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TMI Blog1966 (1) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... led a return for the period mentioned above, but in the return no challans were filed and indeed on the date on which the return was filed, the last two items mentioned above had not been paid at all. Under the said Act and the Rules made thereunder, 1st March, 1950, was the date on which the return should have been filed. Therefore, the fact is that on the date that the return was filed, certain amounts of monies which were payable had not been paid, and challans had not been filed and in regard to two unpaid sums, challans could not possibly have been filed. On the 18th August, 1950, the Commercial Tax Officer issued notice under section 11(1) of the said Act, read with rule 49 of the Rules. A copy of this notice has been set out in the paper book at page 7. Thereafter, on 15th January, 1952, the assessee sought to file an amended return but nothing turns upon it. On the 4th November, 1952, the Commercial Tax Officer, after hearing the assessee and looking into the books that had been produced before him, made an assessment order. In that assessment order a penalty of Rs. 50 was imposed. Thereafter there were further proceedings in the course of the assessment which may be briefl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y return furnished by him, he may at any time before the date prescribed for the furnishing of the next return by him furnish a revised return; and if the revised return shows a greater amount of tax to be due than was shown in the original return, it shall be accompanied by a receipt showing payment in the manner provided in subsection (3) of the extra amount." 5.. The next section to be considered is section 11(1) which is in the following terms: "11. (1) If no returns are furnished by a registered or certified dealer in respect of any period by the prescribed date, or if the Commissioner is not satisfied that the returns furnished are correct and complete, the Commissioner shall, within eighteen months after the expiry of such period, proceed in such manner as may be prescribed to assess to the best of his judgment the amount of the tax due from the dealer and in making such assessment shall give the dealer a reasonable opportunity of being heard; and in the case of failure by a registered or certified dealer to submit in respect of any period a return accompanied by a receipt from a Government Treasury of the Reserve Bank of India, as required under sub-section (3) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of "no return". Simply because he had not paid part of the money, that was due and consequently could not annex the challans in respect thereof, it cannot be said that no return was filed. At the highest, it could be said that the return was incomplete. If the return was incorrect or incomplete, the assessee had a locus paenitentiae under sub-section (4) of section 10 and he could file a revised return and Mr. Mitra says that a revised return was filed although he was not sure whether it was filed in time. In any event, he argues that this being not a case of "no return", the notice issued in Form VI was entirely wrong and conferred no jurisdiction upon the Commercial Tax Officer to make a best judgment assessment. 8.. It appears that there is no decision on the point as to what is the exact meaning of the word "no return" in section 11. In my opinion, however, the legal position is quite clear. The scheme of section 10, and particularly sub-section (3), is that the assessee should file his return making his own estimate of the amount payable from him. This amount, which we may characterise as the admitted amount, must be put into a Government Treasury or the Reserve Bank as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a case, the precondition not having been satisfied, there was no return at all or, in other words, it was a case of "no return", and not merely an incomplete or incorrect return. In my opinion, subsection (4) of section 10 has nothing to do with such a contingency. The "omission" or "error" mentioned therein are omissions and errors in the body of the return, relating to its subject-matter or the figures mentioned therein. It can have nothing to do with the prepayments mentioned in sub-section (3). 10.. Coming now to section 11, it does deal with the case of "no return" as also incomplete and incorrect returns. In the case of penalty, however, the grounds on which penalty can be imposed have been clearly mentioned. If a registered dealer files a so-called return but unaccompanied by the receipt from a Government Treasury or the Reserve Bank of India, then unless he is able to satisfy the Commercial Tax Authorities that the default was due to a reasonable cause, he will be liable to payment of a penalty. 11.. In my opinion, reading all these provisions of law, it must be held that the prepayment of the admitted amount mentioned in subsection (3) of section 10 is a preconditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 34 of the Indian Income-tax Act to reopen the account and he merely made a mistake in referring to section 34 of the wrong Act, but his notice should be taken to have been issued under the correct jurisdiction, which would make his action valid and not nugatory. 14.. Coming to the facts of the instant case, we find that the Commercial Tax Officer had the power to issue notice in Form No. VI. It is said that, instead of proceeding under clause (b) of it, he chose to proceed under clause (a). This however ought not to vitiate the proceedings and under the principles enunciated above, the exercise of the power should be referred to the jurisdiction which confers validity upon the acts of the Commercial Tax Officer rather than which makes it nugatory. In other words, it should in that case be taken to be under clause (b). It will further be observed that this objection of the assessee is rather belated. This objection was not taken before the Commercial Tax Officer in the first instance. On the other hand, the books and documents were produced and the assessee got every opportunity of defending himself and putting forward his objections and it is after hearing him fully that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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