9911796707
TMI Blog1956 (2) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... as Act V of 1946, and the question which the learned judge had to consider and decide was whether the notice of reassessment with regard to escaped assessment should have been served under the old Act or under new Act. The Act of 1953 by section 48(1) deals with the repeal of the old Act, and sub-section (2) of that section provides: "Notwithstanding the repeal of the said Act and the said entries, the said repeal shall not affect or be deemed to affect- (i) any right, title, obligation or liability already acquired, accrued or incurred; (ii).............................. (iii) the recovery of any tax or penalty which may have become payable under the said Act and the said entries before the said date; and all such taxes or penalties or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery under the old Act, to show that by reason of some practical difficulty or some anomaly which might result it was not possible to use the new machinery but the old machinery had to be resorted to. The notice under the Act of 1946 is to be given under section 11A and it deals with escaped assessment. The notice under the new Act is to be given under section 15 and substantially it is in the same terms and it also is to be given with regard to escaped assessment. The Sales Tax Authorities have given the notice which is headed: "notice under section 11A of the Bombay Sales Tax Act, 1946". The contention of the petitioners was that by reason of section 48(2)(iii) the notice should have been issued under section 15 of the new Act and inasmu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal on merits. It will be noticed that the scheme of the Act of 1946 and the Act of 1953 with regard to the levying of sales tax is very different. Whereas under the Act of 1946 the only taxes that were contemplated were the general tax and the special tax as provided by section 6, under the Act of 1953 the ambit of taxation is much wider. The taxes contem- plated by the new Act are the sales tax, general sales tax, purchase tax, and tax payable on goods purchased outside the State, and there are various sections-sections 8, 9, 10 and 10C-which deal with these different taxes. The form of the notice to be issued under section 11A of the old Act and section 15 of the new Act has been respectively prescribed by the rules made under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be availed of when assessing escaped assessment under the old Act. The same is the posi- tion with regard to the assessment order itself. A form of the assess- ment order has been prescribed both under the old Act and the new Act and that form again is in line with the liability to pay tax under the old Act and under the new Act, and it is difficult to understand how the form prescribed under the new Act of the order of assessment could have been adopted when the liability upon the petitioners was to pay tax in accordance with the provisions of the old Act. It is unnecessary to consider the other provisions of the Act to which the Advocate- General drew our attention pointing out that a penalty for not making the assessment in tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of issue. But if you were to test it from the date of service, as in this case the notice was served on the 3rd March, 1955, then the notice is obviously short-dated. The Advocate-General says that if the notice has to be given according to the old form and if the notice is to be issued under section 11A, then logically it must follow that the dura- tion of the notice must be as provided by the rules framed under the old Act. In our opinion, that contention is not tenable. If we were to accept that contention, then we would be refusing to give effect to the intention of the Legislature as clearly indicated in section 48(2)(iii). The period of the notice issued to an assessee who has not paid the full tax and where there has been an esca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11A of the old Act and section 15 of the new Act are in pari materia, we must hold that the notice required either under section 11A or under section 15 is a condition precedent to the exercise of the jurisdiction by the Sales Tax Officer and that if the notice is defective the condition pre- cedent is not complied with and the Sales Tax Officer has no jurisdic- tion to assess. In this case the defect in the notice is constituted by the failure on the part of the Officer to give a notice of sufficient dura- tion. Admittedly, the notice is short, it is not of the length of duration required by the rules, and as, in our opinion, that defect is fatal not only to the validity of the notice but to the validity of the assessment itself, the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
