1989 (6) TMI 278 - AT - VAT and Sales Tax

Summary

Issues Involved:
1. Legality of ex parte assessment orders.
2. Levy of purchase tax under section 4(6) of the Bengal Finance (Sales Tax) Act, 1941 (BFST Act).
3. Violation of principles of natural justice.
4. Competence of the State Legislature to levy purchase tax.
5. Procedural defects in service of notices.

Detailed Analysis:

1. Legality of Ex Parte Assessment Orders:
The applicants challenged ex parte assessment orders for the periods ending July 31, 1978, July 31, 1979, and July 31, 1980. The Commercial Tax Officer completed the assessments ex parte due to non-appearance of the applicants and failure to produce necessary documents despite multiple adjournments. The applicants argued that they were not given a reasonable opportunity to be heard, thus violating principles of natural justice.

2. Levy of Purchase Tax Under Section 4(6) of the BFST Act:
The applicants contended that they were not liable to pay purchase tax under section 4(6) as they were not liable under sections 4(1), 4(2), 4(4), or 8(3) of the BFST Act. The Tribunal examined section 4(6) and concluded that liability for purchase tax arises if the dealer is registered and liable under the specified sections, regardless of whether any other tax is payable. The Tribunal found that the applicants were registered and hence liable for purchase tax even though their sales tax liability was nil due to exemptions.

3. Violation of Principles of Natural Justice:
The applicants argued that the assessments were arbitrary and capricious. The Tribunal reviewed the principles of best judgment assessment, emphasizing that the estimate must be based on some evidence or material and not mere suspicion. For RN-2 of 1989, the Tribunal found the assessment reasonable and not arbitrary. However, for RN-20 of 1989 and RN-105 of 1989, procedural defects in the service of notices were identified, impacting the fairness of the proceedings.

4. Competence of the State Legislature to Levy Purchase Tax:
Although the applicants initially challenged the vires of section 4(6) of the BFST Act and the competence of the State Legislature to enact such a provision, these points were not pressed during the hearing.

5. Procedural Defects in Service of Notices:
The Tribunal found procedural defects in the service of notices for RN-20 of 1989 and RN-105 of 1989. The notices were not served in compliance with rule 84 of the Bengal Sales Tax Rules, 1941. The Tribunal emphasized that proper service of notice is crucial for fair proceedings. Consequently, these cases were remitted back for fresh service of notices and subsequent proceedings.

Judgments:
1. RN-2 of 1989: The case was dismissed as the Tribunal found no procedural defects and deemed the assessment reasonable.
2. RN-20 of 1989: The case was remitted back to the appellate authority for fresh service of show cause notice and hearing on all points, including limitation.
3. RN-105 of 1989: The case was remitted back to the assessing authority for fresh service of demand notice in form VII.

Conclusion:
The Tribunal dismissed RN-2 of 1989 but allowed RN-20 of 1989 and RN-105 of 1989 in part, subject to the payment of exemplary costs. The cases were disposed of with specific directions for fresh service of notices and subsequent proceedings in compliance with legal requirements.