1. This is an appeal by the State against the acquittal of the respondent by the Additional First Class Magistrate (Judicial) Kozhikode in a Sales-tax Act case. The respondent submitted A-1 return for the year 1951-52 for a turnover of Rs. 1,56,000. He was provisionally assessed on 10-12-1951 by the then Deputy Commercial tax Officer and a 'A 2' notice was served on him on 11-12-1951. Summons were issued to the assessee respondent herein to produce the accounts and appear in person apparently to prove the correctness of the return submitted by him.
There is no doubt that the notice was served on him. But the respondent sent a reply, Ex. P. 4, wherein he stated that when he went out to a particular place for collecting outstanding due to him he fell ill there and was bedridden and therefore he could not appear in person with the accounts on the appointed day and prove the correctness of his accounts. He prayed therein that no action should be taken against him for not appearing and requested that another date may be given to him so that he can appear in person. But no date was given to him. Under clause (2) of Section 9 of the General Sales-tax Act, the assessing authority started assessing the respondent 'to the best of his judgment.'
He assessed him on a turnover of Rs. 2.00.000 and called upon the respondent to pay the necessary tax. He did not pay up and this prosecution has been launched for not paying the tax on the turnover of Rs. 2,00.000. The learned Magistrate acquitted the respondent on the ground that there is no basis on which the authority had assessed the turnover at Rs. 2,00,000. There is no doubt that the learned Magistrate is wrong in coming to the conclusion that the authorities should not have assessed the respondent on a turnover of Rs. 2.00.000, without any basis whatsoever. The section contemplates only that in case the officer is satisfied that the return submitted by the assessee is incorrect or incomplete, he can assess to the best of his judgment.
But before doing so the section provides that the dealer shall be given a reasonable opportunity of proving the correctness and completeness of any return submitted by him. The learned Public Prosecutor contends that a notice had been given to the respondent asking him to produce the accounts and present himself in person to prove the correctness of the return and when he did not so present himself, it must be deemed that the respondent had not been able to prove the correctness and completeness of his return. But then, this respondent has replied to the notice issued to him stating the circumstances under which he was compelled not to appear.
Therein he says that he was bedridden and could not therefore appear in person and requests that action need not be taken against him till another opportunity is given to him to prove the correctness and completeness of his return. He expresses his readiness to be present on any day when he is called upon to prove the correctness of his return. In spite of this the authorities did not give him any further opportunity but straightway assessed him to the best of their judgment.
The question is whether it can be said that the proviso to Section 9 has been complied with in this case. The proviso says that a reasonable opportunity must be given to the assessee to prove the correctness or the completeness of the return submitted by him. Merely giving an opportunity to the respondent calling upon him to appear on a particular day, on which occasion he was really unable to present himself will not amount to giving a reasonable opportunity. If a dealer was really bedridden and was unable to move about and therefore he could not come with his account books and be present before the authorities, the opportunity that was given cannot be said to be a reasonable opportunity.
If the assesses avoids going to the authorities with the necessary account books and if after the issue of 2 or 3 notices, he does not choose to be present, or that the reasons which he had given are found to be false by the authorities, then certainly they can proceed to assess him to the best of their judgment. But this case does not come in that category. This is a case where the assessee clearly says that he was bedridden and asks for another opportunity to be given to him to present himself with the accounts and without that opportunity being given, the authorities cannot take action under Section 9 (2) that is to say, they cannot proceed to assess the assessee to the best of their judgment.
The assessment therefore is not valid. In the circumstances of this case the respondent cannot be prosecuted for not paying the tax due on an assessment which has not been validly made. No prosecution can therefore lie in the circumstances of this case and the acquittal of the respondent Is therefore justified though not for the reasons given by the learned Magistrate but for the reasons indicated by me in this judgment. The appeal is dismissed.
2. This does not prevent the authorities from calling upon the respondent to prove the correctness and completeness of the return submitted by him by issuing another notice and giving him a reasonable opportunity to prove the correctness and completeness and if he fails to do so, the authorities can proceed to assess him to the best of their judgment.