deals in plain and ornamented glass bangles at Firozabad. In respect of the assessment year 1960-61, an assessment was made against the assessee under the Central Sales Tax Act on a turnover of Rs. 2,50,000. It was an assessment under Rule 41(5) of the U.P. Sales Tax Rules read with Section 9(3) of the Central Sales Tax Act and was a best judgment assessment because the assessee's account books were rejected as unreliable. Later on, as a result of a survey made of the business premises of the firm of M/s. Kunji Lal Har Dayal, it was found that the assessee had purchased from that firm hill (liquid gold used in ornamentation of glass bangles) worth Rs. 5,722 which had not been disclosed by the assessee in the course of original assessment proceedings. On the basis of this information, proceedings were taken against the assessee under Section 21 to reopen the assessment for the year 1960-61. The assessee admitted purchases worth Rs. 967.50 only and denied the rest. This plea of the assessee was not accepted by the Sales Tax Officer who estimated the escaped turnover of ornamented glass bangles at Rs. 28,000 and added it to the turnover of inter-State sales as originally assessed. On appeal the Assistant Commissioner (Judicial) upheld the action under Section 21 but reduced the estimate of escaped turnover to Rs. 13,000. Both the assessee and the Commissioner applied in revision. The assessee challenged the action under Section 21 as also the quantum of turnover. The Commissioner, on the other hand, contended that the appellate authority had reduced the quantum of turnover without any justification. The Judge (Revisions) rejected the assessee's revision but allowed that of the Commissioner in part, inasmuch as he enhanced the quantum of escaped turnover to Rs. 17,000. On an application by the assessee under Section 11(1) of the U.P. Sales Tax Act, the Judge (Revisions) has submitted the following questions of law for the opinion of this Court:

(1) Whether in the facts and circumstances of the case as found in revision, a presumption could be raised that the suppressed hill was used for making inter-State sales ?

(2) Whether from the estimate of turnover due to escaped hill worth Rs. 4,714 and odd, the extra turnover which had been included in the original assessment on best judgment principle was liable to be deducted ?

(3) Whether the notice issued under Section 21 of the U.P. Sales Tax Act was not legal in view of the omission to mention the escapement of turnover under inter-State sales or whether it was only a clerical mistake which had not prejudiced the applicant at all

3. With regard to question No. (1) the contention of the learned Counsel for the assessee is that although an inference could be drawn that the assessee had suppressed the turnover of ornamented glass bangles as a result of the suppression of some purchases of hill, yet such a turnover could not be presumed to be of inter-State sales and as such the same could not be subjected to Central sales tax. According to the learned Counsel, in order that a sale should be treated to be an inter-State sale, it must be shown that goods had moved from one State to another in pursuance of a contract of sale. The assessee submits that there is no material or finding in that regard and the assessment had been made merely on a presumption. It appears to us that this question really does not arise out of the revisional order passed under Section 10. There is no discussion of any such contention in the revisional order nor indeed was any such contention raised before the Sales Tax Officer or before the appellate authority. In fact the statement of the case submitted by the assessee along with the application under Section 11(1) also does not mention that any such contention was raised before the Judge (Revisions). It is settled that in a reference under Section 11, only such questions can be referred as arise out of the revisional order. A question which has not been raised before the Judge (Revisions) nor dealt with by him in the order disposing of the revision, cannot be said to arise out of the order of the Judge (Revisions) and as such cannot be referred under Section 11 : see Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd. [1961] 42 I.T.R. 589 (S.C.)

4. In its application under Section 11(1), the assessee sought reference on as many as six questions. Question No. (6) relates to this aspect of the matter and reads as below :

(6) Whether there was any material on record to treat the escaped turnover as inter-State sales liable to tax as defined under Section 3 of the Central Sales Tax Act

5. The Judge (Revisions) in his order under Section 11(1) has refused to refer that question on the ground that the same is a question of fact and not of law. In the circumstances, it is curious indeed to find that the Judge (Revisions) in the three questions referred by him, has included question No. (1) which in substance is the same as question No. (6). Once the Judge (Revisions) refused to refer a question he has no jurisdiction to include the same in the statement of the case drawn up by him. The only way in which such a question can be referred to the High Court is that the assessee makes an application under Section 11 (4) and the High Court directs the Judge (Revisions) to refer the question which he had originally declined to do. This admittedly had not been done. In the circumstances we decline to answer this question firstly because it does not arise out of the order of the Judge (Revisions) and secondly because the Judge (Revisions) had already declined to make a reference on that question.

6. At this stage, it is convenient to take up question No. (3) which seeks to challenge the validity of the notice under Section 21. The argument in short is that the notice under Section 21 does not indicate that it had been issued with a view to reopening the assessment under the Central Sales Tax Act, as it mentions at the top only Section 21 of the U.P. Sales Tax Act.

7. Now, it is not disputed that there is no separate provision under the Central Sales Tax Act for reopening an assessment and by virtue of Section 9(3) of the Central Sales Tax Act, the assessment of an escaped turnover of inter-State sales can only be made by issuing notice under Section 21 of the U.P. Sales Tax Act. The only defect pointed out in the notice is that it does not mention Section 9(3) of the Central Sales Tax Act. As had been pointed out by the Judge (Revisions) that omission is not material because it did not mislead or prejudice the assessee in any way. The case of the department is that the assessee does not effect any local sales of bangles. His entire turnover consists of inter-State sales. We are told that no assessment under the U.P. Sales Tax Act had ever been made against the assessee and he has all along been assessed under the Central Sales Tax Act. This plea of the department appears to be borne out from the assessee's application under Section 11(1). In paragraph 1 of the statement of facts (admitted and found) annexed by the assessee to its application under Section 11(1) it has been stated:

That the firm M/s. Footer Mal Megh Raj & Co. is a dealer in glass bangles who sells bangles after ornamentation in U.P. to ex U.P. dealers.' (underlining ours).

8. In the circumstances it cannot be said that the omission to mention Section 9(3) of the Central Sales Tax Act in the notice under Section 21 of the U.P. Sales Tax Act is an omission which vitiates the notice or the proceedings taken in pursuance thereof.

9. A similar question arose before this Court in Pawansut Bangle Stores v. Assistant Sales Tax Officer [1966] 18 S.T.C. 87. That was also a case of a dealer in bangles of Firozabad to whom notice under Section 21 had been issued in order to bring to tax escaped turnover of inter-State sales without mentioning in that notice Section 9(3) of the Central Sales Tax Act. It would be pertinent to reproduce the following observations of this Court at page 93 :

The last contention which remains to be considered is whether the notice is invalid. It is said that the notice does not on the face of it disclose that it has been issued in connection with the proposed assessment of sales tax due under the Central Sales Tax Act, and that the subsequent intimation by the Sales Tax Officer to the petitioner that it has been issued in connection with' such assessment cannot validate the notice. Whether a notice, such as this, is invalid will depend on whether it succeeds in the purpose for which it is issued. The notice is intended to inform the assessee of the proposed action by the assessing authority and also to inform him clearly as to what is required of him. If the assessee has no difficulty in understanding the purpose of the notice its validity cannot successfully be impugned.

10. Then towards the end of the judgment the court summed up its conclusion in the following words :

The notice, it is true, mentioned at the top that it was under Section 21 of the U.P. Sales Tax Act, but it cannot be forgotten that, it is because of Section 21 of that Act, the escaped turnover liable to be taxed under the Central Sales Tax Act can be got at.

11. This decision affords a complete answer to the question raised in the instant case. We accordingly answer question No. (3) by saying that the notice in question was a legal and proper notice. The answer is in favour of the department and against the assessee.

12. Now, we take up question No. (2). The question suggests that some turnover of ornamented glass bangles must have escaped assessment because the assessee did not disclose the purchases of liquid gold worth Rs. 4,714 which is utilised in the ornamentation of bangles. The question really is as to what should be the quantum of the escaped turnover. The assessee's contention is that the original assessment itself was a best judgment assessment inasmuch as an addition of Rs. 26,000 had been made to the disclosed turnover. The additional turnover of Rs. 26,000 taxed in the original assessment consisted of sales of plain and ornamented glass bangles and on the ratio between the two varieties of bangles a sum of Rs. 14,000 could be attributed to the turnover of ornamented glass bangles. This position is not denied. The assessee's contention now is that the amount of Rs. 14,000 should be deducted from the enhancement of Rs. 17,000 which has now been made by the Judge (Revisions), as otherwise it would lead to double taxation of a sum of Rs. 14,000. In other words, the assessee claims a set off of Rs. 14,000 against the addition of Rs. 17,000 now made under Section 21, At the outset we wish to state that whether or not an assessee is entitled to a set off of this nature, depends upon the facts and circumstances of each case. If in the original assessment, the enhancement is made in the turnover on account of any specific item of suppression, no set off can be allowed to the assessee, if the supplementary assessment is based upon a different item of suppression of turnover. Similarly, no such set off can be allowed of any addition made on best judgment assessment basis in the original assessment against a supplementary assessment under Section 21, if the latter is based upon a different source altogether. For example, if the original assessment pertains to the assessee's business in bangles and a best judgment assessment is made in respect thereof, it would be open to make a supplementary assessment under Section 21 if it is discovered that the assessee was carrying on some other business also which had not been considered in the original assessment. However, if the original assessment is a best judgment assessment in respect of a particular source, no second best judgment assessment is permissible under law under Section 21 on the ground that the original estimate was low. In other words, it is not possible for the department to substitute one best judgment assessment by another merely on the change of opinion and in the absence of any fresh definite material. However, if some definite material comes into the possession of the department, which warrants a higher addition to the disclosed turnover than the one originally made on best judgment basis, it is open for the department to do so. But in such a case, it is only just and proper that the addition already made in the original assessment must be deducted out of the addition which is proposed to be made under Section 21. That is not a rule of law but merely a rule of common sense.

13. Now in the instant case, an enhancement in the assessee's turnover of ornamented glass bangles was made in the original assessment of a sum of Rs. 14,000 not on the ground of any specific suppression discovered in the assessee's accounts but because of the fact that the assessee's account books were found to be unreliable generally. One of the grounds upon which the original assessment was made on best judgment basis was that 'hill register' maintained by the assessee was found to be defective. It follows, therefore, that the department did attribute the suppression of sales to the suppression of purchases as recorded in the hill register, but as it had no specific item before it, the department made an addition of Rs. 14,000 by way of an estimate. Afterwards the department came into possession of a specific item of purchase of hill amounting to a certain figure from which the suppressed turnover of ornamented bangles could be fixed at Rs. 17,000. Had this omission come to the notice of the department at the time of the original assessment the suppressed turnover of ornamented bangles would have been fixed at Rs. 17,000 and not at Rs. 14,000. That is plain logic. It follows, therefore, that in order to arrive at the true figure of escaped turnover under Section 21 the sum of Rs. 14,000 should be excluded from the figure of Rs. 17,000 which the department now thinks is the quantum of the suppressed turnover of ornamented bangles because the sum of Rs. 14,000 has already been included in the original assessment by way of estimate.

14. In Maddi Sudarsanam Oil Mills Co. v. Commissioner of Income-tax [1959] 37 I.T.R. 369 the Andhra Pradesh High Court while dealing with a somewhat similar question in the Income-tax Act, observed :

The assessee had recourse to the several entries of cash credits only for the purposes of balancing the accounts with a view to reducing the rate of gross profits. If once the income-tax authorities have rejected the books, they cannot have it both ways, namely, adopting a flat rate to compute gross profit as well as rely on the books for the purposes of adding unexplained cash credits which were part of the scheme of balancing the accounts.

15. A similar question under the Income tax Act came up for consideration before this Court in Commissioner of Income-tax, U.P. v. Babban Pandey [1970] 77 I.T.R. 601. In that case the assessee's account books had been rejected and an addition of Rs. 18,000 to the declared profit of the assessee was upheld by the Income-tax Appellate Tribunal. There was an unexplained cash credit of Rs. 6,531 in the assessee's books of account which was sought to be added by the department separately. The assessee claimed that the addition of Rs. 6,531 was not justified in view of the larger addition of Rs. 18,000 already made on estimate basis. This contention was accepted by the Income-tax Appellate Tribunal. The Commissioner sought a reference on the following question of law;

Whether, on the facts and circumstances of the case, the cash deposit of Rs. 6,531 can be said to come out and covered by the addition of Rs. 18,000 to the business profits of the assessee

16. This court by a majority answered the question in the affirmative. We accordingly answer question No. (2) in the affirmative in favour of the assessee and against the department.

17. In the circumstances, we make no order as to costs. The counsel's fee is assessed at Rs. 100.


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