9911796707
TMI Blog1957 (5) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.. The assessee then filed a revision petition (Exhibit D) before the Commissioner of Sales Tax, Patna Division, Patna. For the reasons explained in his order dated the 23rd May, 1952, (Exhibit E) the Com- missioner of Sales Tax, Patna Division, Patna, rejected the petition. 5.. The assessee being dissatisfied with the Commissioner's order filed a second revision petition (Exhibit F) before the Board of Revenue, Bihar. For the reasons explained in its judgment dated the 17th August, 1953, (Exhibit G) the Board rejected the petition. 6.. Being dissatisfied with the Board's order, the assessee filed a petition (Exhibit H) before the Board for making a reference to the High Court on the following questions said to be the questions of law: (1) Whether in view of the fact that the petitioner had applied for registration on 2nd January, 1948, the assessment under section 13(5) of the Bihar Sales Tax Act, 1947, by a single order covering the entire period 1st July, 1947, to 30th September, 1948, is legal and valid inasmuch as no order of assessment could have been made in the circumstances of the case under section 13(5) for the period after 2nd January, 1948. (2) Whether the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision application was filed by the assessee before the Commissioner of Sales Tax and also before the Board of Revenue, but these applications were dismissed. As directed by the High Court, the Board of Revenue has submitted a statement of the case under section 25(3) of the Bihar Sales Tax Act, 1947, upon the following question of law: "Whether in view of the fact that the petitioner had applied for registration on the 2nd January, 1948, the assessment under section 13(5) of the Bihar Sales Tax Act, 1947, is valid for the entire period commencing on the 1st July, 1947, and ending on the 30th September, 1948". On behalf of the assessee Mr. Sinha put forward the argument that an application for registration had been actually filed by the assessee on the 2nd of January, 1948, and, therefore, the proceedings taken under section 13(5) of the statute were illegal and there was no liability upon the assessee either to pay the amount taxed for the period in question or to pay the penalty. In support of his contention, learned counsel referred to section 13(5) which is in the following terms: "13 (5). If upon information which has come into his possession, the Commissioner is satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be read in the context and back- ground of section 4 which imposes the charge of sales tax. If the argument of learned counsel for the assessee with regard to the interpretation of section 13(5) is accepted, the result would be that the effect of section 4 would be completely nullified. In other words, though section 4 imposed charge of tax upon the assessee, there would be no machinery provided for the Sales Tax Department to determine that liability or to assess the tax in the hands of the unregistered dealer. Such a result could not have been in the contemplation of the Legisla- ture. In our opinion, therefore, the proper interpretation of section 13(5) is that the imposition of the penalty is subject to the condition precedent that the dealer had wilfully failed to apply for registration for the period in question. But the assessment of an unregistered dealer under section 13(5) is not subject to any such condition. The only condition for making that assessment upon an unregistered dealer under section 13(5) is that the Commissioner should be satisfied upon information which has come into his possession that the unregistered dealer has been liable to pay tax in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the amount of tax. The matter is very clearly put by Kania, J., at page 307 of the report as follows: "This contention is founded on a misunderstanding of the jurisdiction of the Income-tax Officer and the operation of the Income-tax Act. The income-tax assessment proceedings commence with the issue of a notice. The issue or receipt of a notice is not, however, the foundation of the jurisdiction of the Income-tax Officer to make the assessment or of the liability of the assessees to pay the tax. It may be urged that the issue and service of a notice under section 22(1) or (2) may affect the liability under the penal clauses which provide for failure to act as required by the notice. The jurisdiction to assess and the liability to pay the tax, however, are not conditional on the validity of the notice. Suppose a person, even before a notice is published in the papers under section 22(1), or before he receives a notice under section 22(2) of the Income-tax Act, gets a form of return from the Income-tax Officer and submits his return, it will be futile to contend that the Income-tax Officer is not entitled to assess the party or that the party is not liable to pay any tax because ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
