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TMI Blog1973 (9) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... by the prescribed authority under the Act who was previously the Assistant Superintendent of Commercial Taxes, Gaya. The holder of this office at that time was one Shri R.Y. Sinha. He examined the books of account and purjas with the assistance of Shri K.K. Sahay, Inspector, Commercial Taxes, Gaya. On the transfer of Shri R.Y. Sinha, the assessment record was taken over by Shri Ram Sundar Prasad Sinha, Superintendent of Commercial Taxes, Gaya, on 31st October, 1960. On that date he passed an order that he would like to hear the dealer on 1st December, 1960. After some adjournments the dealer appeared on 17th April, 1961. On this date the following order was passed by Shri R.S.P. Sinha: "Hazri filed today. Dealer heard. For orders on 30th April, 1961." Exhibit A to the statement of the case is the order sheet of the assessment proceeding for the period 2nd March, 1960, to 30th April, 1961, the date of the passing of the final order of assessment. The assessment order has been annexed as exhibit B to the statement of the case. A portion of the assessment order dated 30th April, 1961, has been quoted in paragraph 3 of the statement of the case. 3.. The dealer filed an appeal aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside and the case was remanded back. 5.. On being asked to state a case to this court, the Tribunal has done it and referred the question of law already stated. 6.. Mr. Lakshman Saran Sinha, the learned counsel for the commercial taxes department, endeavoured to take us through the order sheet (exhibit A), the assessment order (exhibit B) and the other orders to persuade us to hold that, in fact, the account books were examined by Shri R.S.P. Sinha, Superintendent of Commercial Taxes also. We did not feel persuaded to go into this question as, in our opinion, the ambit of the question of law referred was too narrow to permit us in this reference case to go into the question urged in the first instance on behalf of the department. If the department felt aggrieved by the finding recorded by the Tribunal against it on that question, it was necessary for the Commissioner to ask the Tribunal to state a case on a question of law in relation to that finding. It appears from the reference application, however, that no such attempt was made by the Commissioner of Commercial Taxes. Even assuming that the bald question of law which the Commissioner wanted the Tribunal to refer could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Rules are the Assistant Commissioner, the Superintendent and the Assistant Superintendent of Commercial Taxes. The prescribed authority is to give a notice to the dealer under section 16(2)(a) to attend in person or through an authorised representative on a date to be specified and to produce or cause to be produced any accounts or other evidence on which such dealer may rely in support of his return. Section 16 says: "16. Assessment of tax.-(1) If the prescribed authority is satisfied without requiring the presence of, or the production of accounts and other evidence by, the registered dealer, that the returns furnished by such dealer in respect of any period are correct and complete, the prescribed authority shall assess the amount of tax due from the dealer on the basis of such returns. (2)(a) If the prescribed authority is not satisfied, without requiring the presence of, or the production of accounts and other evidence by, the registered dealer that the returns furnished by such dealer in respect of any period are correct and complete, the prescribed authority shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arket sale price of the goods prevailing at the time of the sale and proceed to assess the tax on such price. (7) Any assessment made or penalty imposed under this section shall be without prejudice to any action which is or may be taken under section 38." 9.. It would thus be seen that for the purpose of either passing an order under section 16(2)(b) or under section 16(3) the prescribed authority does not mean the person who may be the holder of the office of the Superintendent or the Assistant Superintendent. If the Assistant Superintendent was transferred from Gaya, then the Superintendent would be incharge of his files and would be the prescribed authority for the purpose of section 16 of the Act. There is nothing in the Act or in the Rules to indicate that the prescribed authority from start to finish for the purpose of section 16 of the Act must be the same person holding the office of the prescribed authority. 10.. Section 46 of the Act empowers the State Government to make Rules for "all matters expressly required or allowed by the Act to be prescribed and generally for carrying out the purposes of this Act and regulating the procedure to be followed, forms to be ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Inspector. Unless the dealer produces the account books and evidence and asks the prescribed authority to examine them further to contradict the report of the Inspector, there is no obligation on the prescribed authority to verify the report of the Inspector with reference to the account books and the other evidence. Ordinarily and generally, the prescribed authority is expected to do so for its own satisfaction; but it is one thing to say that it should do so and the other to say that it must do so. In the instant case, on consideration of the report of the Inspector, Shri K.K. Sahay, Shri R.S.P. Sinha did ask the dealer to produce his account books. The dealer's stand is that they were produced. The assessment order shows that many matters and materials were examined by the Superintendent of Commercial Taxes, Shri R.S.P. Sinha. In this background it is difficult to uphold the view of the Tribunal that unless it could clearly be shown that the account books were personally examined by Shri R.S.P. Sinha, his assessment order was illegal and bad in law. In my opinion, merely on that account the order could not be held to be bad and illegal. Of course, the Tribunal has not gone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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