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S.K. Gupta and Another Vs. Commissioner, Sales Tax, New Delhi and Others - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 2273 of 1983
Judge
Reported in[1986]61STC20(Delhi)
ActsCentral Sales Tax Act, 1956 - Sections 9; Delhi Sales Tax Act, 1975 - Sections 23
AppellantS.K. Gupta and Another
RespondentCommissioner, Sales Tax, New Delhi and Others
Excerpt:
the assessed sent the application for adjournment by registered post as its authorized representative was unwell - the sales tax office without dealing with the application passed ex parte assessment order - the assessed preferred two appeals which were rejected - the two revision petitions were also dismissed - further, both appellate and revisional authority took the stand application for adjournment that was not received on time - the petition was filed on the same - the petitioner assessed ex parte without affording adequate opportunity - it was held that the orders of assessment of the appellate and revisional court were to be quashed. - .....assessment year 1976-77 ex parte assessments were made by orders dated may 7, 1980, passed by the sales tax officer, ward no. 11, vikas bhavan, new delhi, under section 23 of the delhi sales tax act and under section 9 of the central sales tax act, 1956, read with section 23 of the delhi sales tax act, 1975. the petitioner filed appeals and the only point urged was that the sales tax officer has proceeded to make ex parte assessments without dealing with the application for adjournment sent by the assessed by registered ad post and indeed by ignoring it. the assessed's case was that its authorised representative was unwell and so, could not attend the hearing fixed for may 5, 1980. he had applied for adjournment in time but without dealing with his application the sales tax officer.....
Judgment:

Prakash Narain, C.J.

1. The petitioner is a registered dealer within the meaning of the Delhi Sales Tax Act, 1975, and the Central Sales Tax Act, 1956. In respect of the assessment year 1976-77 ex parte assessments were made by orders dated May 7, 1980, passed by the Sales Tax Officer, Ward No. 11, Vikas Bhavan, New Delhi, under section 23 of the Delhi Sales Tax Act and under section 9 of the Central Sales Tax Act, 1956, read with section 23 of the Delhi Sales Tax Act, 1975. The petitioner filed appeals and the only point urged was that the Sales Tax Officer has proceeded to make ex parte assessments without dealing with the application for adjournment sent by the assessed by registered AD post and indeed by ignoring it. The assessed's case was that its authorised representative was unwell and so, could not attend the hearing fixed for May 5, 1980. He had applied for adjournment in time but without dealing with his application the Sales Tax Officer proceeded to make ex parte assessments which amounts to denial of opportunity by the Sales Tax Officer. The appellate authority (Assistant Commissioner of Sales Tax) rejected the two appeals by an order dated February 2, 1982.

2. The assessed thereupon preferred two revision petitions to the Commissioner of Sales Tax but these were also dismissed. Both the appellate authority and the revisional authority took the stand that no application for adjournment sent by post along with medical certificate was received in time by the assessing authority and, thereforee, the assessing authority could not be blamed in proceeding to make ex parte assessments. The assessed has challenged the orders of the Sales Tax Officer, the Assistant Commissioner and the Commissioner by the present petition under article 226 of the Constitution of India.

3. Return to the rule nisi has been filed by an affidavit sworn by Shri M. L. Sharma, Sales Tax Officer, Ward No. 11. To the contention of the petitioner that he had been denied opportunity, it has been said by way of reply that notices to the assessed were issued for appearance before the Sales Tax Officer on April 23, 1980. These were personally served on the partner of the assessed on April 15, 1980. As nobody appeared on the date of hearing, another opportunity was given and notices were issued which were served on the petitioner on April 24, 1980, for appearance on May 5, 1980. On the date fixed the Sales Tax Officer recorded as under :

'5-5-1980. None appeared nor any intimation received. The notice as been duly served on the dealer. Kept for ex parte order. To come up for the collection of orders on 7-5-1980.

Sd/

M. L. Vijay'

4. With regard to the appellate and revisional orders, it has been submitted by the respondents that adjournment could not be claimed as of right. It was the party's duty to have verified what happened on May 5, 1980, or to have sent someone to attend the hearing. In the absence of proper representation or a proper application for adjournment, the petitioner can claim no infringement of any right and so, is not entitled to any relief.

5. During the course of hearing, the learned counsel for the petitioner brought to our notice copy of the application dated May 2, 1980, by which the petitioner sought adjournment from the Sales Tax Officer. He also brought to our notice the postal receipt by which it stood proved that this application was dispatched boy registered AD post to the Sales Tax Officer, Word No. 11, Vikas Bhavan, New Delhi, on May 2, 1980, itself. It stands proved on the record that the said communication dated May 2, 1980, stood delivered to the addressee, namely, the Sales Tax Officer, on May 3, 1980. If the office of the Sales Tax Officer concerned was not properly organized and he missed this application when he took up the matter on May 5, 1980, the petitioner cannot be blamed. It is correct that the party had no absolute right to get an adjournment. The party, however, did have a right to have his application considered. It was not considered. Indeed, the Sales Tax Officer proceeded to record differently in his order of May 5, 1980, which we have extracted above. There is a clear non-application of mind and casual approach to the assessment. It is surprising that even the appellate and the revisional authorities did not examine this aspect. In this view of the matter we are persuaded to hold that the petitioner has been assessed ex parte without an adequate opportunity being granted to it. The impugned orders of assessment, the appellate orders and the revisional orders are, thereforee, quashed. The respondents will be free to make assessment again in accordance with law. We direct the petitioner to appear or cause appearance to be put in before the Sales Tax Officer on May 6, 1985, for further proceedings in the assessment for the year 1976-77. In the circumstances of the case we make no orders as to costs.


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