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Jhagru Shaw and ors. Vs. Commissioner of Commercial Taxes and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revision Cases Nos. 541 (W) and 542 (W) of 1962
Judge
Reported in[1966]17STC130(Cal)
AppellantJhagru Shaw and ors.
RespondentCommissioner of Commercial Taxes and ors.
Appellant AdvocateA.K. Sinha, Adv.
Respondent AdvocateN.C. Chakravorty and ;S.N. Dutt, Advs.
Cases ReferredRaghubar Mandal Harihar Mandal v. The State of Bihar
Excerpt:
- .....is wholly justified. it is now a well-known proposition of law that if a revenue officer is to make an assessment to the best of his judgment, against an assessee who is in default as regards supplying information, he must not act dishonestly, or vindictively or capriciously, because he must exercise his judgment in the matter. he must make what he honestly believes to be a fair estimate of the proper figure of assessment and for this purpose he may take into consideration local knowledge and repute in regard to the assessee's circumstances and his own knowledge of the previous returns by and the assessments of, the assessee and all other matters which he thinks would assist him in arriving at a fair and proper estimate. though there must be necessarily some guess work in the matter,.....
Judgment:

B.N. Banerjee, J.

1.The petitioner is a business man and carried on business under the name and style of 'Jhagru Shaw and Dukhraj Shaw'. He is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941. For the four quarters of the year 1366 B.S. the petitioner filed a return but failed to produce his books and papers in support of the return when called upon to do so. I am not concerned with the excuse put forward by the petitioner for his failure to produce his books of account. That excuse may be true or untrue. I do not decide. In these circumstances, the respondent-Commercial Tax Officer made a summary assessment upon the petitioner and estimated the gross turnover at Rs. 1,80,000 and the taxable turnover at Rs. 1,20,000 and assessed upon the petitioner sales tax amounting to Rs. 6,000. He also imposed a penalty of Rs. 100 on the petitioner.

2. Aggrieved by the assessment order the petitioner moved this Court under Article 226 of the Constitution praying for a writ of certiorari for the quashing of the alleged best judgment assessment and for a mandate upon the respondents directing them to forbear from enforcing the assessment order against the petitioner and obtained this Rule.

3. Mr. Anil Kumar Sinha, learned Advocate for the petitioner, contended that the best judgment assessment was made on extraneous and irrelevant materials and in an arbitrary manner and must not be sustained. In order to test the argument of Mr. Sinha, it is necessary for me to consider the relevant portion of the impugned order, which is couched in the following language :-

I find from records that the assessment of the preceding years also had to be completed in the absence of books of accounts due to dealer's failure to produce the same on the dates of hearing. In spite of the ex parte assessment, the dealer does not care to appear with books of accounts on the date of hearing and as such it appears to me that he finds such accounts made in the absence of books of accounts to his advantage. Taking this into consideration, I estimate the gross turnover of the dealer at Rs. 1,80,000 and the taxable turnover at Rs. 1,20,000.

4. In my opinion the criticism made by Mr. Sinha of the impugned order is wholly justified. It is now a well-known proposition of law that if a Revenue Officer is to make an assessment to the best of his judgment, against an assessee who is in default as regards supplying information, he must not act dishonestly, or vindictively or capriciously, because he must exercise his judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment and for this purpose he may take into consideration local knowledge and repute in regard to the assessee's circumstances and his own knowledge of the previous returns by and the assessments of, the assessee and all other matters which he thinks would assist him in arriving at a fair and proper estimate. Though there must be necessarily some guess work in the matter, it must be honest guess work. If any authority be needed for the aforesaid proposition, reference need be made to the decision of Privy Council in Income Tax Commissioner v. Badridas Ramrai Shop [1937] 5 I.T.R. 170. In the same tune the Supreme Court has laid down the law in the case of Raghubar Mandal Harihar Mandal v. The State of Bihar (1958) S.C.A. 852 from which I set out the relevant extract:-

No doubt it is true that when the returns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess ; but the estimate must be related to some evidence or material and it must be something more than mere suspicion. To use the words of Lord Russel of Killowen again, 'he must make what he honestly believes to be a fair estimate of the proper figure of assessment' and for this purpose he must take into consideration such materials as the assessing officer has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate. In the case under our consideration, the assessing officer did not do so, and that is where the grievance of the assessee arises.

If the law as laid down in the aforesaid two cases be applied against the impugned assessment order, the order certainly fails to conform to the minimum requirements of best judgment assessment.

5. Mr. Nirmal Chandra Chakravarty, learned Government Pleader, however, aspired to salvage the impugned order with the contention that an assessee who wholly non-cooperated with the assessing authorities in the matter of production of books and evidence, must not be permitted to dispute such best judgment assessment as may have been made by the assessing authorities. I am unable to uphold this contention. An assessee may be bad enough but there is no reason why the assessing authorities must be worse and must not conform to the requirements of law in making a best judgment assessment.

6. Mr. Chakravarty lastly contended that the petitioner had alternative remedies by way of appeal and revision. He did not take recourse to the same. He must not be permitted to succeed straightway by way of an application under Article 226 of the Constitution. I am unable to sustain the argument in the form made. It is no doubt true that where there is an alternative remedy, this Court may not in its discretion interfere. The existence of an alternative remedy does not touch the jurisdiction of this Court to interfere. In the instant case, regard being had to the exceedingly unsatisfactory nature of the assessment order, I have decided to exercise my discretion in favour of the petitioner.

7. In the result, I quash the best judgment assessment made by the respondent and remit the case to the Commercial Tax Officer for him now to make another assessment according to law.

8. This Rule succeeds to the limited extent indicated above. Let a writ of certiorari accordingly issue.

9. There will be no order as to costs.

Civil Revision No. 542 (W) of 1962.

10. The point involved in this Rule is the same point as involved in Civil Revision No. 541 (W) of 1962. For the reasons given by me in Civil Revision No. 541 (W) of 1962, I make this Rule also absolute to the extent indicated in the other Rule.


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