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Deputy Commissioner of Agricultural Income-tax and Sales Tax Vs. A.M. Abdul Wasigh and Bros. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case Number Tax Revision Case No. 94 of 1959
Judge
Reported in[1962]13STC295(Ker)
AppellantDeputy Commissioner of Agricultural Income-tax and Sales Tax
RespondentA.M. Abdul Wasigh and Bros.
Appellant AdvocateThe Government Pleader
Respondent Advocate C.V. Venkiteswara Iyer and; T.L. Viswanatha Iyer, Advs.
DispositionAppeal dismissed
Cases ReferredState of Kerala v. N. K. Thomas T.R.C. No.
Excerpt:
.....failure to produce the c forms before the date of the assessment there is nothing to prevent the appellate authority from acting on them. thereafter the assessment order in the case was made, which is dated january 31, 1959, was despatched on february 14, 1959, and was delivered to the assessee on february 18, 8-38 1959- the assessee's case is that he had prior to the receipt of the assessment order sent the c forms to the assessing authority, who had received them on february 17. on these averments, he asked the appellate assistant commissioner to receive the c forms and make fresh assessment, but failed. the party in such a case, being earlier told what the consequences of the failure would be, must be presumed to know the consequences of the failure, and should the earlier order be..........income-tax and sales tax, kerala state, north zone, kozhikode, and seeks to vary the order by the sales tax appellate tribunal dated august 17, 1959. thereby the tribunal had ordered the assessing authority to make fresh assessment, and the reasons are contained in paragraph 3 of the order, which reads as follows:-section 8(4) of the central sales tax act or the rules made -under the act do not prescribe a time limit within which the c forms should be produced by the dealer. if there was sufficient cause for the appellant's failure to produce the c forms before the date of the assessment there is nothing to prevent the appellate authority from acting on them. in this case the delay in producing the c forms, which was only a short one, was due to the delay in getting them from the.....
Judgment:

M.A. Ansari, C.J.

1. This revision petition is by the Deputy Commissioner of Agricultural Income-tax and Sales Tax, Kerala State, North Zone, Kozhikode, and seeks to vary the order by the Sales Tax Appellate Tribunal dated August 17, 1959. Thereby the Tribunal had ordered the assessing authority to make fresh assessment, and the reasons are contained in paragraph 3 of the order, which reads as follows:-

Section 8(4) of the Central Sales Tax Act or the Rules made -under the Act do not prescribe a time limit within which the C Forms should be produced by the dealer. If there was sufficient cause for the appellant's failure to produce the C Forms before the date of the assessment there is nothing to prevent the appellate authority from acting on them. In this case the delay in producing the C Forms, which was only a short one, was due to the delay in getting them from the registered dealers to whom the goods were sold. In the circumstances, we think that the delay should be condoned.

2. The petitioner's case before us is that the remand in the case is incorrect, because the Taxing Officer could not have condoned the delay, and the appellate authority must decide the appeal on the records unless fresh evidence be necessary for such decision. As the Tribunal had not felt any such necessity, it was urged that in the circumstances, the order is not reasonable.

3. In order to appreciate the point, we would narrate in detail some facts of the case. The dealer had for the period from June i, 1957, to March 31, 1958, reported gross and net turnovers under the Central Sales Tax Act, hereafter referred to as the Act, and the total of inter-State sales as per the accounts was found to be Rs. 64,914-85 nP. The exemption claimed was found admissible to the extent of Rs. 7,105-45nP., and a notice was issued proposing under the Act to assess the dealer on the gross turnover of Rs. 64,914-85 nP., which included Rs. 19,272-25 nP., being the price of the goods covered by C Forms. The Taxing Officer proposed assessing on Rs. 19,272 25 nP. at the rate of one per cent, and the remaining amount of Rs. 57,809-40 nP., at the rate of 4 per cent, and 2 per cent, because the sales were covered by C Forms. Out of the latter sum, Rs. 13,167-74 nP., was the total of ginger sales, and Rs. 133-50 nP., of pepper, the rest being for other goods. The aforesaid notice was despatched on January 23, 1959, with clear indication that the assessee would be taxed at 4 nP., on green ginger and pepper, if objections against the above proposal be not filed, and the accounts produced at n A.M. on January 31, 1959. The said notice was served on January 27, 1959, and there is nothing on record to show the dealer having asked for adjournment, or C Forms having been received by the officer. The dealer's case is that he had sent his objections on January 30, 1959, pleading that ginger being vegetable had been exempted from the tax under the Act, and the dealer should be allowed time to file the C Forms, which were not ready with him due to the commodity being exempted. Thereafter the assessment order in the case was made, which is dated January 31, 1959, was despatched on February 14, 1959, and was delivered to the assessee on February 18, 8-38 1959- The assessee's case is that he had prior to the receipt of the assessment order sent the C Forms to the assessing authority, who had received them on February 17. On these averments, he asked the Appellate Assistant Commissioner to receive the C Forms and make fresh assessment, but failed. In appeal he succeeded, the Appellate Tribunal being of the view that there was sufficient ground for the delay being condoned in the case. It is obvious that the Taxing Officer had no C Forms when the assessment order was made or despatched, and unless he be bound to receive them until the assessment order had reached the assessee, it would be difficult to hold that he had erred in not accepting them. The dealer's learned Advocate has, however, urged that till assessment be finally made the assessing authority is bound to receive the C Forms, and the final assessment is not made till the assessment order be served on the assessee. The Advocate has also argued that the Appellate Authority, having regard to the rules and regulations, would be justified in condoning the delay and accepting the C Forms.

4. In support of the first argument, reliance has been placed on Swaminathan v. Letchmanan (1930) I.L.R. 53 Mad. 491, Govindji v. Commissioner of Sales Tax, Madhya Pradesh [1955] 6 S.T.C. 183, Director of Supplies and Disposals v. Board of Revenue [1960] 11 S.T.C. 589, N. N. Majumdar v. N. M. Bardhan A.I.R. 1959 Cal. 219, Lakshmana Rao v. Revenue Divisional Officer A.I.R. 1954 Mad. 942 and S. M. Transport Co. v. Bashir Ahmed A.I.R. 1961 Bom. 73. The legal rules laid in these cases broadly is that an order cannot be effective against a party unless passed in the presence of the party, and they can be summarised in the words of Sinha, J., in N.N. Majumdar's case, A.I.R. 1959 Cal. 219 to be the following :-

(1) An order may be taken to be made on the date it came into existence, if the nature of the order is such that it is not necessary to communicate it to anyone...

(2) If an order is made which affects the rights of a person, then the order must be communicated to such person in order to be complete and effective. The date of the order is the date when it is made known to the affected party. To this, however, there are certain exceptions, which are as follows :--

(i) Where the order is made in the presence of the party, whose right has been affected.

(ii) Where notice has been given to the party affected by the order to be present at the announcement, but in spite of such notice, he fails to be present. Where the method of giving notice is prescribed, e.g., by publication in the Gazette, compliance with the same will be deemed sufficient, as also in a case where the law presumes knowledge.

(iii) Where owing to the obstruction of the party affected himself, the order cannot be communicated within a reasonable time.

(iv) Where the authority making the order, in spite of reasonable efforts, has been unable to serve the order within a reasonable time or at all. In such a case, the date of making of the order is the date of the order.

5. It is obvious that the aforesaid propositions would be of no help, where the order not communicated be consequential to and dependent on an earlier order, which the party aggrieved had notice of and fair opportunity of complying with; for, then no infringement of rules of natural justice takes place, which the rules mentioned above intend to guard against. The party in such a case, being earlier told what the consequences of the failure would be, must be presumed to know the consequences of the failure, and should the earlier order be unjust the appellate authority consistently with rules governing appellate powers would afford appropriate relief. We think the Sales Tax Officer's earlier order is not such, and the dealer was informed what the consequences of the failure would be. Nor do we see how the assessing authority can, in the absence of particular rules, be held bound to reopen an assessment order on receipt of later applications submitting documents. There are cases like State of Bihar v. Telu Ram Jain [1953] 4 S.T.C. 252, Shimbhaoli Sugar Mills Co. v. Commissioner of Sales Tax [1953] 4 S.T.C. 289 and Rahman Stores v. Commissioner of Taxes, Assam [1953] 4 S.T.C. 336, where it has been held, following the rule of construction of enactment that, unless the Legislature otherwise directs, the order should be treated as passed on the date that it is made, and its operation would not be suspended till the party gets notice. According to these cases, the dealer's knowledge of the assessment would not be very material, and in this case, what would be relevant is whether the dealer had not been given adequate information Of what would be the consequences of his failure to adduce evidence after a particular period. . Therefore, in this case, the relevant date would be not of the assessment order but of the order directing the dealer to give evidence in support of the case, which was admittedly served on the dealer before the assessment order, i.e., on January 27, 1959. In that order the consequence of such failure was also indicated, and it would be straining the relevant rules by holding that the Taxing Officer was bound to admit evidence after the final assessment had been made and issued to the dealer. The Tribunal may be right in holding that the right to adduce the C Forms in the case existed prior to the final assessment order, but it failed to note that the C Forms had been furnished after the final assessment had been made. The assessment rests on the service of the earlier order, and the Taxing Officer is not bound to adjourn cases for receiving evidence. The relevant rule reads as follows :-

6. (i) Every dealer registered under Section 7 of the Act and every dealer liable to pay tax under the Act shall submit a return of all his transactions, including those in the course of export of the goods out of the territory of India in Form II together with the connected declaration forms so as to reach the assessing authority on or before the 20th of each month showing the turnover for the preceding month and the amount or amounts collected by way of tax together with proof for the payment of tax due thereon under the Act.

Provided that in cases of delayed receipt of declaration forms, the dealer may submit the declaration forms at any time before the assessment is made.

* * * *(3) The return in Form II so filed shall, subject to the following sub-rule, be provisionally accepted.

* * * *(5) After the close of the year the assessing authority shall after such scrutiny of the accounts and after such enquiry as he considers necessary satisfy himself that the return or returns filed are correct and complete and finally assess under a single order the tax or taxes payable under the Act for the preceding year or for the year to which the return submitted relates, as the case may be, provided that if no return or returns have been submitted by the dealer as required by Sub-rules (1) and (2) or if any return or returns submitted by him appear to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such enquiry as he considers necessary, and after giving the dealer an opportunity of proving the correctness and completeness of the return submitted by him, determine the turnover to the best of his judgment and finally assess under a single order the tax or taxes payable under the Act for the preceding year or the year concerned. Such action may be taken in respect of a dealer who discontinues his business during the course of a year soon after such discontinuance.* * * *

6. Reliance has been placed before us on the words 'before the assessment is made' in the proviso to Rule 6(1), and it was urged that these show the dealer having right to adduce the forms till the assessment order reaches him ; for, only then the assessment becomes final, but we think the phraseology of Rule 6(5) does not permit investigation being continued after the officer has finally assessed, and, therefore, the taxing authority has got no power to reopen the assessment. In these circumstances, the taxing officer's order is not vitiated.

7. It is next argued that the appellate authority has got sufficient power to condone the delay if there be failure to submit the C Forms and the delay be reasonable. Reliance in this connection has been placed on State of Kerala v. N. K. Thomas T.R.C. No. 1 of 1960 decided on 12th June, 1961, where a Division Bench of this Court has upheld the following order of the Appellate Tribunal:-

The second contention of the appellant is that, in any case, the Appellate Assistant Commissioner ought to have accepted the fresh Declaration Forms produced by the appellant before him. The only reason why they were not accepted is that they were produced after the assessment was over. The Appellate Assistant Commissioner has not considered the question whether there was sufficient cause for the appellant not producing the Forms before the order of assessment was passed. It is true that under Rule 6(1) of the Central Sales Tax (Kerala) Rules the dealer is bound to submit the return for each month on or before the 20th of the succeeding month together with the connected Declaration Forms. But that does not mean that the Sales Tax Officer has no jurisdiction to accept a return submitted after that date or a Declaration Form filed after that date. It was not contended for the Department that the Sales Tax Officer has no authority to accept a return filed after the due date. The question in such a case will be whether there was sufficient cause for the delay in making the return. The same will be the case with regard to the filing of the Declaration Form also. Even according to the Sales Tax Officer he granted some time to the appellant to produce fresh Declaration Forms. He did not, however, post the case to a particular date for the production of fresh Delcaration Forms. As soon as the appellant was informed by the Sales Tax Officer that the Forms produced by him were defective, he wrote to the purchasers in West Bengal for the issue of fresh Forms. They took up the position that the Declaration Forms already furnished by them were in order. That was the opinion given by their Sales Tax Officer. This naturally occasioned some correspondence and ultimately the purchasers yielded to the request of the appellant and issued fresh Declaration Forms. But by that time the Sales Tax Officer had passed the assessment order. The appellant, therefore, produced them before the Appellate Assistant Commissioner. We think that in this case there was sufficient cause for the delay in producing the fresh Declaration Forms 'and that the Appellate Assistant Commissioner ought to have excused the delay and accepted the Forms.

8. We do not think the decision in the above case justifies the conclusion that the Appellate Tribunal, even where the dealer's failure be not explainable as being beyond his control and without negligence, would be justified in condoning the delay. That would be opposed to the rule well-settled that the case should be decided on the record as it stands, unless the Appellate Tribunal finds the record not sufficient to decide the appeal or there be fresh evidence available to justify review by the ordinary tribunal. The appellate authority in the case does not say that it finds the record inadequate, and there is no procedural error by the Taxing Officer, which taints the assessment. Obviously the Appellate Assistant Commissioner was right in not allowing the appeal, and we are afraid in these circumstances the Tribunal's order is not correct. The Tribunal has erred in allowing the forms to be received, and we accordingly allow the revision petition, vacate the order of the Tribunal, and the appeal before it stands dismissed with costs, Advocate's fee Rs. 50.


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