Skip to content


Pawar and Co. Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Sales Tax Writ Petition Nos. 147 and 148 of 1982
Judge
Reported in[1982]50STC318(Raj)
AppellantPawar and Co.
RespondentState of Rajasthan and anr.
Advocates: L.M. Lodha, Adv.
DispositionPetition dismissed
Cases Referred and Indra Methi v. Board of Secondary Education
Excerpt:
.....notice itself was illegal and without jurisdiction, all the subsequent proceedings of the order of provisional assessment as well as imposition of penalty were also illegal and without jurisdiction. the rule requiring reasons to be given in support of an order is, like the principle of audi alteram parterm, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirements of law. in mash-hood ali's case air 1962 ap 187, it was observed that the essential requirements of natural justice, are :firstly, that the person accused should know the nature of the accusation made ;secondly, that he should be given an opportunity to state his case ;and..........tax act, 1954 (hereinafter referred to as 'the sales tax act'), and under rule 54 of the rajasthan sales tax rules, 1955 (hereinafter referred to as 'the sales tax rules'). the case of the petitioner is that he is a registered trader and dealer for the purposes of the rajasthan sales tax act, 1954. the petitioner started his business on 13th may, 1981. the petitioner submitted return of sale and purchase as required under section 7 of the sales tax act for the period between 13th may, 1981, till 9th august, 1981. later on the petitioner found that as there was no taxable turnover as envisaged under section 2(s)(ii) and also as required by proviso 3, sub-clause (3) of rule 25, there was no necessity of filing any return whatsoever as required by section 7 of the sales tax act. the.....
Judgment:

N.M. Kasliwal, J.

1. As almost identical questions of fact and law are involved in both these cases, we dispose of these cases by one common order for convenience. We are stating the facts of Writ Petition No. 147 of 1982 only.

2. The petitioner field this writ petition on 29th January, 1982, challenging the notice (annexure 1) issued under Section 7A read with Section 16(1)(i) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Sales Tax Act'), and under Rule 54 of the Rajasthan Sales Tax Rules, 1955 (hereinafter referred to as 'the Sales Tax Rules'). The case of the petitioner is that he is a registered trader and dealer for the purposes of the Rajasthan Sales Tax Act, 1954. The petitioner started his business on 13th May, 1981. The petitioner submitted return of sale and purchase as required under Section 7 of the Sales Tax Act for the period between 13th May, 1981, till 9th August, 1981. Later on the petitioner found that as there was no taxable turnover as envisaged under Section 2(s)(ii) and also as required by proviso 3, Sub-clause (3) of Rule 25, there was no necessity of filing any return whatsoever as required by Section 7 of the Sales Tax Act. The petitioner, in these circumstances, did not submit any return in the rest of the quarters of the accounting year 1981-82. The Commercial Taxes Officer, Circle Churu, had issued a notice (annexure 1) on 21st January, 1982, to the petitioner under Section 7A of the Sales Tax Act to show cause why the petitioner should not be provisionally assessed. In the same notice, the petitioner was also charged for the contravention of the provisions of Section 7B and Section 16(1)(i) and Rule 54 (vide annexure 1). The petitioner was called upon to furnish his explanation and file his reply on 25th January, 1982. The petitioner appeared before the Commercial Taxes Officer on this date and denied all the charges and allegations made against him under the notice. It was submitted that since there was no taxable turnover, as such there was no necessity for filing the return. The case of the petitioner as set up in the writ petition is that since all the relevent documents, books of account and registers were with the District Supply Officer, Churu, therefore, also it was not possible for it to file a reply to the allegations and charges in detail. The petitioner prayed for an adjournment but the Commercial Taxes Officer reserved the order for provisional assessment which he is likely to pronounce very shortly. The petitioner has thus challenged the validity of notice (annexure 1) dated 21st January, 1982, on various grounds. It was contended by Mr. L. M. Lodha, the learned counsel for the petitioner, that there was no liability on the part of the petitioner to submit quarterly returns as there was no taxable turnover of the petitioner during the period in question. The petitioner was also not required to submit the quarterly returns as its case was covered by Rule 25 of the Sales Tax Rules. The third proviso of Clause (3) of Rule 25 exempted the petitioner from filing the returns since it had no taxable turnover for that period. The petitioner was liable to submit only annual return in form No. ST 21 not later than 60 days after the end of such year of account. By virtue of this provision, the petitioner was supposed to submit its annual return not before the start of next assessment year, i.e., April, 1982. It is further contended that no notice for evasion or avoidance of tax could be given under the provisions of Section 7A of the Sales Tax Act. Such a notice is only contemplated under the provisions of Section 7B and not Section 7A. The assessing authority has not recorded any reasons to believe that the petitioner had evaded or avoided the tax. The petitioner has not been given any opportunity to show cause before taking any action under Section 7B or Section 16(1)(i). It is further contended that a vague charge has been mentioned for violation of Section 16(1)(i) without making it clear from the notice which of the transactions of sale and purchase had been concealed by the petitioner from its books of account and registers.

3. The matter came up before us on 1st February, 1982, when Mr. L.M. Lodha, the learned counsel for the petitioner, submitted that an order of provisional assessment had already been passed by the assessing authority on or about 30th January, 1982. A direction was, therefore, given to the learned counsel to produce the order of provisional assessment and to list the case for admission as soon as the order of provisional assessment is filed. It appears that the order of provisional assessment was filed by the learned counsel on that very date, i.e., 1st February, 1982, after the pronouncement of our order and as such the case was again listed for admission on 2nd February, 1982. Arguments were thus heard for admission on the request of Mr. Lodha though the case was listed in orders. It may be pertinent to observe that though the writ petition challenging the notice (exhibit 1), was filed on 29th January, 1982, in this Court but the order of the provisional assessment had been passed by the assessing authority on 27th January, 1982, itself. Mr. L. M. Lodha still tried to challenge the validity of the notice (exhibit 1) on the ground that in case the notice itself was illegal and without jurisdiction, all the subsequent proceedings of the order of provisional assessment as well as imposition of penalty were also illegal and without jurisdiction. Mr. L. M. Lodha, in support of his contentions, has placed reliance on Siemens Engineering and Manufacturing Co. v. Union of India AIR 1976 SC 1785, Mashhood Ali v. Secretary, Secondary Education AIR 1962 AP 187, Suresh Kumar v. Punjab University AIR 1966 Punj 152, Prakash Cotton Mills v. B. N. Rangwani AIR 1971 Bom 386, Charandas v. Assistant Collector of Customs AIR 1968 Cal 28 and Indra Methi v. Board of Secondary Education AIR 1975 Raj 116. In Siemens Engineering & Manufacturing Company's case AIR 1976 SC 1785 their Lordships of the Supreme Court observed that it was settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram parterm, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirements of law. In Mash-hood Ali's case AIR 1962 AP 187, it was observed that the essential requirements of natural justice, are : firstly, that the person accused should know the nature of the accusation made ; secondly, that he should be given an opportunity to state his case ; and thirdly, that the Tribunal should act in good faith. A reasonable opportunity means an adequate opportunity and it presupposes that the person against whom a charge is levelled should be told with sufficient particularity and preciseness what the charge is and what the allegations are on which the charge is based.

4. These observations were made in a case where action was taken by the authorities against malpractices committed by certain, students during the examination. In Suresh Kumar's case AIR 1966 Punj 152 was a case of a student having used unfair means in the matriculation examination held by the Punjab University, it was observed that the opportunity that had to be given to a candidate is to be a reality and not a mere farce before he can meet his case and give a proper explanation, he must be told not only what is going to be considered against him but also the persons who are giving information against him, so that he may be able to show that the statement made by a particular person is not worthy of credence for certain reasons, besides showing that the statement is incorrect. Prakash Cotton Mills' case AIR 1971 Bom 386 was a case in which challenge was made to the legality of five notices of demand for recovering excise duty under Rule 9 of the Central Excise Rules, 1944. It was observed that the Rules being quasi-judicial must follow rules of natural justice and the assessee must be informed of the charges with full details of the evidence in support of them and given opportunity to meet those charges. Demand notices issued without giving proper opportunity were held to be invalid. In the above case, the provisions of the Excise Rules were taken into consideration, a finding given under Sub-rule (2) of Rule 9 could be used for. imposing a penalty and confiscation. It was thus observed that the finding to be made for imposing excise duty under Sub-rule (2) of Rule 9 will be of extremely serious kind and character. The scheme of the Rajasthan Sales Tax Act and the Rules made thereunder is entirely different and the aforesaid case has no relevance to the facts of the present case. In Charandas case AIR 1968 Cal 28 it was held that the requirements of notice under Section 124 of the Customs Act, 1962, must be strictly followed. Grounds on which goods are being confiscated or a person is penalised must be strictly clear, specific and unambiguous. In Indra Methi's case AIR 1975 Raj 116 it was a case regarding disciplinary action taken against an examinee for adopting unfair means in the examination. It was observed that when the results committee had used the examiner's and an expert's reports but these were not shown to the examinee and he was also not given a chance to offer his explanation, it was clear that the principles of natural justice had been violated.

5. As already mentioned above, the present writ petition was filed on 29th January, 1982, when the order of provisional assessment had already been passed by the assessing authority on 27th January, 1982. It is not in dispute that the order of provisional assessment passed on 27th January, 1982, is an appealable order and the petitioner has an adequate alternative remedy of challenging such an order of provisional assessment. The notice (exhibit 1) basically challenged by the petitioner in this writ petition loses its force. The assessing authority in the order of provisional assessment has given reasons for passing the order of provisional assessment as well as penalty imposed on the petitioner. We do not propose to go in detail on the points raised by Mr. L. M. Lodha in challenging the notice (exhibit 1) as in our opinion it might prejudice the case of the petitioner in appeal against the order of provisional assessment. None of the authorities cited by the learned counsel for the petitioner laid down such a rule that a person may challenge a notice, when an order of provisional assessment had already been passed before the filing of the writ petition. In our view, the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court in exercise of its powers under Article 226 of the Constitution of India. The notice (exhibit 1) had already merged in the order of provisional assessment passed earlier to the filing of the writ petition. The petitioner has a right to go in appeal against the order of provisional assessment and the merits of the order of provisional assessment cannot be examined. Firstly, the petitioner has not directly challenged the order of provisional assessment and has only tried to challenge the same indirectly through the notice (exhibit 1). Even otherwise this Court in the exercise of its extraordinary jurisdiction under Article 226 cannot sit as a court of appeal over the order of provisional assessment.

6. Further, there is a proper, adequate remedy to the petitioners to challenge the order of provisional assessment by way of appeal under the Rajasthan Sales Tax Act. Thus we find no force in these writ petitions and the same are dismissed summarily.


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