Skip to content


Radha Kishan Manmohan Kumar and anr. Vs. the State of Haryana and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case Number Civil Writ Petition No. 1355 of 1982
Judge
Reported in[1984]56STC23(P& H)
AppellantRadha Kishan Manmohan Kumar and anr.
RespondentThe State of Haryana and anr.
Appellant Advocate D.S. Nehra and; Arun Nehra, Advs.
Respondent Advocate B.L. Bishnoi, Additional Adv.-General
DispositionPetition dismissed
Cases ReferredMulakh Raj Nand Lal v. Excise and Taxation Commissioner
Excerpt:
.....had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order......is that from the affidavits filed along with the returns, it was not proved that the petitioner-firm had paid tax on purchases of ghee from messrs. subhash chand & company. it has been specifically conveyed to the petitioner-firm that they are being given more opportunities to prove that the tax on the purchases of ghee made by them had been paid at the first stage. they were required to appear and explain their position on 23rd march, 1982. this communication was a step subsequent to the issuance of notice dated 18th february, 1982, under section 31 of the act. this does not rescind that notice. the recital in this communication that 'section 18 of the act requires that tax-paid declaration should certify that the tax on such goods had been paid at the first stage' only indicates.....
Judgment:

Sukhdev Singh Kang, J.

1. This order will dispose of Civil Writ Petitions Nos. 1355 and 1774 of 1982 because they raise common questions of law and arise out of similar facts. In order to appreciate the controversy which falls for determination in these cases, a reference to the facts in Civil Writ Petition No. 1355 of 1982 will be beneficial.

2. Messrs. Radha. Kishan Manmohan Kumar is a registered dealer under the Haryana General Sales Tax Act (for short 'the Act'). It deals in vegetable ghee. In exercise of powers conferred by Section 18 of the Act, the State of Haryana issued a notification on 5th May, 1973, directing that the sales tax on vegetable ghee shall be levied at the first stage of sale.

3. During the months of October to December, 1981, the petitioner-firm purchased vegetable ghee from Messrs. Subhash Chand & Company, a registered dealer of Uklana Mandi, District Hissar. The petitioner-firm filed the quarterly returns in respect of its gross turnover regarding the assessment year 1980-81 within time. A purchase list of tax-paid goods along with necessary declaration forms issued by Messrs. Subhash Chand & Company, relating to the above-mentioned transactions was also filed. After a through scrutiny of the accounts and declaration forms, submitted by the petitioner-firm, the Assessing Authority accepted the returns and completed the assessment: vide order dated 6th August, 1981.

4. The Assessing Authority, Hissar, served a notice dated 18th February, 1982, purporting to be under Section 31 of the Act, intimating the petitioner-firm that it was being afforded an opportunity to explain why reassessment pertaining to the year 1980-81 should not be resorted to and penal action under Section 48 of the Act be not taken.

5. The petitioner-firm submitted a reply to this notice and explained that it had made purchases from the selling dealer after payment of sales tax; the selling dealer had issued the necessary bills and declaration forms. These were submitted along with the returns. It was pointed out that the liability to pay tax was of the same dealer. Along with the reply, affidavits of Messrs. Subhash Chand & Company and Radha Kishan, proprietor of the petitioner-firm were filed.

6. The facts in Civil Writ Petition No. 1774 of 1982 are similar. Messrs. Raj Vanaspati Trading Company, Fatehabad, District Hissar, a dealer registered under the Act purchased vegetable ghee from Messrs. Subhash Chand & Company, Uklana Mandi, District Hissar, in the months of October, November, 1980, and January, 1981, against the bills and declaration forms given by the abovementioned dealer. These were attached with the sales tax returns and the same were accepted and the assessment was completed on 19th August, 1981. The Assessing Authority issued notice dated 23rd March, 1982, intimating that in consequence of definite information in his possession the Assessing Authority had reason to believe that the turnover of the petitioner-firm for the year 1980-81 had escaped levy of tax, so the petitioner-firm was required to appear before the Assessing Authority. Copy of this notice is attached as annexure P-6. A second notice dated 29th March, 1982, under Section 31 of the Act was received by the petitioner-firm, wherein it has been stated that the declaration against the purchases of vegetable ghee made from Messrs. Subhash Chand & Company during the year 1980-81 submitted by the petitioner-firm are believed to be ingenuine as the earlier dealer has not paid tax on the transactions mentioned therein. Aggrieved by these notices, the petitioners have filed these writ petitions.

7. The learned counsel for the petitioners have raised two contentions :

(i) the petitioners had disclosed full facts and had produced all relevant documents in support thereof before the Assessing Authority; accepting the same, the Assessing Authority allowed permissible deductions and framed the assessment. No definite information was received by the Assessing Authority that the turnover of the petitioner-firm had escaped assessment; the Assessing Authority wants to reach different conclusions on the basis of the same facts. This is not permissible in law; and

(ii) that after generally accepting the explanation given by the petitioner-firm, the Assessing Authority issued a fresh notice dated 19th March, 1982. It substituted the notice dated 18th February, 1982. However this notice does not mention that the Assessing Authority wants to reopen the assessment proceedings because he has received definite information that the turnover of the petitioner-firm has escaped assessment.

8. These contentions merit serious consideration, but deserve rejection.

9. On a perusal of the assessment record of Messrs. Subhash Chand & Company, it was revealed that the selling dealer had not shown any sale of vanaspathi ghee to the petitioner-firm nor had it paid any tax on the transactions referred to in the writ petition. While framing the assessment, the Assessing Authority had proceeded on the assumption that the petitioner-firm had made purchases from the selling dealer and they had paid tax thereon. The bills and declaration forms issued by the selling dealer were accepted as correct. In view of the information received from a perusal of the assessment record of the selling dealer, the Assessing Authority could justifiably form a tentative opinion that the taxable turnover of the petitioner-firm had escaped assessment. The Assessing Authority was fully justified in issuing notice dated 18th February, 1982, requiring the assessee to explain their position.

10. The second contention raised by the petitioner-firm is inherently fallacious. The notice dated 19th March, 1982, is in the nature of an interim order. It is not a second notice under Section 31 of the Act. All that has been stated in this document is that from the affidavits filed along with the returns, it was not proved that the petitioner-firm had paid tax on purchases of ghee from Messrs. Subhash Chand & Company. It has been specifically conveyed to the petitioner-firm that they are being given more opportunities to prove that the tax on the purchases of ghee made by them had been paid at the first stage. They were required to appear and explain their position on 23rd March, 1982. This communication was a step subsequent to the issuance of notice dated 18th February, 1982, under Section 31 of the Act. This does not rescind that notice. The recital in this communication that 'Section 18 of the Act requires that tax-paid declaration should certify that the tax on such goods had been paid at the first stage' only indicates that the Assessing Authority was not accepting that the petitioners had paid tax at the first stage to the selling dealer. After the issuance of the notice and during the process of reassessment, if any irregularity or illegality is committed, the petitioner-firm has its remedy by way of an appeal against the final order. It cannot challenge each and every step in the reassessment proceedings through writ petitions. If the above quoted conclusions by the Assessing Authority are legally unsustainable, the petitioner-firm shall have an opportunity to challenge them in an appeal, if the Assessing Authority makes a reassessment to their detriment.

11. The reliance of the petitioner-firm on Mulakh Raj Nand Lal v. Excise and Taxation Commissioner, Punjab 1973 RLR 789 is totally misconceived. In that case, the manufacturers of vegetable ghee had sold the commodity to unregistered dealers. The goods had suffered tax at the hands of the manufacturer who was a registered dealer. The assessee purchased vegetable ghee from the unregistered dealers. The question arose whether the assessee was liable to pay sales tax on the sale of these goods which had been purchased by him from the unregistered dealers. In this context it was held that the assessee was not liable to pay tax on his sales, because the tax on vegetable ghee had been paid by the manufacturer at the first stage. In the present case, it is established on the record that the selling dealer who is the first dealer in the State of Haryana had not paid the tax.

12. For the foregoing reasons, I find no merit in these writ petitions (Nos. 1355 and 1774 of 1982) and the same are dismissed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //