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Epari Chinnakrishna Murty Vs. Sales Tax Officer - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 394 of 1955
Judge
Reported in23(1957)CLT423; [1957]8STC862(Orissa)
AppellantEpari Chinnakrishna Murty
RespondentSales Tax Officer
Appellant AdvocateK.V. Subramanyam, ;N.V. Ramadas ;and G.N. Murty, Advs.
Respondent AdvocateG.K. Misra, Adv.
Cases ReferredBengal v. Mahaliram Ramjidas
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........of the government of orissa (no. 8727-c.t. 66/49 f, dated 1st july, 1949), wherein the sales of gold ornaments by a manufacturer, who charged separately for the value of gold and the cost of manufacture, are exempted from sales tax. on an enquiry made by the department, after issue of proper notices under the act, the assessments for the quarters ending on 3oth september, 1952, to the quarter ending on 31st march, 1954, were closed and the petitioner obtained exemption from sales tax on his sales of gold ornaments on the basis of the above notification. in spite of the above position, however, the sales tax officer, intelligence circle, cuttack, had issued a notice to the petitioner on 28th september, 1955, under section 16(1) of the act to produce the accounts and returns for the.....
Judgment:

Mohapatra, J.

1. This is a petition under Articles 226 and 227 of the Constitution of India with a prayer for the issue of order or writ in the nature of certiorari or other appropriate writ and for quashing the proceedings under Section 12(7) of the Orissa Sales Tax Act, 1947. The petitioner, in his petition, states that he is a merchant carrying on business in bullion and gold and silver ornaments at Berhampur ; he has got himself registered as a dealer under the Orissa Sales Tax Act; and he is a member of the Berhampur Bullion Merchants Association. He relies upon a notification of the Government of Orissa (No. 8727-C.T. 66/49 F, dated 1st July, 1949), wherein the sales of gold ornaments by a manufacturer, who charged separately for the value of gold and the cost of manufacture, are exempted from sales tax. On an enquiry made by the Department, after issue of proper notices under the Act, the assessments for the quarters ending on 3oth September, 1952, to the quarter ending on 31st March, 1954, were closed and the petitioner obtained exemption from sales tax on his sales of gold ornaments on the basis of the above Notification. In spite of the above position, however, the Sales Tax Officer, Intelligence Circle, Cuttack, had issued a notice to the petitioner on 28th September, 1955, under Section 16(1) of the Act to produce the accounts and returns for the past quarters from 31st March, 1952, onwards before him on 12th March, 1955, at Berhampur. Thereafter notice under Section 12(7) of the Act for reopening the assessment was also issued on the petitioner calling upon him to produce his returns for the quarters ending on 30th September, 1952, to 31st March, 1954. Thereafter the petitioner sent a memorial to the Finance Minister, Government of Orissa, and made an application before the Collector of Commercial Taxes, Orissa, for stay of further proceedings awaiting decision of the Government. The Collector, Commercial Taxes, Orissa, however, on I7th December, 1955, issued notice that these proceedings cannot be stayed and the Sales Tax Officer, Berhampur, having rejected the application for further time and having called upon the petitioner to submit the returns and accounts on 21st and 23rd December, 1955, the petitioner has presented this petition under Articles 226 and 227 of the Constitution asserting that he is a manufacturer of gold ornaments and he having complied with the requirements of the Notification dated 1st July, 1949, had been rightly exempted from paying sales tax on the sales of gold ornaments.

2. A counter has been filed on behalf of the Sales Tax Officer, Ganjam Circle I, to the effect that the petitioner is not a manufacturer of gold ornaments and further that he is not showing the value of gold and the cost of manufacture separately ; it is further stated there that it appears that the orders of the previous assessing officers exempting the petitioner from tax on sales of gold ornaments are erroneous for which the notice had been issued for reopening the assessment under Section 12(7) of the Act. It is further asserted on behalf of the opposite party that preliminary enquiries conducted go to show that the petitioner is not a manufacturer of gold ornaments and that what he charges separately for the so-called cost of manufacture is not his actual cost of making the gold ornaments.

3. Mr. Venkata Subramanyam, a leading Advocate of Madras, who appeared before us on behalf of the petitioner, does not contest the position that the proceedings under Section 12(7) of the Act are without jurisdiction, or that the Sales Tax Officer had no power to issue such a notice to reopen the assessment. Section 12(7) of the Act runs thus :

If for any reason the turnover of a dealer for any period...or has been under-assessed, the Collector may at any time within thirty-six months of the end of that period call for a return under Sub-section (1) of Section 11 and may proceed to assess the amount of tax due from the dealer in the manner laid down in Sub-section (5) of this section and may also direct, in cases where such escapement of under-assessment is due to the dealer having concealed particulars of his turnover or having without sufficient causes has furnished incorrect particulars thereof, that the dealer shall pay, by way of penalty, in addition to the tax assessed under this sub-section, a sum not exceeding one and a half times of the said tax so assessed.

4. The powers of the Collector under these provisions seem to be very wide. Moreover, as we have placed the allegations made in the petition and in the counter, there appear controversies regarding questions of fact. There are no full and complete materials before us as to what exactly was the function of the petitioner so as to call him a manufacturer. Further it is asserted in the counter that the preliminary enquiries conducted go to show that the petitioner is a manufacturer of gold ornaments and that what he charges separately as his so-called cost of manufacture is not his actual cost of making the gold ornaments. We have observed above, the powers under Sub-section (7) of Section 12 are very wide. The fact remains that the petitioner has not produced his accounts for the examination of the departmental authorities. We are not sure whether there has been any escapement or under-assessment due to the dealer having concealed particulars of his turnover. This would be clarified only when the Sales Tax Officer has the advantage of a full and close examination of the accounts himself.

5. There may be any other reasons on account of which the reopening of the previous assessment may be justified. The reason may transpire only after close scrutiny of the accounts afresh. Following the dictum laid down by their Lordships of the Privy Council in the case of Commissioner of Income-tax, Bengal v. Mahaliram Ramjidas [1940] 8 I.T.R. 442 : A.I.R. 1940 P.C. 124, which was in a case arising under the provisions of escapement under the Income-tax Act, we are of the view that the Taxing Officer is not required by this section to convene the assessee or to intimate to him the nature of the alleged escapement.

6. We therefore feel convinced that the petition before us at this stage is too premature, and without discussing the matter any further we dismiss the petition with costs. Hearing fee is assessed at Rs. 100 (Rupees one hundred). This order will govern O.J.C. Nos. 395, 396, 397. 398 and 399 of 1955 and 440 of 1956, which involve the same questions. They are accordingly dismissed, but there will be no order as to costs,

Narasimham, C.J.

7. I agree.


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