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Orissa Hides Trading Company Vs. Sales Tax Officer - Court Judgment

LegalCrystal Citation
SubjectCivil;Sales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 14 of 1963
Judge
Reported in1963MPLJ208; [1964]15STC36(MP)
AppellantOrissa Hides Trading Company
RespondentSales Tax Officer
Cases ReferredCarl Still G.m.b.H. v. State of Bihar
Excerpt:
.....presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - general sales tax rules, 1959, for the petitioner's alleged failure to apply for registration rendering itself liable to the best judgment assessment and penalty. its objection was that the period from 1st july, 1955, to 5th march, 1959, in respect of which it was said to have failed to apply for registration, fell under the repealed act, namely, the central provinces and berar sales tax act, 1947, and that action, if any, should have been taken against the petitioner-company under section 11(5) of that act within three calendar years from the expiry of the period spoken of in that section;.....to the best judgment assessment and penalty. the alternative prayer of the petitioner is that the sales tax officer, raipur, be directed to decide its preliminary objection that the proceedings initiated against it under section 18(6) of the act are barred by time.2. after receiving the notice, the petitioner submitted on 25th may, 1962, to the sales tax officer, raipur, his objections in writing to the assessment proceedings. its objection was that the period from 1st july, 1955, to 5th march, 1959, in respect of which it was said to have failed to apply for registration, fell under the repealed act, namely, the central provinces and berar sales tax act, 1947, and that action, if any, should have been taken against the petitioner-company under section 11(5) of that act within three.....
Judgment:
ORDER

1. This is an application under Articles 226 and 227 of the Constitution for the issue of a writ of certiorari for quashing a notice issued to the petitioner Under Section 18(6) of the M.P. General Sales Tax Act, 1958 (hereinafter referred to as the Act) in Form No. XVI prescribed by the M. P. General Sales Tax Rules, 1959, for the petitioner's alleged failure to apply for registration rendering itself liable to the best judgment assessment and penalty. The alternative prayer of the petitioner is that the Sales Tax Officer, Raipur, be directed to decide its preliminary objection that the proceedings initiated against it Under Section 18(6) of the Act are barred by time.

2. After receiving the notice, the petitioner submitted on 25th May, 1962, to the Sales Tax Officer, Raipur, his objections in writing to the assessment proceedings. Its objection was that the period from 1st July, 1955, to 5th March, 1959, in respect of which it was said to have failed to apply for registration, fell under the repealed Act, namely, the Central Provinces and Berar Sales Tax Act, 1947, and that action, if any, should have been taken against the petitioner-company Under Section 11(5) of that Act within three calendar years from the expiry of the period spoken of in that Section; that this was not done and the notice Under Section 18(6) of the new Act which was served on the company on 11th March, 1962, was more than three years after the expiry of the said period; and that in view of Section 52 of the Act the Sales Tax Officer was not justified in law in initiating proceedings Under Section 18(6) of the Act. On 13th December, 1962, the Sales Tax Officer passed an order in these terms---

The pleader for the dealer present. He was cleared the point that the case is not barred by limitation.

3. In the return filed on behalf of the opponent, it has been averred that prior to the issue of the notice which was served on the petitioner on 11th March, 1962, a notice was in fact issued to the petitioner on 2nd March, 1962; that in response to that notice the petitioner appeared before the Assistant Sales Tax Officer and stated that his turnover exceeded more than Rs. 8 lakhs and consequently the assessment case was submitted to the Sales Tax Officer for disposal according to the order of the Sales Tax Commissioner Under Section 30 of the Act with regard to the delegation of his powers and duties ; and that, therefore, the assessment proceedings even for the purpose of Section 11(5) were commenced within time. It has been further stated in the return that on the true construction of Section 52 of the Act while the rights and liabilities acquired and incurred under the repealed Act are preserved, the machinery provisions of the new Act are applicable to the enforcement of those rights and liabilities; that Under Section 18(6) limitation for commencement of proceedings is six years from the date of the expiry of the whole of the period spoken of in that provision ; and that the notice issued to the petitioner was, therefore, valid. The respondent has also said that even if Section 11(5) of the repealed Act applied to the present case then the period of three calendar years computed from 5th March, 1959, expired on 31st December, 1962; and that, therefore, the notice served on the petitioner on 11th March, 1962, was within limitation.

4. In our opinion, it is not necessary to enter into the merits of the contentions advanced on behalf of the parties. The reason is that the Sales Tax Officer cannot be said to have decided the petitioner's preliminary objection as to the notice served on it or the proceedings taken against it being barred by limitation by the order which he passed on 13th December, 1962. When the petitioner objected to the proceedings on the ground that they were barred by limitation, it was incumbent on the Sales Tax Officer to decide the objection judicially and record a proper order embodying his decision and reasons therefor. Instead of doing this, the Sales Tax Officer merely passed an order stating that it was explained to the petitioner that his case was not barred by limitation. Such an order cannot in any sense be regarded as an order containing a judicial decision of the Sales Tax Officer on the objection raised by the petitioner. The order at the most indicated that the Sales Tax Officer was inclined to hold that the proceedings commenced against the applicant were within time. But the statement of a mere inclination on the part of the Sales Tax Officer is not sufficient for the disposal of any preliminary objection such as the one raised by the assessee in the present case. The Sales Tax Officer must, therefore, be directed to give a proper consideration to the petitioner's objection and to record his adjudication thereon in a. proper manner. If there had been a proper legal order of the Sales Tax Officer overruling the petitioner's objection, then we would have considered the contentions put forward before us giving our decision thereon and further considered the question whether we could or could not disturb the order of the Sales Tax Officer keeping in view the pronouncement of the Supreme Court in Carl Still G.m.b.H. v. State of Bihar([1961] 12 S.T.C. 449). But as we do not regard the statement of the Sales Tax Officer that clarification was given to the assessee that proceedings had been initiated within time as any order deciding his objection, it would not be proper for us to consider the merits of the objection. We must, however, deprecate the tendency, which we have been of late noticing on the part of Sales Tax Authorities, in the shape of postponing the decision of a preliminary objection or objections raised by the assessee till the conclusion of the assessment itself or deciding them at the outset in a slipshod manner such as the one noticed in the present case.

5. For these reasons, the Sales Tax Officer is directed to decide judicially and in a proper manner the objections raised by the petitioner in his application filed on 25th May, 1962. In the circumstances of the case, we leave the parties to bear their own costs. The outstanding amount of security deposit shall be refunded to the petitioner.


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