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Ram Kumar and Co. and anr. Vs. State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case Number Civil Writ Petition No. 3060 of 1984
Judge
Reported in[1986]62STC184(P& H)
AppellantRam Kumar and Co. and anr.
RespondentState of Haryana and ors.
Appellant Advocate D.S. Nehra and; Arun Nehra, Advs.
Respondent Advocate B.L. Bishnoi, Additional Adv.-General and; Ashok Bhan and;
Excerpt:
.....concerned acquire knowledge of passing of the said order. - the submission appears to be well-founded. as already indicated the tax liability as well as the penalty has been imposed on respondent no. 4. as a matter of fact the impugned order well-indicates that the assessing authority was suffering from some sort of confusion as to the exact status and liability of the petitioners. 6. in the light of the above, i am satisfied that the impugned order deserves to be set aside and i order accordingly......company, respondent no. 4, whose sole proprietor was suraj bhan son of kali ram. as per the assessing authority these enquiries revealed that the petitioners had been conducting their business 'in partnership' with the said firm. the operative part of the notice reads as follows :you are, therefore, directed to show cause by attending my office on 27th april, 1982, at 10 a. m. situated on 3rd floor, mini secretariat, hissar, as to why you should not be declared as dealer under section 53 of the haryana general sales tax act, 1973, in connection with all the transactions of purchasing and sales of vegetable ghee and other commodities made in the name of m/s. garg trading co., uklana, during the year 1981-82. 3. in response to this notice the petitioners took up the stand that they.....
Judgment:

I.S. Tiwana, J.

1. The Assessing Authority, Hissar, issued a notice dated 21st April, 1982 (annexure P. 1), under Section 53 of the Haryana General Sales Tax Act, 1973 (for short, the Act), to the firms which are before me in these four C. W. P. Nos. 3060, 3061, 3269 and 3270 of 1984 for declaring them to be dealers under the Act and for framing assessments against them for the year 1981-82. Since in these four petitions similar contentions have been raised, these are being disposed of through this common judgment. For facility of reference, the facts stated in C. W. P. No. 3060 have only been noticed.

2. The notice referred to above was issued to the petitioners on the basis of certain enquiries conducted into the business transactions of M/s. Garg Trading Company, respondent No. 4, whose sole proprietor was Suraj Bhan son of Kali Ram. As per the Assessing Authority these enquiries revealed that the petitioners had been conducting their business 'in partnership' with the said firm. The operative part of the notice reads as follows :

You are, therefore, directed to show cause by attending my office on 27th April, 1982, at 10 A. M. situated on 3rd floor, Mini Secretariat, Hissar, as to why you should not be declared as dealer under Section 53 of the Haryana General Sales Tax Act, 1973, in connection with all the transactions of purchasing and sales of vegetable ghee and other commodities made in the name of M/s. Garg Trading Co., Uklana, during the year 1981-82.

3. In response to this notice the petitioners took up the stand that they had nothing to do with the business of M/s. Garg Trading Company nor were they partners of that firm and claimed that they cannot be held to be dealers in connection with the transactions of that firm; rather were registered as dealers under the Act in their own right. Thus a contest having been raised, the Assessing Authority, after certain adjournments in the matter has, through a long winding order running into 94 pages, come to the conclusion that the petitioners had formed some sort of 'secret partnership to run business on a large scale in the name of M/s. Garg Trading Co., Uklana' and were thus liable to be declared as dealers under Section 53 of the Act. After recording this conclusion he has made respondent No. 4 liable to pay tax to the tune of Rs. 6,08,900 and a penalty of Rs. 20,00,000 under Section 48 of the Act for filing 'incorrect returns knowingly and deliberately'. This order of the Assessing Authority is impugned by the petitioners on a wide variety of grounds some of which are that the order is self-contradictory and is violative of principles of natural justice; and that the Assessing Authority had no jurisdiction to pass this order.

4. In support of the first contention noticed above, Mr. Nehra, learned counsel for the petitioners, urges that on the one hand the Assessing Authority has held the petitioners to be partners of respondent No. 4, i.e., M/'s. Garg Trading Company, Uklana, and on the other, has declared them to be the dealers under the Act in their own right. The submission appears to be well-founded. As already indicated the tax liability as well as the penalty has been imposed on respondent No. 4. In case the petitioners are partners of that firm then their liability to pay the tax and the penalty as partners is automatically theirs. In that situation there is no question of them being declared as dealers. In case their business transactions have to be assessed as dealers and not as partners of respondent No. 4, then on account of their business transactions the liability could not be fastened on respondent No. 4. As a matter of fact the impugned order well-indicates that the Assessing Authority was suffering from some sort of confusion as to the exact status and liability of the petitioners.

5. Similarly I find that the second submission of Mr. Nehra, as noticed above, is also not devoid of merit. As already indicated, the whole basis for the issuance of the notice to the petitioners was what had been revealed to the Assessing Authority during the course of certain enquiries which admittedly were carried on behind the back of the petitioners. Even subsequent to the service of that notice and in spite of a request from them that they should be permitted to cross-examine the persons or the dealers who had said or had to say anything against them, the Assessing Authority chose to decline the prayer on the ground that in case that course was adopted then the assessment proceedings were bound to be delayed. It deserves to be highlighted here that the Assessing Authority, Shri Gokal Chand, had heard the arguments in this case on 29th September, 1982, and passed the final order on 9th May, 1984, that is, after more than one and a half years. This too, it appears, was done for the reason that by that time he had already received his transfer orders from Hissar to Karnal. Further it is apparent from certain observations made by this officer at pages 34, 38 and 65 of the impugned order, that he has relied upon the statement of Shri T. L. Kundur, .Branch Manager, State Bank of India, recorded on 13th and 17th of May, 1982, a letter dated 27th October, 1982 (running into seven pages), and the statement of Shri Des Raj son of Nathu Ram who is alleged to have voluntarily appeared before him on 28th October, 1982, and deposed about the alleged partnership of the petitioners with respondent No. 4 and this material was never put to the petitioners nor were they allowed to cross-examine or challenge the veracity of these witnesses in any manner. As a matter of fact all this material was collected by the Assessing Authority behind their back. The latter two pieces of evidence appear to have been collected by this officer even after his hearing the final arguments in the case and reserving the order on 29th September, 1982. It is thus manifest that no proper opportunity has been afforded to the petitioners before the passing of the impugned order to their detriment.

6. In the light of the above, I am satisfied that the impugned order deserves to be set aside and I order accordingly. In normal course I would have sent the cases back to the Assessing Authority, Hissar, for redetermining the whole matter but I find that since allegations of mala fides have been levelled against the officer who passed the order, annexure P. 6, and the petitioners also allege some victimisation, I feel it would be proper if a senior officer of the department deals with the matter afresh. It is needless for me to point out here that the petitioners would be entitled to argue on all the points which they have taken up in their reply to the notice or in the writ petition. I thus remand these cases to the Excise and Taxation Commissioner (Appellate Authority), Rohtak, who would go into the matter again in accordance with law. The parties through their counsel are directed to appear before him on 9th September, 1985.


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