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TMI Blog1961 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... e sold. In the circumstances, we think that the delay should be condoned." The petitioner's case before us is that the remand in the case is incorrect, because the Taxing Officer could not have condoned the delay, and the appellate authority must decide the appeal on the records unless fresh evidence be necessary for such decision. As the Tribunal had not felt any such necessity, it was urged that in the circumstances, the order is not reasonable. In order to appreciate the point, we would narrate in detail some facts of the case. The dealer had for the period from June 1, 1957, to March 31, 1958. reported gross and net turnovers under the Central Sales Tax Act, hereafter referred to as the Act, and the total of interState sales as per the accounts was found to be Rs. 64,914-85 nP. The exemption claimed was found admissible to the extent of Rs. 7,105-45nP., and a notice was issued proposing under the Act to assess the dealer on the gross turnover of Rs. 64,914-85 nP., which included Rs. 19,272-25 nP., being the price of the goods covered by C Forms. The Taxing Officer proposed assessing on Rs. 19,272-25 nP. at the rate of one per cent. and the remaining amount of Rs. 57,809-40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h[1955] 6 S.T.C. 183., Director of Supplies and Disposals v. Board of Revenue[1960] 11 S.T.C. 589., N.N. Majumdar v. N.M. BardhanA.I.R. 1959 Cal. 219., Lakshmana Rao v. Revenue Divisional OfficerA.I.R. 1954 Mad. 942., and S.M. Transport Co. v. Bashir AhmedA.I.R. 1961 Bom. 73. The legal rules laid in these cases broadly is that an order cannot be effective against a party unless passed in the presence of the party, and they can be summarised in the words of Sinha, J., in N.N. Majumdar's case(4) to be the following: "(1) An order may be taken to be made on the date it came into existence, if the nature of the order is such that it is not necessary to communicate it to anyone. (2) If an order is made which affects the rights of a person, then the order must be communicated to such person in order to be complete and effective. The date of the order is the date when it is made known to the affected party. To this, however, there are certain exceptions, which are as follows: (i) Where the order is made in the presence of the party, whose right has been affected. (ii) Where notice has been given to the party affected by the order to be present at the announcement, but in spite of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, but of the order directing the dealer to give evidence in support of the case, which was admittedly served on the dealer before the assessment order, i.e., on January 27, 1959. In that order the consequence of such failure was also indicated, and it would be straining the relevant rules by holding that the Taxing Officer was bound to admit evidence after the final assessment had been made and issued to the dealer. The Tribunal may be right in holding that the right to adduce the C Forms in the case existed prior to the final assessment order, but it failed to note that the C Forms had been furnished after the final assessment had been made. The assessment rests on the service of the earlier order, (iii) Where owing to the obstruction of the party affected himself, the order cannot be communicated within a reasonable time. (iv) Where the authority making the order, in spite of reasonable efforts, has been unable to serve the order within a reasonable time or at all. In such a case, the date of making of the order is the date of the order." It is obvious that the aforesaid propositions would be of no help, where the order not communicated be consequential to and dependent on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxing Officer is not bound to adjourn cases for receiving evidence. The relevant rule reads as follows: "6. (1) Every dealer registered under section 7 of the Act and every dealer liable to pay tax under the Act shall submit a return of all his transactions, including those in the course of export of the goods out of the territory of India in Form II together with the connected declaration forms so as to reach the assessing authority on or before the 20th of each month showing the turnover for the preceding month and the amount or amounts collected by way of tax together with proof for the payment of tax due thereon under the Act. Provided that in cases of delayed receipt of declaration forms, the dealer may submit the declaration forms at any time before the assessment is made. * * * * (3) The return in Form II so filed shall, subject to the following sub-rule, be provisionally accepted. * * * * (5) After the close of the year the assessing authority shall after such scrutiny of the accounts and after such enquiry as he considers necessary satisfy himself that the return or returns filed are correct and complete and finally assess under a single order the tax or taxes p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each month on or before the 20th of the succeeding month together with the connected Declaration Forms. But that does not mean that the Sales Tax Officer has no jurisdiction to accept a return submitted after that date or a Declaration Form filed after that date. It was not contended for the Department that the Sales Tax Officer has no authority to accept a return filed after the due date. The question in such a case will be whether there was sufficient cause for the delay in making the return. The same will be the case with regard to the filing of the Declaration Form also. Even according to the Sales Tax Officer he granted some time to the appellant to produce fresh Declaration Forms. He did not, however, post the case to a particular date for the production of fresh Declaration Forms. As soon as the appellant was informed by the Sales Tax Officer that the Forms produced by him were defective, he wrote to the purchasers in West Bengal for the issue of fresh Forms. They took up the position that the Declaration Forms already furnished by them were in order. That was the opinion given by their Sales Tax Officer. This naturally occasioned some correspondence and ultimately the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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