9911796707
TMI Blog1962 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the prescribed time and also deposited the amount due as required by section 10 of the Act. The total amount of tax paid was Rs. 12,074-82 nP. on a gross turnover of Rs. 16,14,522-99 nP. On 12th July, 1960, Shri Vijay Kumar appeared before the Assessing Authority when notice in Form S.T. XIV (annexure "A"), was served on him. The petitioner was, accordingly, required to produce the account books for 1957-58, the date being 4th August, 1960. The case was adjourned from time to time and the books, according to the petitioner's averment, were seen up to 5th October, 1961. Sometime in May, 1961, a notice was received from respondent No. 1, Assessing Authority, requiring the petitioner to attend his office on 29th May, 1961, with account books for different years including the year 1957-58. This notice is annexed to the petition as annexure "B". On 20th November, 1961, respondent No. 1 is stated to have made best judgment assessment at a figure of gross turnover of Rs. 22,85,435-35 nP. The assessment order is annexure "C" to the petition. Against the assessment order, the petitioner preferred an appeal, but it is averred in paragraph 5 of the petition that "this appeal is not ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it on the petitioner's business premises. In response to this notice, however, Shri Vijay Kumar appeared before the Assessing Authority on 12th July, 1960, but he was required to appear again on 4th August, 1960. The Assessing Authority states to have received information that the petitioner-firm was indulging in evasion of sales tax by maintaining duplicate set of accounts with the result that the authority took into its possession the petitioner's account books and examined them from day to day in the presence of the firm's representative. The petitioner was asked to substantiate the various deductions claimed as sales to re istered dealers, exports outside Punjab and sales of tax-free goods, and for this purpose the petitioner was given various opportunities to adduce evidence. It is expressly denied in paragraph 4 that the assessment framed is a best judgment assessment as contemplated by section 11(4). The Assessing Authority, according to this reply, computed the gross turnover from the day books which were said to be genuinely maintained by the petitioner-firm and the assessment order was passed after taking into consideration the evidence produced by the petitioner-firm and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment assessment only when he makes up his mind not to make the assessment strictly on the basis of the return. In other words, the moment the authority disbelieves the return or the assessee's books and decides not to use the return to be the sole basis for assessment, it is then and then alone that he should under the law be deemed to proceed to assess to the best of his judgment. Explaining this contention, the learned counsel has submitted, to reproduce his own words, "that the authority always makes a note on the record that the assessee is delaying or dilly-dallying and that it would thencefrom proceed to make best judgment assessment". It is such a note which, according to the counsel, is the determining factor for deciding whether or not the Assessing Authority has in fact proceeded to assess to the best of his judgment. Shri Bhagirath Das has also submitted that no fresh notice is necessary for best judgment assessment, and demanding from the assessee production of books and other evidence is also, in law, quite consistent both with the intention of the Assessing Authority to assess on the basis of the return and on best judgment basis. The counsel has as a matter of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary in the present proceedings to express any opinion on these arguments because the question whether or not the impugned assessment is best judgment assessment must, on the contention of the petitioner's counsel himself, depend on the facts and circumstances of each case, and, therefore, must, in the fitness of things, be determined by the appellate authority. The case in hand is not one of those clear-cut cases, in which it is possible to find that the impugned assessment is outside the statute and without the authority of law, justifying challenge under Article 226 of the Constitution. The ordinary remedy provided by statute is in the present case both adequate convenient and effective. Merely because the appellant has to deposit the tax in accordance with law does not, in my opinion, make the remedy illusory or ineffective, for, it is not the petitioner's case that he is not financially in a position to deposit the amount. In this connection, it may in passing be observed that the procedural measures for collecting or realising taxes assessed call for a somewhat liberal construction tending to facilitate the object, particularly in a welfare State where it operates benefici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich would appear to me to be somewhat inconsistent with the final stand taken up by him at the Bar. It was contended that according to the Supreme Court decision in Madan Lal Arora v. Excise and Taxation Officer[1961] 12 S.T.C. 387; A.I.R. 1961 S.C. 1565., it is the date of the assessment order on which the Assessing Authority should be deemed to "proceed to assess to the best of his judgment" and, therefore, if the date of the assessment order is more than three years after the expiry of the period of return it must on this short ground be quashed as wholly without juisdiction and outside the Act. The respondents have, however, controverted this submission according to whom the Supreme Court judgment does not lay down that the Assessing Authority should be deemed to proceed to assess to the best of his judgment on the date when he actually passes the assessment order. According to the respondents, the very opening paragraph of the Supreme Court judgment suggests that no such rule of law was intended to be laid down. It is only the notice dated 18th August, 1959, which, according to the judgment itself, stated that the case would be decided "on best judgment assessment basis" and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this point, as on the facts and circumstances I am unable to find any cogent reason or any special feature why the petitioner should not pursue the ordinary remedy of appeal etc. under the Since reported at [1963] 14 S.T.C. 311. Sales Tax Act and why this Court should exercise its extraordinary discretionary power of a high prerogative writ for vitiating the assessment order. No hardship in this case has been suggested by pursuing the normal statutory course. For the reasons foregoing, this petition fails and is dismissed with costs. C.W. No. 1473 of 1961. Coming now to Civil Writ No. 1473 of 1961, Om Parkash, the petitioner claims to be a partner of the firm Des Raj Om Parkash, Mandi Fentonganj, Jullundur City, which used to carry on business of selling soap, matches and kerosene oil. This firm is stated to have started in 1952 and closed on 28th October, 1954, after about two years of its start. It had a Registration Certificate No. JUL-III-7382 under the Punjab General Sales Tax Act but the same is alleged to have been returned to the Excise and Taxation Officer on 29th October, 1954. Since such return, it is alleged that no business or dealing in the goods covered by that cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the service of the notices. On 7th January, 1961, the petitioner was served with a notice asking him to appear before the Assessing Authority for the aforesaid four assessment years on 12th October, 1961, but the case was adjourned to 4th November, 1961. Mere surrender of the registration certificate, according to the written statement, does not mean its cancellation under the provisions of law, and the petitioner's liability to pay the sales tax remains in force so long as his certificate is not actually cancelled by the competent authority. In the reply, it is also averred that the partners of a firm are jointly and severally responsible in law for payment of tax etc. It is finally pleaded that adequate and efficacious legal remedies are available to the petitioner if he feels aggrieved by any order of the Assessing Authority and that this Court should not allow the present petitioner to invoke the extraordinary writ jurisdiction of this Court at this stage. Now the notice dated 4th October, 1961, (annexure "B"), which is challenged in the present proceedings is merely a memorandum informing the assessee that 12th October, 1961, has been fixed as the next date for assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
