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TMI Blog1963 (9) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... g to 27th January, 1960) and Baisakh Bodi 14, 2017 S.Y. (corresponding to 24th April, 1960) and deposited the admitted amount of tax. On 7th June, 1960, the Commercial Tax Officer, Amratolla Charge, (respondent No. 3) served a notice in Form VI upon the petitioners therein stating, (i) that inasmuch as the petitioners had not furnished any return for the quarter ending Baisakh Bodi 14, 2017 S.Y. and (ii) that inasmuch as he was not satisfied that the return filed by the petitioners for the quarter ending Magh Bodi 14, 2016 S.Y. was correct and complete, he proposed to assess the petitioners under section 11(1) of the Bengal Finance (Sales Tax) Act. The petitioners, inter alia, state that in so far as the notice proceeded on the basis that the petitioners had filed no return for the quarter ending Baisakh Bodi 14, 2017, the same was incorrect and imaginative in nature. Nevertheless, proceeding on the basis of such incorrect notice the Commercial Tax Officer, Amratolla Charge (respondent No. 3), made a purported best judgment assessment on the petitioners for the two quarters abovementioned and issued a notice demanding a sum of Rs. 1,55,766-10-0 as tax. Aggrieved by the order of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument made in this connection." After the remand order by the Assistant Commissioner of Commercial Taxes, the matter did not go back to the Commercial Tax Officer, Amratolla Charge. The Commercial Tax Officer, Central Section, assumed jurisdiction in the matter of assessment after remand and, notwithstanding all objections by the petitioners, made an order, dated 30th January, 1962, assessing the petitioners to sales tax for the two quarters above-mentioned. Thereafter, he issued a notice of demand calling upon the petitioners to pay a sum of Rs. 2,20,702.40 nP. by way of sales tax. Aggrieved by the order of assessment by the Commercial Tax Officer, Central Section, the petitioners moved this Court, under Article 226 of the Constitution, praying for a writ of certiorari for the quashing of the order of assessment and for writ of mandamus on the respondent No. 1 directing him to forbear from giving effect to the assessment order and for further writ of mandamus and/or prohibition on the Commercial Tax Officer, Central Section, restraining him from assuming jurisdiction to assess the petitioners under the Bengal Finance (Sales Tax) Act and obtained this rule. The creation of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he location or the place of business of the petitioners, the appropriate Commercial Tax Officer, in relation to the petitioners, was the Commercial Tax Officer, Amratolla Charge. The petitioners had filed their returns before the said Commercial Tax Officer, and he must consider the returns himself and must not part with the same for being considered by the Commercial Tax Officer, Central Section. (iv) The Commercial Tax Officer, Amratolla Charge, had made an assessment upon the petitioners in exercise of his power under section 11(2) of the Bengal Finance (Sales Tax) Act. The petitioners filed an appeal against the order before the Assistant Commissioner of Commercial Taxes, Dharamtolla Circle. The said Assistant Commissioner set aside the assessment with direction to "the Commercial Tax Officer," meaning the Commercial Tax Officer, Amratolla Charge, to make a fresh assessment upon the petitioners. Under that order, the Commercial Tax Officer, Amratolla Charge, could make a fresh assessment upon the petitioners and not any other officer. The fresh assessment made by the Commercial Tax Officer, Central Section, was therefore bad and unworthy of being sustained. (v) The order of tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 49 is not the charging provision in the Bengal Finance (Sales Tax) Act but merely lays down the procedure of assessment. Assessment of sales tax made without service of notice in Form VI or on the basis of irregular or incomplete notice may be at best an irregularity but does not touch the jurisdiction to assess. If as a result of the irregularity an assessee is prejudiced, the assessment may be set aside on the ground of irregularity prejudicing the assessee, but an assessment does not become a void assessment because of invalidity or irregularity or absence of a notice. This was the view taken by the Federal Court in deciding a similar point under the Indian Income-tax Act in the case of Chatturam v. Commissioner of Income-tax[1974] 15 I.T.R. 302. in which Kania, J. (as he then was), observed: "The income-tax assessment proceedings commence with the issue of the 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of what ought to have been done. Nothing short of that, he contended, would constitute waiver. On the facts of the present case, this argument is untenable. After the Commercial Tax Officer, Central Section, had taken over the assessment matter, the Pleader for the assessee appeared before him and the following order was passed in the presence of the Pleader: "30. 12-1-62-Seen A.C. (D)'s final order passed in appeal setting aside assessment for two quarters ending Baisak Bodi 14, 2017 S.Y. Sri P. Das Gupta, Pleader, is present. The case is fixed for hearing on 22-1-62 at 11 a.m. and the Pleader informed." On the date fixed for hearing, Madanlal Mahawar, one of the petitioners appeared and asked for time to produce account books. That time was granted and the date of hearing was fixed on 25th January, 1962. On that date none appeared but, on 30th January, 1962, one of the petitioners again appeared before the Commercial Tax Officer, Central Section, and asked for further time. The action of the assessee implied that they intended to be heard in support of their returns and were asking for an opportunity to make their submissions by production of documentary evidence in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the area to which the case or matter relates or not, provided he is otherwise competent to deal with such case or matter in exercise or performance of the powers or duties referred to in sub-section (2). (3) ... ... ... ... Here italicised. (4) It is hereby declared that- (a) any order made by the State Government, defining the area over which any person appointed under sub-section (1) to assist the Commissioner is to exercise jurisdiction, or (b) any transfer made by the Commissioner of any case or matter from any person appointed under sub-section (1) to assist the Commissioner to any other person so appointed, or (c) any assessment made or anything done or any action taken by any person appointed under sub-section (1) to assist the Commissioner, in the exercise or performance of the powers or duties referred to in sub-section (2) in any case or matter arising within any area referred to in clause (a) or transferred to him by the Commissioner, before the commencement of the Bengal Finance (Sales Tax) (Amendment) Act, 1962, shall be deemed to be and to have always been validly made, done or taken as if that Act were in force when such order, transfer or assessment was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises as to the place of assessment, such question shall be decided after giving the assessee an opportunity to represent his views by the Commissioner or Commissioners concerned or in case of disagreement between them by the Board of Revenue. Section 5(7-A) of the Income-tax Act reads as follows: "The Commissioner of the Income-tax may transfer any case from the Income-tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income-tax Officer to another. Such transfer may be made at any stage of the proceedings and shall not render necessary the re-issue of any notice already issued by the Income-tax Officer from whom the case is transferred." In dealing with the effect of section 5(7-A) on section 64, the Supreme Court observed: "The sub-section in terms makes provisions for the transfer of a 'case'. Under the Indian Income-tax Act, 1922, a case is started when the Income-tax Officer issues a notice under section 22(2) of the Act calling upon the assessee to file his return of his total income and total world income during the previous year and then the assessee submits his return in the prescribed form. It is quite clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Commercial Taxes, Central Section. Do. Do. By order of the Governor, S.K. Mukherjee. Secretary to the Government of West Bengal." The aforesaid order, though made before the Amending Act, was adopted by section 3(4a) of the amended Act, which I have already quoted, and now Central Section has valid jurisdiction over the whole of West Bengal and must be deemed to have had similar jurisdiction throughout the period of operation of the Bengal Finance (Sales Tax) Act. It appears further that by the Notification, dated 14th June, 1954, the Commissioner delegated the jurisdiction inter alia, to assess tax or penalty to all Commercial Tax Officers. That Notification is quoted below: "In exercise of the powers conferred by section 15 of the Bengal Finance (Sales Tax) Act, 1941 (Bengal Act VI of 1941), I hereby delegate to all Commercial Tax Officers appointed to assist me under section 3(1) of the said Act, read with rule 1(2)(f) of the Bengal Sales Tax Rules framed thereunder, the power under the different sections of the Act specified below to be exercised in respect of dealers within their jurisdiction: Serial Section Description of power delegated No. ...... ...... ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Section under the Commercial Taxes Directorate, West Bengal, for taking necessary action under the aforesaid Acts." In the case of the Agency Sales Private Ltd. v. Commercial Tax Officer, Amratolla Charge (Civil Rule No. 4077 of 1960 unreported) P.B. Mukharji, J., upheld an order of transfer of files of an assessee from the Commercial Tax Officer, Amratolla Charge, to the Commercial Tax Officer, Central Section, because he found the order of transfer made by the Commissioner cured all defects. I have already held that it was not necessary for the Commissioner of Commercial Taxes to make an order of transfer to the Commercial Tax Officer, Central Section, in this instant case, because the Commercial Tax Officer, Central Section, did possess the jurisdiction by virtue of delegation of authorities already made to him to assess the petitioners. Even then, if the Commissioner was required to make an order, there is the order which I have already set out above. I, therefore, do not find much substance in the criticism advanced by Mr. Roy that the ad hoc assumption of jurisdiction by the Commercial Tax Officer, Central Section, was bad and without jurisdiction. Mr. Roy argued, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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