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Debendra Ch. Das Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberC.R. No. 6299(W) of 1974
Judge
Reported in[1978]42STC458(Cal)
AppellantDebendra Ch. Das
RespondentCommercial Tax Officer and ors.
Advocates:S. Bhattacharya, Adv.
Cases Referred(h) Ponkunnam Traders v. Additional Income
Excerpt:
- c.k. banerji, j.1. the petitioner carries on business in clothes under the name and style of m/s. kalpana dress house as the sole proprietor thereof in alipurduar in the district of jalpaiguri. the petitioner alleges that he is neither liable to pay sales tax under the bengal finance (sales tax) act, 1941, as his turnover never exceeded nor exceeds rs. 50,000 nor he is an importer of goods from one state to another so as to be liable under the central sales tax act. on 19th january, 1973, n. d. sharma, the commercial tax officer, coochbehar, respondent no. 1, made an order whereby he rejected the books of account of the petitioner for the year 1371 b. s. as not being maintained in regular course on the ground that although the petitioner claimed to have started the said business on 1st.....
Judgment:

C.K. Banerji, J.

1. The petitioner carries on business in clothes under the name and style of M/s. Kalpana Dress House as the sole proprietor thereof in Alipurduar in the district of Jalpaiguri. The petitioner alleges that he is neither liable to pay sales tax under the Bengal Finance (Sales Tax) Act, 1941, as his turnover never exceeded nor exceeds Rs. 50,000 nor he is an importer of goods from one State to another so as to be liable under the Central Sales Tax Act. On 19th January, 1973, N. D. Sharma, the Commercial Tax Officer, Coochbehar, respondent No. 1, made an order whereby he rejected the books of account of the petitioner for the year 1371 B. S. as not being maintained in regular course on the ground that although the petitioner claimed to have started the said business on 1st Baisakh, 1371 B. S., but the books for the said year showed an opening stock of goods valued at Rs. 4,785.50, which indicated that the business was older than as alleged by the petitioner. The closing stock of the said year was valued at Rs. 8,018.53. No list of opening stock or inventory of closing stock was produced. Purchases were made by the petitioner personally at Calcutta and the expenses for the same was debited in the books at Rs. 117.50. Luggage tickets could not be produced. Goods worth Rs. 1,573.25 comprising mainly of ready-made goods were purchased from Howrah Hat. The total sale was shown at Rs. 9,594.57 but no cash memos were issued and sales were recorded in a jabda by actual cash counting and no rough account or slips were maintained to record daily sales. That the jabda was written every day after close of the shop by a part-time accountant as claimed by the petitioner was rejected as there was no answer as to why the same could not be produced before the Inspector on 6th October, 1970 and for their absence at the shop on that day. There was no entry for payment of any salary to the part-time accountant and only in the books of account for 1973 B. S. such salary for the said year was recorded at Rs. 120. By the said order, respondent No. 1 held that the petitioner was liable to pay sales tax with effect from 1st Baisakh, 1372 B. S., on the grounds that the purchases having been made from Howrah Hat, large scale unvouched purchases must have been made and the business being already an old one in 1371 B. S. and the dealer, having frequently visited Calcutta to make cash purchases, the business activity of this nature presupposed a substantial quantum of sale, the shop being located in a prominent business locality and information emanating from the local people indicated that the petitioner was making profit over a lac of rupees a year which might be exaggerated or malicious, but the name was compatible with the petitioner having a good quantum of sales and having visited Calcutta for purchases of goods on six occasions during 1371 B. S., whatever small expenses might be shown in the manipulated books for such visits, not less than Rs. 250 must have been spent for each visit and in order to justify the expenses and time taken for the same, the petitioner must have made a gross profit of at least Rs. 1,500 on the goods purchased on every occasion, which brought the minimum gross profits to Rs. 9,000 in respect of the said 6 visits to Calcutta. The petitioner claimed to have 15 per cent gross profit on sales which therefore brought the sales during the said year to at least Rs. 60,000; the gross sales during the year 1371 B. S. thus exceeded Rs. 50,000 on the last day of Chaitra of 1371 B. S.

2. On the same day, i, e., 19th January, 1973, respondent No. 1 by another order initiated proceedings for assessment under Section 11(2) of the said Act against the petitioner for the period from 1st Baisakh to the last day of Chaitra, 1373 B. S. and for all subsequent periods but no such notice for the period from 1st Baisakh to 31st Chaitra, 1372 B. S., was given as the same, according to respondent No. 1, could not then be made. Thereafter respondent No. 1 issued a notice dated 22nd January, 1973, to the petitioner under Sections 11 and 14(1) of the said Act on the ground that he was satisfied on information which came into his possession that the petitioner was liable to pay tax under the said Act for the period commencing from 1st. Baisakh and ending with 1st day of Chaitra, 1373 B. S., but the petitioner failed to get himself registered and it was necessary to make an assessment under Section 11(2) of the Act in respect of the above period as well as for all subsequent periods up to 1st day of Chaitra, 1378 B. S. By the said notice the petitioner was directed to attend at Coochbehar on 20th February, 1973 and to produce or cause to be produced the accounts and the documents specified in the said notice for the purpose of such assessments together with the objections thereto, if any, that the petitioner might have and any evidence in support thereof and, failing compliance, the assessment under Section 11 of the said Act would be made to the best of his judgment by respondent No. 1 without reference to the petitioner.

3. By the said notice 18 items of documents were required to be produced by the petitioner.

4. Thereafter on 16th March, 1973, respondent No. 1 made an assessment of the petitioner under Section 11(2) of the said Act for the period from 1st Baisakh to the last day of Chaitra, 1373 B. S. The petitioner did not produce his books of account as the same were produced at the proceedings initiated by respondent No. 1 for fixation of liability of the petitioner under the Act wherein the said order dated 19th January, 1973, was made. Respondent No. 1 relying on his said order dated 19th January, 1973, held that the accounts of the petitioner for 1373 B. S. must be unreliable like those for 1371 B. S. and estimated the gross turnover for 1373 B. S. at Rs. 60,000 and the total turnover at Rs. 50,000 and assessed the tax payable by the petitioner accordingly. By the said order proceedings for assessment from the year 1374 B. S. onwards was directed to be started.

5. The petitioner having appealed against the said order dated 19th January, 1973, made by respondent No. 1, the same was set aside by the Assistant Commissioner of Commercial Taxes, respondent No. 2, by his order dated 19th December, 1973 and the matter was sent back to respondent No. 1 for fresh assessment after fixation of the liability of the petitioner to pay tax afresh.

6. Thereupon, respondent No. 1 by a notice dated 12th February, 1974, fixed 1st March, 1974, for considering the question of fixation of liability of the petitioner afresh under Section 4(2) of the said Act, calling upon the petitioner to produce all books of account, vouchers, etc., from the inception of the said business to 1374 B. S. and in default liability of the petitioner under Section 4(2) of the Act would be fixed from such date as the said respondent No. 1 might deem fit. The petitioner has alleged that he suddenly fell ill suffering from amoebic hepatitis and on 28th February, 1974, through his authorised representative, Sri A. K. Dutta, filed before respondent No. 1 an application for adjournment of the hearing fixed on 1st March, 1974, supported by a medical certificate issued by Dr. M. K. Dutta, Medical Officer, Sub-Divisional Hospital, Alipurduar.

7. On 1st March, 1974, the date fixed for hearing of the fixation of liability of the petitioner under Section 4(2) of the said Act, no one therefore appeared on behalf of the petitioner. Respondent No. 1, however, noted the said application for adjournment and the said medical certificate and observed that he had originally passed an order holding that the petitioner was liable with effect from 1st Baisakh, 1372 B. S., since set aside by respondent No. 2 with a direction to pass a fresh order and on 12th February, 1974, the petitioner was shown the said revisional order and was informed that all books of account and vouchers from the inception of the said business and up to 1374 B. S. should be produced for inspection on 1st March, 1974, making it clear that in default, the liability under Section 4(2) would be fixed with effect from such date as might be deemed fit. Respondent No. 1 therefore held that non-production of the books could not be condoned and assuming that the petitioner was sick and was advised rest, he instead of sending the medical certificate could have sent his books and records through his authorised representative, a chartered accountant, who was well-acquainted with the particular accounts and records, since he alone represented the petitioner before respondent No. 2 in the revisional case and he would have therefore represented the petitioner. Respondent No. 1 observed that in terms of his original order under Section 4(2), since set aside, the petitioner was liable to assessment under Section 11(2) of the said Act for the year 1374 B. S., which assessment was required to be completed by 14th April, 1974, in view of Section ll(2)(a) of the Act, but the petitioner was attempting to delay the final decision under Section 4(2) of the Act with the motive of frustrating the possible assessment for 1374 B. S. and rejected the application for adjournment as not having much substance. Respondent No. 1 further observed that in the revision case respondent No. 2 made a threadbare discussion of the previous order made by respondent No. 1 on 19th January, 1973 and the finding therein that the purported books of account for 1371 B. S. produced by the petitioner were not maintained in the regular course of business was upheld by respondent No. 2, the revising authority, who wanted that further enquiries would be made by respondent No. 1 as he might consider necessary to make sure of all assumptions made by him in the previous order and as the petitioner did not produce the records to prove those and further other points, therefore, the said previous assumptions made by respondent No. 1 had not been disproved by the petitioner and although this was a negative approach but, in the circumstances, it was the only possible approach. Respondent No. 1 further observed that the enquiry in respect of the petitioner was initiated on receipt of a confidential information from a source belonging to the locality which could not be disclosed and which, inter alia, was that the shop was in continued business for the last 13/14 years and the annual sale was between Rs. 1,00,000 and Rs. 1,50,000 and that the purchases were made from Calcutta in fictitious names and since the petitioner had not produced the books to rebut this information, he was therefore justified in relying on that information and even if the extent of sale as reported was exaggerated by 100 per cent, the petitioner's annual sales exceeded the taxable quantum long ago. Respondent No. 1 therefore held that the sales of the petitioner during a year exceeded Rs. 50,000 on or before 1st March, 1972 and the petitioner became liable to be taxed under Section 4(2) of the Act on or before 1st Baisakh, 1372 B. S. and this finding was in essence the same as contained in his earlier order dated 19th January, 1973 and, therefore, the assessments already initiated under Section 11(2) of the Act would be continued. Respondent No. 1 therefore directed as under : 'Simply inform by R. A. D. that by an order dated 1-3-74, I have held the dealer liable to pay tax under Section 4(2) of the B. F. (S. T.) Act, 1941, with effect from 1.1.1372 B. S.' By a notice dated 6th March, 1974, respondent No. 1, inter alia, informed the petitioner that the assessment case No. 499 of 1972/73 for the period from 1st Baisakh to the last day of Chaitra, 1373 B. S., under the said Act was fixed for hearing on 29th March, 1974 and thereby called upon the petitioner to appear with the relevant books of account and records, etc. and evidence, failing which the matter would be decided ex parte without further reference. On the same day another notice was served on the petitioner on the same terms fixing the same date for hearing of the assessment cases Nos. 526, 527, 528, 529 and 530 for the years ended on the last day of Chaitra, 1374 B. S., to the last day of Chaitra, 1378 B. S.

8. Thereupon, by a letter dated 29th March, 1974, the petitioner through his authorised representative, Sri A. K. Dutta, inter alia, challenged the said purported order dated 1st March, 1974, fixing the alleged liability of the petitioner and objected to the initiation of proceedings under Section 11(2) of ttie Act, which was rejected by respondent No. 1 on the same day, that is, 29th March, 1974. Sri A. K. Dutta, the authorised representative of the petitioner, however, refused to produce any accounts or documents on the ground that no assessment could be made. Respondent No. 1 noted that although the petitioner was warned that assessments would be made on estimate to the best of his judgment, yet the said authorised representative stuck to his point. It was further noted that the said authorised representative requested that if the assessments were made in spite of his objections then all assessments might be made by a single consolidated order for 1373 B. S. and all subsequent periods up to the last day of Chaitra, 1378 B. S., instead of making separate assessments so as to obviate the necessity of preferring large number of appeals. Acceding to the said request, respondent No. 1 on 29th March, 1974, made a consolidated order of assessment for all the years commencing from 1st Baisakh, 1373 B. S., to the last day of Chaitra, 1378 B. S. and the gross turnover for all the said years was estimated at Rs. 3,60,000 and the total turnover for the said entire period was estimated at Rs. 3,00,000 and the tax was levied on that basis. By a notice dated 29th March, 1974, the petitioner was directed to pay the amount of the tax so assessed.

9. On the above facts and circumstances, the petitioner has made this application under Article 226 of the Constitution, inter alia, challenging the order dated 19th January, 1973, the order dated 1st March, 1974 and 19th December, 1973 and the two orders both dated 29th March, 1974 and the demand notice dated 29th March, 1974. The matter was called on several times on 21st August, 1978 and although the learned Advocate for the petitioner appeared, no one appeared for the respondents. Thereupon, the matter was taken up for hearing ex parte and was heard in part and was kept part-heard with a view to give further opportunity to the respondents to appear and to oppose the application. On 22nd August, the matter appeared as a part-Jieard matter before me and after being called on several times, I took up the hearing and completed the hearing in the absence of the respondents as no one appeared for the respondents.

10. Mr. Sanjoy Bhattacharya, the learned counsel for the petitioner, contended that there was no warrant for any proceeding under Section 4(2) of the Act for fixation of liability of a dealer. Section 4(2), Mr. Bhattacharya submitted, was the charging section and not the machinery section for fixation of liability or for assessment and, therefore, the entire proceedings initiated, conducted and completed by respondent No. 1 purporting to act under Section 4(2) of the Act and purporting to fix the liability of the petitioner to be assessed under the Act, was wholly misconceived and without jurisdiction.

11. Mr. Bhattacharya next contended that a consolidated order of assessment for several years was not permissible under the scheme of the Act. Each year being a separate unit, assessment should be made for each year separately and the said consolidated order of assessment under Section 11(2) of the Act dated 29th March, 1974, as made by respondent No. 1, was contrary to the provisions of the Act, even if the same was made at the request of the petitioner or his authorised representative. The said order cannot be said to have been passed validly and lawfully. There being no estoppel against statute, no concession or admission by or on behalf of the petitioner could confer jurisdiction on respondent No. I to pass an illegal order or an order which he could not pass under the provisions of the Act.

12. The next contention of Mr. Bhattacharya was that respondent No. 1 did not make any fresh enquiry or come to any fresh findings as directed by respondent No. 2 by his revisional order dated 19th December, 1973, but proceeded on the basis of and placed reliance on, his previous order dated 19th January, 1973, purported to be made under Section 4(2) of the Act which was non est having been set aside by respondent No. 2. Respondent No. 1 sought to overreach and circumvent the order of respondent No. 2 by a cunning manoeuvre by shifting the onus on the petitioner in disproving the assumptions which respondent No. 1 had made in passing his said previous order dated 19th January, 1973, set aside by respondent No. 2. Mr. Bhattacharya submitted the facts that the said appeal or revision petition was filed by the petitioner against the said order dated 19th January, 1973 and that the petitioner had succeeded in the said appeal or revision in that the said order dated 19th January, 1973, was set aside, enraged respondent No. 1 and the order dated 29th March, 1974, was therefore passed by respondent No. 1 out of sheer vindictiveness and in a mala fide manner. Mr. Bhattacharya relied on the allegations made in paragraph 15 of the petition and contended that the allegations of vindictiveness and mala fides made by the petitioner against respondent No. 1 had not been denied by respondent No. 1 and the same should therefore be taken as admitted.

13. The last contention of Mr. Bhattacharya was that in purporting to fix the liability of the petitioner to tax under the Act, respondent No. 1 relied on certain alleged information purported to have been received by him from a source belonging to the locality, which he did not disclose to the petitioner, as recorded by him in his order dated 13th September, 1974 ; therefore, the purported assessment made by respondent No. 1 on the basis of his purported order fixing the liability of the petitioner to tax based on the said undisclosed materials or information, made the purported order of assessment, wholly null and void. In support of his contentions, Mr. Bhattacharya cited the following decisions :

(a) Sri Surajmal Jain v. Commercial Tax Officer [1973] 32 S.T.C. 601. Here Surajmal Jain, the petitioner, carried on business of buying and selling goods under the name and style of Padmah Engineering Corporation, which was a registered dealer both under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called the Bengal Act) and under the Central Sales Tax Act, 1956 (hereinafter called the Central Act). The Commercial Tax Officer made a search of the business premises of the petitioner and reported that a sister concern named Ridhakaran Surajmal functioning from the same premises was not registered as a dealer. Acting on the said report the said officer on 31st July, 1967, inter alia, held that Ridhakaran Surajmal effected inter-State sales on certain dates and was liable to pay tax from that date and directed issue of form III from 16th July, 1966, to 31st December, 1966. Thereafter by a notice dated 23rd August, 1967, issued under Section 9 of the Central Act read with Section 14(1) of the Bengal Act the petitioner was called upon to attend before the said officer on 29th September, 1967, with' accounts and documents. In the said notice it was stated that the said officer was satisfied on information which came into his possession that the petitioner was liable to pay tax under the Central Act in respect of his business of Ridhakaran Surajmal and the petitioner failed to get himself registered in respect of his said business. The petitioner not having appeared pursuant to the said notice an ex parte assessment for Rs. 5,000 was made on an estimated turnover of Rs. 50,000 for the said period. The revisional application by the petitioner under Section 9 of the Central Act read with Section 20(3) of the Bengal Act before the Assistant Commissioner of Commercial Taxes did not succeed. Thereafter the petitioner was served with a notice for imposition of penalty for non-payment of tax and ultimately a penalty of Rs. 2,000 was imposed. The petitioner appealed against the said order of penalty. Thereafter a certificate proceeding was initiated against the petitioner for recovery of the alleged tax and penalty. The petitioner came up before this Court challenging the order dated 31st July, 1967, determining his liability to pay tax and also the orders of assessment and imposition of penalty. The order dated 31st July, 1967, fixing the liability of the petitioner to pay tax was challenged inter alia on the ground that there was no provision under the Central or the Bengal Act for fixation of such liability except in a proceeding for assessment and the said order was made in violation of the principles of natural justice. On behalf of the respondents it was contended that the said order was passed under Section 6 of the Central Act and it was the practice of the sales tax department to pass such orders under the said section for fixing the liability from a particular date from which the dealer was held liable and the same was in the nature of an administrative order and did not require giving of any opportunity to the petitioner before making such order. Debiprosad Pal, J., considered the scope of Sections 6 and 9 of the Central Act and of Sections 4 and 11 of the Bengal Act and the scheme of the said Acts and observed as follows:

Having regard to the scheme of the Act, the Commercial Tax Officer, in my view, has no power to fix or determine the liability to pay sales tax by making an order under Section 6 of the Central Act or under Section 4 of the Bengal Act. That liability is created and determined by the charging section and is independent of the assessment. When a dealer is so liable to pay tax by reason of the charging section he is under an obligation to furnish a return within the prescribed date and before the prescribed authority...if no returns are furnished by a dealer within the prescribed date, a best judgment assessment can be made under Section 11(1) of the Bengal Act.... If, on the other hand, a dealer does not furnish any return at all, the Commercial Tax Officer can make an assessment to the best of his judgment under Section 11(2) of the Bengal Act after giving such dealer a reasonable opportunity of being heard.... There is no provision under the law which authorises the Commercial Tax Officer to fix and determine the liability to pay tax independent of and prior to an assessment which is made under the Act. Neither the Central Act nor the Bengal Act envisages a proceeding for determination of such liability which is ipsojure and ex hypothesi arises by reason of the charging section,... The order made by him on 31st July, 1967, fixing such liability is without any jurisdiction,(b) Sudhir Ch. Mukherjee v. Additional Commissioner, Commercial Taxes, West Bengal [1976] 37 S.T.C. 554. Here a Division Bench of this Court considered inter alia the provisions of Sections 4 and 11 of the Bengal Finance (Sales Tax) Act, 1941 and approving the decision in Surajmal Jain's case [1973] 32 S.T.C. 601 observed as follows:

On a scrutiny of the said provision it is evident that upon information received the Commissioner has to determine first that the dealer is liable to pay tax under this Act in respect of a certain period and he has failed to get himself registered or to obtain a special certificate and then the Commissioner shall proceed to assess the dealer in respect of such period and all subsequent periods after giving him a reasonable opportunity of hearing. This provision, therefore, enjoins that the liability to pay tax of a dealer from a certain date has to be fixed in a proceeding for assessment under Section 11(2) of the said Act. The determination of the liability to pay tax from a certain date under Section 4(2) of the said Act cannot be made independently of and prior to the initiation of any proceeding under Section 11(2) of the said Act. It can only be done in connection with a proceeding under Section 11(2) of the said Act and not otherwise. In other words, Section 4 of the said Act is a mere charging Section creating the liability of a dealer to pay sales tax after expiry of two months from the date when his total turnover exceeds the taxable quantum but it does not contemplate the fixation or determination of the date of commencement of the liability which can be made only in a proceeding for assessment as envisaged in Section 11(2) of the said Act.(c) Commercial Tax Officer, Central Section, West Bengal v. B. C. Nawn & Bros. Private Ltd. [1973] 31 S.T.C. 379. Here the respondent was a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 and its return period had been fixed by the assessing authority as each quarter of the 'Akshoytritia year', according to the Bengali calendar. It was liable to furnish returns within 30 days from the expiry of each such quarter, i. e., on 4th August, 15th November, 28th January and 25th April, of each English calendar year. The respondent having failed to furnish returns within the above dates in the year 1951-52, the Commercial Tax Officer issued a single notice dated 25th October, 1952, under Section 11(1) of the Act in respect of all the 4 quarters ending with 13th Baisakh, 1359 B. S. and pursuant to the said notice the respondent filed a consolidated return for the 4 quarters on 15th November, 1955, which was revised on 7th December, 1955. The Commercial Tax Officer made a consolidated order of assessment on 29th February, 1956 and the tax assessed was demanded from the respondent by a single notice of demand dated 1st March, 1956. The appeal preferred by the respondent against the said order was rejected 'on technical grounds. A Division Bench of this Court after considering the various provisions of the Act and the Rules framed thereunder observed as follows:

While the assessment therefore is annual, returns may be two-monthly, quarterly, six-monthly, as the case may be. Section 11 of the Act goes on to deal with the assessment of tax.

These are all the material provisions in the statute itself. It seems to us that the tax can only be regarded as annual and the assessment as annual though returns may be quarterly or half-yearly.

(d) An unreported decision of a single Bench of this Court in C. R. No. 2827(W) of 1973 (G. S. Bros. v. Commercial Tax Officer, Bhowanipore Charge). Here the question at issue was whether the dealer, who sold goods under hire-purchase agreements, was liable to pay sales tax in respect of hire-purchase agreements entered into with diverse parties which did not ultimately materialise in sales. The Commercial Tax Officer declined to decide the question of liability as to such hire-purchase transactions and threatened to stop issue of declaration forms to the dealer if he agitated and pressed the said question. The Commercial Tax Officer while seemingly professing not to tax the said hire-purchase transactions yet arbitrarily included them in the assessments on the ground that the dealer did not produce any statement of such transactions, although registers and other books were produced before him and on that basis determined the gross and taxable turnovers and completed the assessments. The dealer appealed against the said orders of assessment to the Assistant Commissioner of Commercial Taxes who set aside the assessments and directed the Commercial Tax Officer to make fresh assessments. The Commercial Tax Officer thereupon completed the said assessments holding that the hire-purchase transactions were sham dealings. The dealer challenged the said assessments in a writ petition before this Court and it was inter alia contended on behalf of the dealer that the Commercial Tax Officer acted mala fide. This Court found that the officer concerned had not come forward to deny the said allegation and in the affidavit-in-opposition which was made by some other person, the said allegation of mala fide was not dealt with specifically. This Court therefore held that on the facts of the case and specially in the absence of any rebuttal of the allegations made in the petition and the circumstances were such that they were conducive to the conclusion that the Commercial Tax Officer was actuated by mala fides which could not be brushed aside lightly.

(e) Lala Shri Bhagwan v. R. Chand A.I.R. 1965 S.C. 1767.Here the Supreme Court observed that authorities or bodies which are given jurisdiction by statutory provision to deal with the rights of citizens may be required by the relevant statute to act judicially in dealing with the matters entrusted to them and an obligation to act judicially may in cases be inferred from the scheme of the relevant statute and its material provisions. In such a case, it is easy to hold that the authority or body must act in accordance with the principles of natural justice before exercising its jurisdiction and powers.

(f) Ram Swamp v. Shikar Chand A.I.R. 1966 S.C. 893. Here the Supreme Court observes that if it is shown in a given case that an order has been passed without notice to the parties affected by such order it would be open to the said party to contend that an order passed in violation of the principles of natural justice is a nullity and its existence should be ignored by the civil court.

(g) Serajuddin & Co. v. State of Orissa (1974) 78 C.W.N. 61. Here pursuant to an invitation by the State of Orissa for grant of mining lease the appellant Serajuddin & Co. applied for the same and pursuant thereto the State of Orissa offered to make over possession of the lands to the appellant on certain terms and conditions which were accepted by the appellant. The State of Orissa therefore directed possession of the lands to be made over to the appellant with permission to carry on mining operation for a certain period with an assurance to renew the permission from year to year until finalisa-tion of the lease and possession was delivered to the appellant. Thereafter for 3 years the respondents took no steps for the execution of the lease in spite of requests by the appellant. On 26th July, 1958, the State sent a draft lease to the appellant and on 22nd August, 1958, the same was returned by the appellant to the Collector of Keonjhar with suggested modifications for final approval of the same. The date of the execution of the lease was fixed by the Collector which was extended from time to time, at the instance of the appellant. On 25th October, 1958, the appellant made a representation to the respondents suggesting that an additional be incorporated in the lease to safeguard certain rights of the appellant created by amendment of Rule 41(l)(ii) of the Mineral Concession Rules, 1949. In spite of several representations and reminders by the appellant, there was no response from the respondents. The respondents alleged that the appellant was in arrears in payment of royalty which was denied by the appellant. On 4th April, 1962, the respondents purported to revoke the grant of mining rights to the appellant on the ground that the appellant failed to execute the lease though called upon to do so. The appellant went up in revision before the Central Government which was dismissed. Thereupon the appellant challenged the said orders of revocation before this Court in an application under Article 226 of the Constitution. A rule nisi obtained by the appellant having been discharged at the final hearing, the appellant preferred an appeal. On the above facts a Division Bench of this Court, which heard the appeal, in dealing with the contentions of the appellant that the said revocation was in violation of the rules of natural justice and was a nullity, observed that the order of revocation purported to have been made by the State Government on 4th April, 1962, could not be upheld being a nullity as admittedly it was made in violation of the rules of natural justice and since this was a nullity the order made by the Central Government in revision even assuming that it was a revision against the order of the State Government, could be of no greater value or effectiveness inasmuch as if 'foundation of a structure is removed, the superstructure cannot stand and must collapse'.

(h) Ponkunnam Traders v. Additional Income-tax Officer, Kottayam [1972] 83 I.T.R. 508. Here in his order of assessment the Income-tax Officer stated that after rejecting the accounts of the assessee he made enquiries and was satisfied from the materials gathered by him, viz., profits made by other dealers carrying on similar businesses and from the profits disclosed by the assessee in its return in the previous year, that its profits in transactions in dry ginger was 10 per cent of the turnover and completed the assessment on the basis thereof. The assessee contended that under Section 142(3) of the Income-tax Act, 1961, it was entitled to have notice of the materials gathered by the Income-tax Officer and to have its say about the same and as no such notice was given and its explanation was not heard, the order of assessment was void to the extent objected to by the assessee. The Kerala High Court held that although the Income-tax Officer was entitled to use his knowledge of the previous return by the assessee but the same should have been put to the assessee and its explanation asked for and even if no appeal or revision had been filed by the assessee yet it was open to it to approach the High Court challenging the order of the Income-tax Officer on the ground of non-compliance with the principles of natural justice and that the same was a nullity and if the assessee had no opportunity to object to the procedure, which made the order a nullity, the fact that it did not raise objection in appeal or in revision should not be a ground for exercising the discretion of the court against the assessee.

14. The Bengal Finance (Sales Tax) Act, 1941, is a fiscal statute and it fixes a liability on the subject. The provisions of a fiscal statute have to be strictly construed and applied. With regard to the order made by the Commercial Tax Officer on 19th January, 1973, or on 1st March, 1974, fixing the liability of the petitioner to tax under Section 4(2) of the Act, respectfully following the decision of the Division Bench of this Court in Sudhir Chandra Mukherjee [1976] 37 S.T.C. 554. I hold that no proceeding under Section 4(2) of the Act could be initiated for fixation of liability to tax and the said orders made by the Commercial Tax Officer were, therefore, without jurisdiction. The orders of assessment, which were passed by the said Commercial Tax Officer on 29th March, 1974, were passed on the basis of his orders dated 19th January, 1973 and 1st March, 1974, purporting to fix the liability of the petitioner to pay tax. The said orders purporting to fix the liability of the petitioner were the foundations of the structure of taxability of the petitioner and the superstructure was the assessment order made on 29th March, 1974. Respectfully following the observations of the Division Bench of this Court in the case of Serajuddin & Co. (1974) 78 C.W.N. 61, hold that as the said orders dated 19th January, 1973 and 1st March, 1974, were passed without jurisdiction the foundations of the structure were removed and the order of assessment dated 29th March, 1974, the superstructure made thereon, cannot, therefore, stand and must collapse and the said assessment should be quashed. On the question of vindictiveness and mala fides of the said Commercial Tax Officer, the facts as noted hereinbefore would clearly go to establish that the said officer has acted rather capriciously and in a high-handed manner and the said facts might reasonably lead to the conclusion that the said order dated 1st March, 1974, purporting to fix the liability of the petitioner and the said order of assessment dated 29th March, 1974, were passed mala fide and out of vengeance and ill-will. The Commercial Tax Officer was not justified in using materials and informations received by him against the petitioner without disclosing the same to the petitioner and without giving he petitioner an opportunity to rebut the same. This was clearly in violation of the principles of natural justice and made the said orders passed by the said Commercial Tax Officer null and void.

15. Lastly, respectfully following the observations of the Division Bench of this Court in B. C. Nawn & Bros. Private Limited [1973] 31 S.T.C. 379. I hold that assessment under the Bengal Finance (Sales Tax) Act, 1941, is an annual assessment and can be made only for an annual period. The statute does not provide for one comprehensive or consolidated assessment for several years. This is clearly contrary to and in violation of the scheme and provisions of the Act. Even though such an assessment was made by the Commercial Tax Officer at the request of the authorised representative of the petitioner yet, if the same was not permissible in law, the request of the authorised representative of the petitioner would not render the same valid.

16. For all the above reasons, the rule is made absolute and since the respondents have not appeared in this rule, there will be no order as to costs.


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