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New Empire Hosiery Mills Vs. Additional Member, Board of Revenue - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberMatter No. 101 of 1968
Judge
Reported in[1974]33STC21(Cal)
AppellantNew Empire Hosiery Mills
RespondentAdditional Member, Board of Revenue
Appellant AdvocateS.R. Sen ;and G.C. Mukherjee, Advs.
Respondent AdvocateS. Bose ;and R.N. Das, Advs.
Cases ReferredKedar Nath Jute Manufacturing Co. v. Commissioner
Excerpt:
- .....on an application for revision made before it can make an enhancement?(2) does rule 27a of the bengal sales tax rules, 1941, apply to a best judgment assessment?2. in this case, it appears that as the dealer failed to produce books of account, etc., in respect of the assessment for the period from 1st july, 1957, to 16th july, 1957, and three quarters ended on chaitra, 1364 b.s., under the central sales tax act, 1956, as per direction of a notice in form c issued by the commercial tax officer, manicktala charge, he assessed the dealer on estimate to the best of his judgment by the order dated 12th june, 1967. the commercial tax officer, manicktala charge, calcutta, estimated the gross turnover at rs. 3,00,000 against the dealer's estimated turnover of rs. 2,68,816.24 according to the.....
Judgment:

Sabyasachi Mukharji, J.

1. In this reference under Section 9(3) of the Central Sales Tax Act, 1956, read with Section 21(2)(b) and (3) of the Bengal Finance (Sales Tax) Act, 1941, the following questions have been referred to this court:

(1) Whether the Board of Revenue, West Bengal, in the exercise of jurisdiction under Section 20(3) of the Bengal Finance (Sales Tax) Act, 1941, read with Section 9 of the Central Sales Tax Act, 1956, on an application for revision made before it can make an enhancement?

(2) Does Rule 27A of the Bengal Sales Tax Rules, 1941, apply to a best judgment assessment?

2. In this case, it appears that as the dealer failed to produce books of account, etc., in respect of the assessment for the period from 1st July, 1957, to 16th July, 1957, and three quarters ended on Chaitra, 1364 B.S., under the Central Sales Tax Act, 1956, as per direction of a notice in form C issued by the Commercial Tax Officer, Manicktala Charge, he assessed the dealer on estimate to the best of his judgment by the order dated 12th June, 1967. The Commercial Tax Officer, Manicktala Charge, Calcutta, estimated the gross turnover at Rs. 3,00,000 against the dealer's estimated turnover of Rs. 2,68,816.24 according to the return submitted by the dealer. Further, in the absence of any declaration form in form C, inter-State sales made to registered dealers were estimated at Rs. 1,00,000 and the balance as sales to unregistered dealers disallowing the claim for allowance according to the return submitted. Against the order of the said Commercial Tax Officer the dealer preferred an appeal before the Assistant Commissioner of Commercial Taxes, Calcutta (North). The said Assistant Commissioner after consideration decided by his order dated 5th April, 1963, the dealer's inter-State sales to registered and unregistered dealers as Rs. 2,00,000 and Rs. 1,00,000 respectively, and thereby reduced the assessment made by the said Commercial Tax Officer. The dealer then filed a petition for revision before the Commissioner of Commercial Taxes, West Bengal, and filed an affidavit that non-appearance before the Commercial Tax Officer was due to the mistake on the part of the employee of the dealer regarding the date fixed by the said Commercial Tax Officer. The Additional Commissioner of Commercial Taxes who dealt with the case rejected the revision petition by his order dated 19th April, 1965. The dealer then filed a revision petition before the Board of Revenue, West Bengal, against the revisional order of the Additional Commissioner. The Board by its order dated 23rd August, 19(57, rejected the revision petition, but revised the order of the earlier authorities including the impugned order to make fresh assessment of tax taking the gross turnover at Rs. 3,00,000, but making no allowance for any claim for which no declaration or evidence had been produced before the Commercial Tax Officer as per law and as per rules. The Member, Board of Revenue, inter alia, observed as follows:. Moreover, it is clear from the assessment order itself that this estimate of the gross turnover has not been made on pure guess or suspicion, but the Commercial Tax Officer has made the assessment after taking into account all available material and the basis of the estimate of the gross turnover has also been stated in the order itself. The estimate of Rs. 3,00,000 as the gross turnover, therefore, stands. However, I must reiterate, as I have held before, that without the declaration forms, as laid down in the law and rules no claim can be allowed. In this connection, I may refer to this Board's decision in Case No. 233 of 1964 dated 27th April, 1967 (Regal Hosiery Mills v. State of West Bengal), wherein it was held to the effect that under Section 20(3) read with Section 20(2) of the Bengal Finance (Sales Tax) Act, 1941, this Board is empowered to enhance an assessment while revising the order of the Commissioner. Furthermore, I may refer to this Board's order dated May 25/26, 1967, in Case No. 21 of 1965 (Sunder Singh A jit Singh v. State of West Bengal), wherein it was held to the effect that it was illegal for the Commercial Tax Officer only partly to disallow claims which did not have any supporting evidence instead of disallowing them in their entirety. In this case, therefore, I must revise the orders of the assessing authorities sitting below including the assessment order, and order that the calculations for the assessment and tax be made afresh, taking the gross turnover as Rs. 3,00,000 but making no allowance for any claims for which declarations and evidence had not been produced before the Commercial Tax Officer as per law and rules.

Thereafter, the aforesaid two questions have been referred to this court upon a direction made by the court. The first question relates to the power of enhancement on revision application.

3. In view of the decision of this court in the case of Ram Kanai Jamini Ranjan Pal v. Member, Board of Revenue, West Bengal [1970] 26 S.T.C. 489, and the observations of the court at page 501, this question must be answered in the affirmative and in favour of the respondent. Counsel for the petitioner, however, contended that the Board of Revenue and the Commissioner had, under Section 20(3) of the Bengal Finance (Sales Tax) Act read with Section 9 of the Central Sales Tax Act, power to enhance suo motu but no power to enhance on an application for revision filed before him by a dealer. As mentioned hereinbefore, in view of the said decision, this contention cannot be accepted. It was then urged that this power could only be utilised in a manner which would give reasonable opportunity to the dealer. That is so indeed and Sub-section (5) of Section 20 so provides and that was one of the reasons which influenced this court in coming to the conclusion in the aforesaid case. If the grievance of the petitioner be that adequate or reasonable opportunity had not been given to the petitioner then the controversy would be different but this is not the controversy with which we are faced today in question No. (1). In the premises, question No. (1) is answered in the affirmative and in favour of the respondent.

4. So far as question No. (2) is concerned this question proceeds on the basis of a misapprehension because the question assumes that Rule 27A of the Bengal Sales Tax Rules, 1941, has been applied by the Board of Revenue in passing this order. Specifically no mention has been made of Rule 27A in the order. But our attention was drawn to Rule 11 of the Central Sales Tax (West Bengal) Rules which provides that the provisions of the Bengal Finance (Sales Tax) Act, 1941, and the Rules made thereunder including the use of forms shall apply mutatis mutandis to all proceedings or other matters incidental to the carrying out of the purpose of the Act and for which no provision has been made in these Rules. Reliance was also placed on the order of the Member, Board of Revenue, rejecting the application for revision in which the Member, Board of Revenue, had referred to the decision in the case of Kedar Nath Jute Manufacturing Co. v. Commissioner, Commercial Taxes, West Bengal [1959] 10 S.T.C. 241. It appears to us that the real grievance of the petitioner is that while considering the propriety of a best judgment assessment, the Member, Board of Revenue, had erred in disallowing the benefit for non-supply of the declaration forms. It was submitted that in fact the Member, Board of Revenue, had acted on the basis of the principles of Rule 27A of the Bengal Sales Tax Rules, 1941. It appears to us that the Member, Board of Revenue, had proceeded to examine the propriety of the best judgment assessments made by the Assistant Commissioner of Commercial Taxes. Best judgment assessment does not mean an arbitrary assessment. Even in a best judgment assessment the case of the assessee cannot be arbitrarily rejected or any tax due can be enhanced or any deduction cannot also be arbitrarily granted to a dealer. In order to allow deduction or for making an estimate for allowing deduction under the best judgment assessment there should be certain basis and what the Member, Board of Revenue, had done in this case was that he found that there was no basis for allowing deduction in the manner given by the Assistant Commissioner of Commercial Taxes and he directed to compute it afresh. We find that even if the principles behind Rule 27A of the Bengal Sales Tax Rules, 1941, had been applied in determining the propriety of the order of the Assistant Commissioner, Commercial Taxes, in the revision application there was no illegality in the order of the Member, Board of Revenue. As mentioned hereinbefore Rule 27A of the Bengal Sales Tax Rules, 1941, does not appear to have been specifically mentioned and this question does not arise really from the order of the Member, Board of Revenue. In the premises, we decline to answer this question and as we find that in effect there is no illegality in the order, we also decline to re frame the question in any manner.

5. In the premises question No. (1) is answered in the affirmative and question No. (2) is not answered because it does not arise in the facts of this case.

6. There will be no order as to costs.

S.K. Hazra, J.

I agree.


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