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Purushottam Vs. Commissioner of Sales Tax and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 131 of 1959
Judge
Reported in[1959]10STC574(MP)
AppellantPurushottam
RespondentCommissioner of Sales Tax and ors.
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateM. Adhikari, Adv.
Excerpt:
.....to the second ground appear to be well-founded. even apart from this, section 11a of the act specifically provides for assessment of the tax payable if, in consequence of any information, the commissioner is satisfied that the turnover of a dealer during any period escaped assessment......the central provinces sales tax act, 1947 (hereinafter referred to as the act) by the sales tax officer, chhindwara (respondent 2.)2. the facts of the case, briefly stated, are these. the petitioner is a dealer registered under the act and resides at pandhurna in the chhindwara district. the commissioner of sales tax (respondent 1) administers the act with the help of several assistants including the sales tax officer, chhindwara (respondent 2).3. the sales tax officer, chhindwara, assessed the amount of sales tax due from the petitioner for the periods 22nd october, 1949, to 9th november, 1950, and 10th november, 1950, to 30th october, 1951, on 30th september, 1953, and 4th november, 1953, respectively. thereafter, on 5th june, 1954, he seized the petitioner's account books for.....
Judgment:
ORDER

K.L. Pandey, J.

1. This petition under Articles 226 and 227 of the Constitution is directed against certain reassessment proceedings started under the Central Provinces Sales Tax Act, 1947 (hereinafter referred to as the Act) by the Sales Tax Officer, Chhindwara (respondent 2.)

2. The facts of the case, briefly stated, are these. The petitioner is a dealer registered under the Act and resides at Pandhurna in the Chhindwara district. The Commissioner of Sales Tax (respondent 1) administers the Act with the help of several assistants including the Sales Tax Officer, Chhindwara (respondent 2).

3. The Sales Tax Officer, Chhindwara, assessed the amount of sales tax due from the petitioner for the periods 22nd October, 1949, to 9th November, 1950, and 10th November, 1950, to 30th October, 1951, on 30th September, 1953, and 4th November, 1953, respectively. Thereafter, on 5th June, 1954, he seized the petitioner's account books for sambat years 2007 and 2008. On 8th and 9th January, 1957, he seized the account books of the petitioner for the sambat year 2009 and also those for the years 1953-54 to 1956-57.

4. By two orders, each dated 15th December, 1954, the Commissioner of Sales Tax revised the assessment orders of the Sales Tax Officer, Chhindwara, dated 30th September, 1953, and 4th November, 1953, and remitted the two cases to the latter for fresh assessment.

5. The Sales Tax Officer, Chhindwara, started reassessment proceedings. On 20th August, 1957, he assessed the petitioner's turnover for the year 1949-50 and transferred the cases for the years 1950-51 to 1955-56 to the Assistant Commissioner, Sales Tax, Jabalpur. Also, the Sales Tax Officer, Chhindwara, recorded statements of witnesses behind the back of the petitioner without giving him an opportunity to cross-examine them. Even the petitioner's requests for certified copies of those statements were turned down. Finally, the Sales Tax Officer, Chhindwara, has continued to keep in his custody all the account books seized by him, and has not returned them to the petitioner despite several applications made for the purpose.

6. The petitioner challenged the proceedings before the Sales Tax Officer, Chhindwara, on the following grounds. Since, under Rule 67 of the Rules made under the Act, the Sales Tax Officer, Chhindwara, could not deal with any case involving a taxable turnover in excess of Rs. 2,00,000 and the taxable turnover of the petitioner exceeded in 1953 Rs. 3,00,000 he could not deal with the petitioner's casts and all the proceedings taken by him in relation thereto were without jurisdiction. The reassessment proceedings were also against the principles of natural justice in that witnesses were examined behind the back 'of the petitioner without giving him an opportunity to cross-examine them and even certified copies of statements of those witnesses were not made available to him. Further, apart from want of inherent jurisdiction, the Sales Tax Officer, Chhindwara, was not empowered to seize account books and the action taken by him in the matter was illegal, besides being in contravention of Rule 51 framed under the Act. Finally, the order for reassessment for the year 1949-50, purporting to have been passed under Sections 11-A and 22-C of the Act, was without jurisdiction and illegal because it was passed in a proceeding started on the issue of a notice more than three years after the period of assessment ending on 9th November, 1950.

7. The respondents contested all the grounds on which the petition is founded. The petitioner's counsel, however, restricted his submissions to only two grounds. One of these is that the Sales Tax Officer, Chhindwara, was not authorised to seize the account books of the petitioner. The other is that any turnover which had escaped assessment could not be reassessed under Section 11A of the Act beyond the period prescribed by that section.

8. The first ground is clearly untenable because, by a written order No. ST-I-269 dated 15th February, 1954, the Sales Tax Commissioner, in exercise of his powers under Section 16 of the Act, delegated all his power under Sub-section (3) of Section 15 of the Act to 'all officers of and above the rank of Inspector of Sales Tax (but Inspector of Sales Tax with the written permission of the Sales Tax Officer).' In view of the order, the Sales Tax Officer, Chhindwara, was authorised to seize the account books of the petitioner in exercise of the delegated powers under Sub-section (3) of Section 15 of the Act.

9. The submissions in regard to the second ground appear to be well-founded. In the instant case, the Commissioner passed the two orders dated 15th December, 1954, because it was discovered in other enquiries that the petitioner had not disclosed in his return certain sales made by him. Sub-section (1) of Section 22-B of the Act gives to the Commissioner the power to call for and examine the record of any proceeding under the Act and, if he considers that any order passed therein is erroneous in so far as it is prejudicial to the revenue, he may revise it. It would appear that, under this section, the Commissioner is empowered to act if, after examining the record of any proceeding, he considers any order passed therein to be erroneous as being prejudicial to the revenue. The words used in the section do not postulate exercise of any power to revise an order of assessment on the basis of any information obtained aliunde and not contained in the record examined by the Commissioner. Even apart from this, Section 11A of the Act specifically provides for assessment of the tax payable if, in consequence of any information, the Commissioner is satisfied that the turnover of a dealer during any period escaped assessment. In view of this special provision, any turnover which has escaped assessment must be dealt with as provided there. The power of revision under Section 22B of the Act cannot be exercised to tax a turnover, which has escaped assessment, especially when the period of limitation prescribed under Section 11A ibid, namely, three calendar years from the expiry of such period, has already lapsed. It is true that the essential difference between Section 11A and Section 22B is that, while under the former only the turnover escaping assessment is taxed leaving the finality of the original order of assessment unimpaired, an exercise of powers under the latter affects the finality of the original order which is displaced by the order passed in revision. Even so, the powers of revision under Section 22B cannot be invoked to deal with a turnover escaping assessment which falls substantially within the ambit of Section 11 A.

10. That the Commissioner exercised his power of revision under Section 22B of the Act to direct the taxing of sales which had escaped assessment will be clear from one of his two similar orders which is reproduced below : -

The above-noted dealer was called upon under the provisions of Section 22B to show cause why the assessment order dated 4th November, 1953, for the assessment period 22nd October, 1949, to 9th November, 1950, should not be set aside and a fresh assessment directed. The facts, which led to the issue of this notice, are that in connection with certain enquiries in the case of Jayantilal Nandlal of Pandhurna it was discovered that the dealer sold goods worth Rs. 2,260-15-0 to Jayantilal Nandlal of Pandhura, which were not included in the returns submitted by the dealer and assessment made on him for the above-noted period. The sales tax practitioner, who has appeared before me with the dealer, contends that the sales in question were duly shown in the return and are included in his accounts. He pleads that his accounts have been seized by the Sales Tax Officer, Chhindwara, and, therefore, it is not possible for him to establish this fact. He has, however, no objection to the assessment being set aside and a fresh assessment being made after examining his books and returns for the above-noted period. All that he wants is that he should have an opportunity to establish that the sales in question were duly included and that no other sales were omitted from his books. In view of what has been stated by the sales tax practitioner appearing for the dealer, the assessment order dated 4th November, 1953, is set aside and the case is sent back to the Sales Tax Officer having jurisdiction over it for a fresh assessment according to law after giving the dealer an opportunity to establish that the sales in question were duly included in his return and books and that no other sales were omitted.

11. It is also obvious that one of the Commissioner's orders dated 15th December, 1954, was passed after the expiry of three calendar years from the relevant period, namely 22nd October, 1949, to 9th November, 1950.

12. The two orders of the Commissioner dated 15th December, 1954, are illegal and so are the proceedings for fresh assessment initiated in pursuance of those orders. Accordingly, the Commissioner's two revisional orders dated 15th December, 1954, the proceedings for fresh assessment started on the basis thereof and the fresh assessment order dated 20th August, 1957, passed by the Sales Tax Officer, Chhindwara, are quashed. This will not, however, affect the validity of the proceedings under Section 11B of the Act, if any, already taken to tax the turnovers for the periods 22nd October, 1949, to 9th November, 1950, and 10th November, 1950, to 30th October, 1951, which escaped assessment.

13. Since the petitioner has succeeded in part, there will be no order about costs. The outstanding amount of security shall be refunded to the petitioner.


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