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Commissioner, Sales Tax Vs. Mittal Radios - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Reference No. 322 of 1972
Judge
Reported in[1975]36STC29(All)
AppellantCommissioner, Sales Tax
RespondentMittal Radios
Appellant Advocate Standing Counsel
Respondent Advocate Bhartji Agarwal, Adv.
Excerpt:
- - 4734 of 1963 decided on 4th february, 1964 (allahabad high court), held that in view of the fact that both the assistant sales tax officer as well as the sales tax officer had concurrent jurisdiction over this assessee, it was incumbent upon them to decide at the very threshold which one of them would initiate proceedings, that once the assistant sales tax officer had exercised his jurisdiction by starting penalty proceedings for the year in question, he exercised jurisdiction in the case, and, therefore, the sales tax officer did not have jurisdiction......that the cheque bounced back from the bank dishonoured. thereupon, on 26th september, 1967, the assistant sales tax officer issued notice under section 15a of the u. p. sales tax act proposing to impose penalty upon the assessee for not having paid the admitted tax along with the return and requiring him to show cause. thereafter the assessee deposited the requisite amount and informed the assistant sales tax officer that he had done so. on 11th november, 1967, the assistant sales tax officer passed an order :prosecution and penalty notices were issued because cheque for rs. 334.12 was dishonoured, but since the amount has been deposited, no action is required.3. with this order the penalty proceedings concluded.4. the regular assessment proceedings were initiated and conducted by the.....
Judgment:

Satish Chandra, J.

1. The Revising Authority, Meerut, has referred the following question of law for the opinion of this Court :

Whether, on the facts and in the circumstances of the case, the Sales Tax Officer had jurisdiction to assess the assessee ?

2. On 29th April, 1967, the assessee filed his return for the fourth quarter of the assessment year 1966-67. Along with the return he tendered a cheque for Rs. 334.12, which represented the admitted amount of tax. It appears that the cheque bounced back from the bank dishonoured. Thereupon, on 26th September, 1967, the Assistant Sales Tax Officer issued notice under Section 15A of the U. P. Sales Tax Act proposing to impose penalty upon the assessee for not having paid the admitted tax along with the return and requiring him to show cause. Thereafter the assessee deposited the requisite amount and informed the Assistant Sales Tax Officer that he had done so. On 11th November, 1967, the Assistant Sales Tax Officer passed an order :

Prosecution and penalty notices were issued because cheque for Rs. 334.12 was dishonoured, but since the amount has been deposited, no action is required.

3. With this order the penalty proceedings concluded.

4. The regular assessment proceedings were initiated and conducted by the Sales Tax Officer, who, in due course, passed the assessment order on 28th February, 1969.. Aggrieved, the assessee went up in appeal.

5. At the appellate stage, the assessee took the objection that, in the circumstances of the case, the Sales Tax Officer had no jurisdiction to pass the assessment order and that the Assistant Sales Tax Officer alone could do so. This plea was repelled. The assessee then went up in revision.

6. The revising authority, relying upon a decision of this court in Madan Mohan Dhamma Mal v. Commissioner of Sales Tax Civil Misc. Writ No. 4734 of 1963 decided on 4th February, 1964 (Allahabad High Court), held that in view of the fact that both the Assistant Sales Tax Officer as well as the Sales Tax Officer had concurrent jurisdiction over this assessee, it was incumbent upon them to decide at the very threshold which one of them would initiate proceedings, that once the Assistant Sales Tax Officer had exercised his jurisdiction by starting penalty proceedings for the year in question, he exercised jurisdiction in the case, and, therefore, the Sales Tax Officer did not have jurisdiction. In this view, the revision was allowed and the assessment order was quashed.

7. At the instance of the Commissioner, Sales Tax, the question of law mentioned above has been referred for the opinion of this court.

8. It is not disputed that in view of the prevailing orders of the superior authorities both the Assistant Sales Tax Officer and the Sales Tax Officer had pecuniary jurisdiction up to Rs. 80,000. It is also not disputed that the Commissioner, Sales Tax, had not assigned the work of this circle between the Assistant Sales Tax Officer and the Sales Tax Officer, with the result that in so far as the present assessee is concerned, both the officers had jurisdiction to assess him. In Madan Mohan Dhamma Mal's case Civil Misc. Writ No. 4734 of 1963 decided on 4th February, 1964 (Allahabad. High Court), the position was that one of the two officers who had concurrent jurisdiction initiated regular assessment proceedings. He examined the books of account and made a proposal for refund, but thereafter he shifted the file to the other officer. It was held that if more than one officer had concurrent jurisdiction, then the least that can be expected was that they will make up their mind at the very inception as to which of them is to exercise jurisdiction in the case of a particular assessee. If they do so at the very inception and one of them is rightly or wrongly seized of the case and has examined the books of account and has made his proposal for refund, he cannot thereafter abdicate his jurisdiction and transfer the case to another officer.

9. This decision does not dispute the legal position that since both the officers had concurrent jurisdiction, they both could initiate and conclude the assessment proceedings. The only principle laid down there is that, in such a situation, if one of the two officers initiates the proceedings, then he should conclude them, unless a superior authority passes an order of transfer. That officer himself has no power to abdicate his jurisdiction and shift it on to the other.

10. In the present case, the proceedings for imposing the penalty were initiated by the Assistant Sales Tax Officer. Admittedly, those proceedings came to an end on 11th November, 1967, when he dropped those proceedings because the assessee had paid the requisite amount. Thereafter it could not be said that any penalty proceedings were pending. This is not a case where the Assistant Sales Tax Officer has, after having initiated assessment proceedings, abdicated his function and transferred the case to another officer.

11. Even though it may be assumed that the regular assessment proceedings commenced when the return was filed, yet it is not the case of any party that the Assistant Sales Tax Officer had done anything to initiate the regular proceedings for the assessment year 1966-67. Simply because the Assistant Sales Tax Officer had initiated penalty proceedings with regard to a default committed in relation to this year, it cannot be said that he had at the same time initiated regular assessment proceedings for the year. The proceedings for the imposition of penalty of the kind initiated in this case were independent in their object, subject-matter and consequence. They had no direct relation with the regular assessment proceedings.

12. In this view of the matter, since both the officers had jurisdiction, either of them could have validly initiated the regular assessment proceedings. According to Madan Mohan Dhamma Mal's case Civil Misc. Writ No. 4734 of 1963 decided on 4th February, 1964 (Allahabad High Court), the two officers had to decide which one of them will take cognizance of the case. So even though the regular assessment proceedings may be said to have been initiated when the return was filed, yet the cognizance of the case could be said to be taken by one or the other officer only when the concerned officer took up the case and did something in it. Nothing was done by the Assistant Sales Tax Officer at any stage in regard to the regular assessment of the assessee. In our opinion, the principle laid down in Madan Mohan's case was not, on the facts of the present case, attracted. The Sales Tax Officer validly exercised jurisdiction in making the assessment order.

13. For the assessee reliance was placed upon a decision of the Supreme Court in Commissioner of Sales Tax, U.P. v. Sarjoo Prasad Ram Kumar Civil Appeal No. 2114 of 1969 decided on 4th October 1972. That case is not applicable to the present case. In that case, the Commissioner, Sales Tax, had assigned the jurisdiction of the various Assistant Sales Tax Officers sector-wise. The Supreme Court held that, in view of the classification of work, the Assistant Sales Tax Officer assigned to one sector could not touch or deal with the cases arising in another sector. In the present case, there has been no assignment of work between the Assistant Sales Tax Officer and the Sales Tax Officer, either territory-wise or according to their pecuniary jurisdiction.

14. In the result, we answer the question referred to us in the affirmative, in favour of the department and against the assessee. The Commissioner will be entitled to costs, which are assessed at Rs. 100.


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