1955 (2) TMI 4 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Legality of the assessment for want of proper and valid notice.
2. Liability of the assessee for registration as a dealer under the Bihar Sales Tax Act, 1947.
3. Legality and jurisdiction of the imposition of penalty under section 13(5) of the Bihar Sales Tax Act, 1947.

Detailed Analysis:

Issue 1: Legality of the Assessment for Want of Proper and Valid Notice
The assessee, an unregistered dealer, was assessed for sales tax for the years 1947-48 and 1948-49. The assessing officer issued several notices, but the assessee failed to appear or produce the required books of account. Consequently, an ex parte order was passed under section 13(5) of the Bihar Sales Tax Act, 1947. The High Court found that the assessee was given multiple opportunities to be heard, and the assessment was based on the Inspector's report, local enquiries, and papers recovered from the assessee's premises. The assessment was upheld by the Commissioner of Sales Tax and the Board of Revenue. Therefore, the assessment was deemed legally valid despite the ex parte nature of the proceedings.

Issue 2: Liability of the Assessee for Registration as a Dealer
The assessee was found to be conducting extensive business in shellac, kirilac, grains, and ghee in Bihar, thus qualifying as a dealer under the Act. Despite being liable for registration and tax payment, the assessee failed to register. The High Court confirmed that the assessee's activities fell within the scope of the Act, making him liable for registration. The Board of Revenue and the Commissioner of Sales Tax upheld this finding, affirming the legal validity of the assessment.

Issue 3: Legality and Jurisdiction of the Imposition of Penalty
The primary legal question referred to the High Court was whether the imposition of a penalty under section 13(5) of the Bihar Sales Tax Act, 1947, was legally valid. The Sales Tax Officer imposed penalties for both assessment periods, citing the assessee's wilful failure to apply for registration. The High Court examined whether proper notice and a reasonable opportunity to be heard were given to the assessee, as mandated by section 13(5).

The Court found that although several notices were issued, the final notice in Form XV did not comply with the procedural requirements, particularly the 30-day notice period and proper service as per rule 64. The notice was affixed on the factory gate at Bilaspur, which was not considered the place of business where accounts were kept. The Court concluded that the mandatory statutory provision for reasonable notice was not met, rendering the penalty imposition invalid.

Conclusion:
The High Court answered the question of law in favor of the assessee, ruling that the imposition of the penalty under section 13(5) was not legally valid due to the lack of proper notice and reasonable opportunity to be heard. The assessee was awarded costs for the reference, with a hearing fee of Rs. 250.