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Arjan Radio House Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petition No. 3719 of 1977
Judge
Reported in[1978]41STC360(P& H)
AppellantArjan Radio House
RespondentThe State of Punjab and ors.
Appellant Advocate D.S. Nehra and; Arun Nehra, Advs.
Respondent Advocate I.S. Tiwana, Additional Adv.-General
DispositionPetition allowed
Cases Referred(Arjan Radio House v. Assessing Authority
Excerpt:
.....the department itself tried to serve these dealers and when they were not found on these addresses, dasti summonses were given to the petitioner-firm so as to enable it to produce them before the assessing authority and since it failed to do so the orders of reassessment were passed against it......and 1969-70 on 28th april, 1970 and 7th october, 1970, respectively. the orders were passed by the assessing authority after examination of the accounts and verification of the returns and documents.2. in the year 1970-71, notices were sent to the petitioner-firm in form s. t. xix by respondent no. 4 for the assessment years 1967-68, 1968-69 and 1969-70 for starting reassessment proceedings under section 11a of the act. in the notices it was stated as under :sales to the following unregistered dealers have been made and deductions as sales made to r. ds. were claimed and allowed :-1. b. s. arora, amritsar.2. bhajan lal & bros., amritsar.3. jamna dass boa dass, amritsar.4. dharam paul sharma, amritsar.5. munshi lal & co., amritsar.6. prem singh vasdev, amritsar.3. on 2nd december, 1971,.....
Judgment:

M.R. Sharma, J.

1. The petitioner-firm is a registered dealer under the Punjab General Sales Tax Act, 1948 (hereinafter called the Act). The assessment of the firm was completed for the year 1967-68 on 27th October, 1969 and for the years 1968-69 and 1969-70 on 28th April, 1970 and 7th October, 1970, respectively. The orders were passed by the Assessing Authority after examination of the accounts and verification of the returns and documents.

2. In the year 1970-71, notices were sent to the petitioner-firm in form S. T. XIX by respondent No. 4 for the assessment years 1967-68, 1968-69 and 1969-70 for starting reassessment proceedings under Section 11A of the Act. In the notices it was stated as under :

Sales to the following unregistered dealers have been made and deductions as sales made to R. Ds. were claimed and allowed :-

1. B. S. Arora, Amritsar.

2. Bhajan Lal & Bros., Amritsar.

3. Jamna Dass Boa Dass, Amritsar.

4. Dharam Paul Sharma, Amritsar.

5. Munshi Lal & Co., Amritsar.

6. Prem Singh Vasdev, Amritsar.

3. On 2nd December, 1971, the Assessing Authority passed an order under Section 11A of the Act reassessing the petitioner-firm and creating an additional liability for the year 1967-68 on the ground that the registration certificates of the firms mentioned in the preceding paragraph had been cancelled prior to the dates on which the sales were purported to have been made in their favour. The petitioner-firm challenged this order by filing Civil Writ Petition No. 541 of 1972 (Arjan Radio House v. Assessing Authority [1973] 31 S.T.C. 49), which came up for hearing before me in Chambers and was allowed on 6th October, 1972. In that case, I held that when the registration certificate of a dealer was cancelled, the particulars regarding the cancellation order had to be notified in the official Gazette as soon as possible as laid down under Rule 12(2) of the Rules framed under the Act and failure to comply with this requirement could not entail penal consequences upon the selling dealer.

4. The other point raised on behalf of the petitioner-firm that an assessment made could not be reopened on the ground that the C forms had not been signed by the other dealers by whom they purported to have been signed was negatived by me on the ground that the information entitling the Assessing Authority to frame reassessment included information on points of law as also on points of fact. Pursuant to the aforementioned order passed by me, the matter relating to the year 1967-68 was again taken up by the Assessing Authority and an order of reassessment was passed on 21st April, 1973.

5. The petitioner-firm then challenged the order of reassessment passed against it by filing Civil Writ Petition No. 2463 of 1973, which came up for hearing before my learned brother R. N. Mittal, J., on 13th December, 1974. The learned Judge ordered that since the order passed by me in the earlier writ petition had not been complied with and the principles of natural justice were violated, the order passed deserved to be cancelled. He ordered accordingly and directed the Assessing Authority to give the petitioner-firm full opportunity of producing evidence before it. Against that order passed by R. N. Mittal, J., the State filed L.P.A. No. 80 of 1975, which is still pending in this court.

6. During the pendency of the Writ Petition No. 2463 of 1973, the Assessing Authority issued fresh notices for initiating reassessment proceedings for the years 1968-69 and 1969-70. The grounds urged in the notices were that, since no sales had been made in favour of the aforementioned six dealers, it was open to the Assessing Authority to initiate reassessment proceedings. The petitioner-firm approached the Assessing Authority for furnishing it with copies of the affidavits filed by the aforementioned dealers in which, according to the department, it had been stated that those six dealers had made no purchases from the petitioner-firm. The Assessing Authority declined this request and reopened the two assessments ignoring the sales made to the aforementioned six dealers and created additional liability against the petitioner-firm in respect of the two assessment years. The appeals filed by the petitioner-firm against these assessment orders were dismissed and the second appeal filed before the learned Sales Tax Tribunal, Punjab, was also disposed of by a composite order.

7. The petitioner-firm has challenged this order and the orders passed by the subordinate authorities on the ground that the same had been passed in violation of the principles of natural justice. In the return filed on behalf of the respondents, it has been stated that the request of the petitioner-firm for supply of copies of the affidavits was declined under Section 26 of the Act and the petitioner-firm was allowed full opportunity of producing the aforementioned dealers for proving that it had in fact made the impugned sales in their favour. The last-mentioned point is further amplified by stating that the department itself tried to serve these dealers and when they were not found on these addresses, dasti summonses were given to the petitioner-firm so as to enable it to produce them before the Assessing Authority and since it failed to do so the orders of reassessment were passed against it.

8. The allegation made on behalf of the petitioner-firm that the earlier assessment had been framed by the Assessing Authority after examination of the accounts and verification of the returns and documents has not been denied in the written statement. The Assessing Authority initiated reassessment proceedings on the basis of the affidavits filed by the aforementioned six firms in which it had been said that none of them had made any purchases from the petitioner-firm. The petitioner-firm wanted to contest the statements made by these six dealers in their respective weapons. The copies of these affidavits could not have been denied to the petitioner-firm on the basis of Section 26 of the Act. That section is meant entirely for a different purpose and gives a sort of immunity to a dealer that third parties may not start probing into its affairs on the basis of returns filed by it. When the authorities under the Act themselves wish to take any action against a dealer, he is as a matter of law entitled to receive copies of the documents on the basis of which action is sought to be initiated against it. Since the petitioner-firm was not allowed an opportunity of proving its case on account of the fact that the documents, the copies of which it was entitled to receive, were withheld from it, we hold that the order of reassessment framed is illegal in the eyes of law.

9. We may also add that in reassessment proceedings, if such proceedings are initiated on the basis of the statements made by such persons, it is the duty of the department to produce such persons before the Assessing Authority to enable the assessee to cross-examine them. If the department itself cannot effect service, it is not open to it to insist that the assessee should get their service effected on receipt of dasti summonses from the department. It is needless to point out that when the representatives of the aforementioned six firms swore affidavits before the department, they must have indicated their respective addresses and it would have been quite easy for it to get their service effected on the given addresses. The department cannot press into service its own negligence to serve a witness for calling upon the assessee to do so on its behalf. For this reason also we hold that the order of reassessment passed by the Assessing Authority stands vitiated.

10. For the reasons mentioned above, we set aside the order of reassessment passed by the Assessing Authority and the orders passed by the first and the second appellate authorities and remand the case to the Assessing Authority so that the same may proceed in accordance with law. The petition is accordingly allowed with no order as to costs.

11. The petitioner-firm is directed to appear before the Assessing Authority on 30th January, 1978.


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