9911796707
TMI Blog1964 (11) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... or assessing the petitioner-firm, in accordance with notification No. 1344-E & T dated 30th March, 1949, entertained the returns. For the year 1960-61 also, the Assessing Authority, Amritsar, had assessed the petitioner in February, 1962, and the tax assessed was paid. On 19th February, 1964, the petitioner received two notices for the year ending 31st March, 1962 (one under the Act) and the other under the Central Sales Tax Act (hereinafter called the Central Act) and two similar notices for the year ending 31st March, 1963. These notices were issued by the Assessing Authority, Punjab, Chandigarh, requiring the petitioner-firm to appear before it on 3rd March, 1964. It is this notice which is assailed in the present proceedings on the ground that the assessment proceedings having commenced before the Assessing Authority, Amritsar, there is no law providing for transfer of pending assessment proceedings to another Assessing Authority, and indeed the contention goes to the extent of urging that in the case in hand there is no order of transfer in fact passed by any competent authority. The Assessing Authority, Chandigarh, according to the contention, has no jurisdiction to proceed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to the case in hand. The Assessing Authority under section 2(a) "means any person authorised by the State Government to make any assessment under this Act." Under section 3, the State Government is empowered, for carrying out the purposes of the Act, to appoint a person to be Excise and Taxation Commissioner and such other persons to assist him as it thinks fit, and the persons so appointed are empowered to exercise such powers as may be conferred, and perform such duties as may be required, by or under the Act. Section 21 confers revisional power on the Commissioner which may also be exercised suo motu for the purpose of satisfying himself as to the legality or propriety of proceedings whether pending or terminated or any order made therein and the revising authority is empowered to pass such orders in relation thereto as it may think fit. The Financial Commissioner is by subsection (3) of this section given revisional power over the orders passed by the Commissioner on revision. No order of revision may, however, be passed adversely affecting the rights of any assessee or other person on whom an obligation is imposed on revision without giving the person affected a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 in respect of a dealer, he has to serve a notice in Form S.T.XIV upon him- (a) calling upon him to produce his books of account and other documents, which such authority wishes to examine, together with any objection which the dealer may wish to prefer and any evidence which he may wish to produce in support thereof; and (b) stating the period or the return period or periods in respect of which assessment is proposed; and he has to fix a date, ordinarily not less than 10 days after the date of the service of the notice for producing such accounts and documents and for considering any objection which the dealer may prefer. Rule 38(1) empowers an Excise and Taxation Officer and an Assistant Excise and Taxation Officer in charge of a district to exercise the powers of Assessing Authority in relation to all dealers within his territorial jurisdiction and sub-rule (2) empowers an Assistant Excise and Taxation Officer, when appointed to assist an Excise and Taxation Officer, to exercise the powers of Assessing Authority in relation to a dealer within his territorial jurisdiction, whose gross turnover does not exceed Rs. 5,00,000. Rule 39 empowers an Excise and Taxation Officer, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding proceedings cannot be transferred from the file of one Assessing Authority to that of another. Support for his contention has been sought by the counsel from three decisions of the Supreme Court. Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur(1) has been relied upon for the proposition that assessment proceedings commence on the submission of the return and they continue till (1) [1963] 14 S.T.C. 976; A.I.R. 1964 S.C. 766. final order is passed. Bidi Supply Co. v. The Union of India(1) and Panna Lal Binjraj v. Union of India(2) have been relied upon by way of analogy in support of the submission that transfer of assessment proceedings prejudicially affects the dealer and, therefore, an arbitrary order of transfer without affording an opportunity to the dealer to show cause against it is liable to be struck down. These two cases are concerned with sections 5(7A) and 64 of the Indian Income-tax Act. In Bidi Supply Co.'s case(1) the majority of the Judges constituting the Bench left the question of the vires of section 5(7A) open, but, while striking down the impugned omnibus order of transfer in that case, observed that the Commissioner of Income-tax or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the passage at page 276 of the majority judgment in Bidi Supply Co. v. The Union of India(1) this Court regarded the benefit conferred on the assessee by these provisions of section 64(1) and (2) of the Act as a right and it is too late in the day for us to say that no such right to be assessed by the Income-tax Officer of the particular area where he resides or carries on his business is conferred on the assessee. This right, however, according to the authorities above referred to, is hedged in with the limitation that it has to yield to the exigencies of tax collection." 9.. The Commissioner of Income-tax and the Central Board of Revenue, the highest Income-tax Authorities under the Act, are according to this decision empowered to determine the question whether a particular Income-tax Officer should assess the case of a particular assessee on considering both the convenience of the assessee and the exigencies of tax collection according to their calculation. It is further observed that the infringement of the right to be assessed at the assessee's place of residence or business by an order of transfer under section 5(7A) of the Act is not a material infringement but mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not disputed before us that there is already in existence an appropriate Assessing Authority functioning at Amritsar as per notification of 1949 (Annexure "A " to the writ petition) with whom the return for the assessment periods in question have been duly filed by the petitioner and taxes according to the petitioner's own estimates have been paid; indeed that Assessing Authority was already seized of the present assessment proceedings when suddenly the respondent called upon the petitioner to appear before him with the relevant books of account etc. The two Assessing Authorities mentioned above, it appears, possess co-ordinate jurisdiction and what is impressed upon us is that there is no law under which these two authorities can concurrently be seized of the same assessment proceedings, one sitting at Amritsar and the other at Chandigarh empowered to call upon the petitioner indiscriminately to appear before one or the other in respect of the same assessment. It is contended that if this were permissible then after the petitioner's appearance before the respondent in pursuance of the impugned notices the next appearance of the petitioner might well be required before the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler whose place of business is at Amritsar. We do not mean, and of course we do not hold, that an assessment made by the respondent in respect of a dealer whose place of business is at Amritsar would be open to be struck down as invalid for want of inherent jurisdiction, and this, not even if the assessment proceedings had properly been commenced before the Assessing Authority functioning at Amritsar, nor do we hold that an irregular manner of seizing of an assessment proceeding would by itself attract jurisdictional infirmity necessarily vitiating a final assessment order. All that we hold in the instant case is that without a proper order transferring assessment proceedings completely from the file of the appropriate Assessing Authority actually seized of the present assessment proceedings at Amritsar, to the record of the respondent at Chandigarh, on a proper consideration of both the exigencies of tax collection and inconvenience to be caused to the assessee, the respondent's action is operating to the serious prejudice of the petitioner's rights, and the respondent should be restrained from so acting. In our opinion there should be a proper precise lawful order, transferring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer like the Commissioner under rule 69, it is in our opinion hedged in by the consideration of exigencies of tax collection and the convenience of the dealer and so cannot be considered to be arbitrary, naked, unfettered or uncontrolled so as to enable the Commissioner arbitrarily to pick and choose assessees subjecting them to discriminatory treatment. The exercise of this discretionary power is sufficiently guided and controlled by the statutory purpose to be achieved by the statute, viz., the convenient and efficient assessment and collection of the tax, of course consistent with the reasonable convenience of the particular dealer. Its abuse and misuse in a given case can be set right at the instance of the aggrieved party in appropriate proceedings, but the discretion can by no means be held to be violative of Article 14 of the Constitution, as it has at one stage been sought to be argued. It must be repeated that there is no fundamental right in an assessee to be assessed in a particular area or locality and the argument of inconvenience is also inconclusive. 15.. For the foregoing reasons we are constrained to allow this petition and quash the impugned notices. it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... One additional factor to which reference has been made on behalf of the dealer is that notice in this case has been given before the expiry of the year and this objection, it is urged, is concluded in favour of the petitioner by a Bench decision of this Court in Messrs Mansa Ram Sushil Kumar v. Assessing Authority, Ludhiana, Civil Writ No. 229 of 1963.* This point does not seem to be raised in the petition and, therefore, it is unnecessary to advert to it. However, for the reasons given by us while dealing with Civil Writ No. 382 of 1964 this writ petition as conceded by the respondent must also succeed and allowing the same, we quash the notice issued by the respondent, leaving it, however, open to the authorities concerned to pass suitable orders of transfer and deal with the petitioner's case in accordance with law and in the light of the observations made above. In this case also there will be no order as to costs. Civil Writ No. 273 of 1964.-In Civil Writ No. 273 of 1964, notices have been issued by the respondents from Chandigarh in regard to three years, assessment proceedings in respect of which were also pending with the appropriate Assessing Authority at Amritsar. It is c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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