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TMI Blog1952 (1) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... not stated in the assessment order) by the Sales Tax Officer, Darbhanga, by his order dated 3rd September, 1948, (Exhibit A). The assessee then filed on 4th October, 1948, an appeal before the Commis- sioner of the Tirhut Division (Exhibit B) who, by his order dated 5th April, 1949, (Exhibit C) ordered re-examination of deductions permissible under the rules and dismissed the appeal. The assessee then filed on 30th April, 1949, a revision petition before the Board of Revenue (Exhibit D) against the order of the learned Commissioner, Tirhut Division. The Board by its order dated 11th July, 1949, (Exhibit E) allowed the petition in part and ordered to assess the gross turnover at Rs. 3 lakhs. The assessee then filed two petitions (Exhibits F G) on 5th October, 1949, and 8th October, 1949, before the Board of Revenue, one for reviewing the order already passed on 11th July, 1949, and the other for reference to the High Court on the following seven questions of law: I. Whether the Member, Board of Revenue, having held that the petitioner was entitled to file the return for the quarter ending 30th June, 1948, up to 31st July, 1948, and that the Sales Tax Officer had no juris- dicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section of the Bihar Sales Tax Act, 1947. So far as the 1st question is concerned the Board does not think it advisable to remand the case for further investigation from the stage on which the notice had to be issued, as a return has been filed in time, and the available registers have been examined. On the 2nd point it appears to the Board that the dealer was entitled to file his return on any day up to 31st July, 1948, and the Sales Tax Officer could not take any exception and also that the Sales Tax Officer should have issued notice under Section 13(2) but in the circumstances of the case the Sales Tax Officer had no other alternative but to assess him to the best of his judgment. It is also to be noted that an assessment under Section 13(2)(c) need not necessarily be according to the return. R. Prasad and T.R. Baijaj, for the assessee. Government Pleader, for the State. JUDGMENT. RAMASWAMI, J.-This case is stated by the Board of Revenue under Section 25(3) of the Bihar Sales Tax Act, 1947. The petitioner Harmukh Rai Jairam Das was assessed by the Sales Tax Officer of Darbhanga for the quarter ending 30th June, 1948, to sales tax amounting to Rs. 7,656-4-0. The assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument that the Sales Tax Officer had no jurisdiction to make assessment under Section 13(2)(b) since notice under Section 13(2) was not admittedly issued. Learned counsel pointed out that Section 13(2)(a) requires that the Commissioner if not satisfied that the return furnished was correct and complete shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a place to be specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns. Section 13(2)(b) states that "on the day specified in the notice or as soon afterwards as may be, the Commissioner after hearing such evidence as the dealer may produce and such other evidence as the Commissioner may require on specified points, shall assess the amount of tax due from the dealer". It was maintained on behalf of the assessee that the requirements of Section 13(2)(a) and Section 13(2)(b) were imperative and the Sales Tax Officer had no jurisdiction to assess the tax unless the condition precedent, viz., the issue of the notice under Section 13(2)(a), was satis- fied. In my opinion the argument is not correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Prasad referred to Nirmal Kumar Singh Nowlaksha v. Secretary of State(3) in which the question was whether non-compliance with the provisions of sub-sec- tion (2) of Section 23 would invalidate an assessment. It was found in that case that the return under Section 22 was examined in the presence of the assessee's Gomashtas who were fully aware of all the (1) [1947] 15 I.T.R. 302. (3) (1925) A.I.R. 1925 Cal. 890. (2) [1951] 19 I.T.R. 476. matters in the return which were questioned by the Income-tax Officer but no application was made by them to adduce any further evidence, oral or documentary, with regard to the disputed item. It was held by Greaves, J., that under the circumstances the notice under Section 23(2) should be held to have been waived on behalf of the assessee. Mukherji, J., who was the other member of the Bench, was of opinion that the notice had not been waived and since non-compliance by the Income-tax Officer of the provisions of sub-section (2) of Sec- tion 23 had prejudiced the assessee, the assessment made was not valid. The case is therefore for authority on the proposition that in the absence of a notice under Section 23(2) the Sales Tax Officer has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Officer had paid surprise visit to the shop on 1st July, 1948, and required the assessee to submit return though under Rule 19(1) the quarterly return was not due till 1st August, 1948. On 20th July, 1948, the assessee made the quarterly return. The Board of Revenue has said that the failure to issue notice under Section 13(2) caused no prejudice to the assessee since he appear- ed before the Sales Tax Authorities on 24th July, 1948, and on subse- quent dates to explain his account. But the resolution of the Board dated 11th July, 1949, indicated that the assessee explained the accounts of the previous three quarters and not the accounts of the quarter ending 30th June, 1948, assessment for which period is disputed in the present case. Since there is no material on the record to show that the assessee had opportunity of producing account books and other papers for the period in question it must be held that the failure to issue notice has in the circumstances of the present case caused prejudice to the assessee. It is necessary to add that the Sales Tax Officer had wrongly thought that the amount of Rs. 1,349 which was not entered in the pucca rokar was suspicious. On thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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