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TMI Blog1975 (3) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... S. T. VII, referable to rule 14-A(4) of the said Rules, on 21st July, 1973, for the payment of Rs. 10,871 within 21 days of the receipt of the said notice. It is this action of the respondent that is challenged in this writ petition and similar action of the respondents in the other writ petitions. The main contention of Sri Dasaratharama Reddi, the learned counsel for the petitioner, is that while the Andhra Pradesh General Sales Tax Rules make provision for the recovery of the admitted tax, when the return filed is not accompanied by proof of payment of tax, even before the final assessment is made, the Central Rules do not make any provision for making a best of judgment assessment and for the recovery of the tax in such circumstances. According to him, under the Central Sales Tax Rules, the best of judgment assessment can be made provisionally only where a return is not filed or the return filed is incorrect, but not where the turnover disclosed in the return is not disputed or the return is not accompanied by proof of payment of tax. Under the A. P. General Sales Tax Rules every dealer is under an obligation to submit a return of the turnover under rule 8 or 9 within 30 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder the tax or taxes payable for all such months and serve upon the dealer a notice in form B-2 and the dealer shall pay the sum demanded within the time and in the manner specified in the notice: Provided that where the returns submitted by a dealer include the turnover or any of the particulars thereof which would not have been disclosed but for an inspection of accounts, registers or other documents of the dealer made by an officer under the Act before the submission of such returns, the assessing authority may after giving an opportunity to the dealer for making a representation in this behalf, treat such returns to be incorrect or incomplete returns and proceed to take action on that basis." At the close of the year, the assessing authority may finally assess in a single order on the basis of the returns filed. He is also empowered to make an assessment to the best of his judgment finally at the end of the year and proceed to recover the tax. Under the Central Sales Tax Rules, however, an obligation is imposed by rule 14-A(1) upon the dealer to submit monthly returns of the turnover and, in certain cases, at the end of each quarter, on or before the 25th of the month fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of final assessment of accounts for the year to which the transactions relate, whichever is earlier; (ii) Provided further that where the declarations in form C or the certificates in form D are not submitted within the time specified in proviso (i), the Commercial Tax Officer of the area may, in deserving cases, condone the delay in filing of the declarations in form C or the certificates in form D; (iii) Provided also that in case the originals of certificates in form E-I or E-11 are not available by the date of submission of the return, the dealer shall submit them to the assessing authority concerned not later than four months from the due date of submission of the return or the date of final assessment of accounts for the year to which the transactions relate, whichever is earlier. (2) If at any time a dealer discontinues or sells or otherwise disposes of the whole of the business carried on by him during the course of the year, he shall submit to the assessing authority concerned within thirty days of such discontinuance a return in form C. S. T. VI in the manner prescribed in sub-rule (1) for the month in which his business was discontinued. (3) The return in form C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), (2) and (4) of the A.P. Sales Tax Rules and rule 14-A(1), (3) and (4) of the Central Sales Tax Rules would disclose that while under both the Rules, the monthly return has to be accompanied by a receipt from a Government treasury or a crossed cheque in favour of the assessing authority for the full amount of tax payable for the month to which the return relates and the return so filed shall be provisionally accepted, subject to the provisions of sub-rule (4) thereof, under the A. P. Rules, express provision has been made for making the best of judgment assessment where the return is not accompanied by the said receipt and no specific provision is made under sub-rule (4) of the Central Sales Tax Rules. According to Mr. Dasaratharama Reddi, this makes all the difference and the assessing authority is precluded from making a best of judgment assessment under the Central Sales Tax Rules, while, according to the learned Government Pleader such a return is an incomplete return and no return at all in the eye of law and, consequently, the assessing authority is within his powers in making an assessment to the best of his judgment. A close reading of rule 14-A would make it clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he total tax paid, if any, by means of a treasury challan, crossed cheque, M.O. and the balance due or excess paid, if any. The dealer is required to verify the return that the information furnished therein is true to the best of his knowledge and belief. Thus, the evidence of payment of tax payable as per the turnover disclosed in the said monthly return is not a document unconnected with, or independent of, the return but is part and parcel of the return itself. Just as a return unaccompanied by declarations in form C and certificates in forms D and E-I and E-II would be an incomplete return, a return unaccompanied by a receipt from a Government treasury or a crossed cheque in favour of the assessing authority for the full amount of the tax payable for the month would also be an incomplete return, though not an incorrect return. Sub-rule (3) of rule 14-A empowers the assessing authority to provisionally accept a return so filed, subject to the provisions of sub-rule (4) thereof. Sub-rule (4) itself authorises the assessing authority to make an assessment to the best of his judgment where the return submitted by the dealer appears to be incorrect or incomplete. If, as already he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank showing the payment of such amount." Of course, rule 14-A does not in so many terms prescribe that the amount of admitted tax shall be paid by the dealer before furnishing the return, but it does state that the return shall be accompanied by a receipt from a Government treasury or a crossed cheque in favour of the assessing authority for the full amount of the tax. Such a receipt would be issued or crossed cheque may be issued only after the necessary amount is deposited in the concerned treasury or the bank and when such receipt or cheque is required to be submitted along with the return, it naturally follows that the amount should have already been paid towards the admitted tax payable by the dealer. The difference in the language of the two provisions is of no consequence. The failure to submit the receipt or the cheque as required by rule 14-A also therefore renders the return an incomplete one. Mr. Dasaratharama Reddi, however, contends that a specific provision in this behalf is made under sub-rule (4) of rule 17 of the A.P. General Sales Tax Rules, which are framed by the Andhra Pradesh Government in exercise of the statutory powers vested in it under the A.P. Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment to the best of his judgment in the event of the dealer not submitting a return or submitting an incorrect or incomplete return itself enjoins upon the assessing authority to give a dealer an opportunity to prove the correctness and completeness of the return where one has been submitted and only then determine the turnover to the best of his judgment and provisionally assess the tax payable. Failure to give such an opportunity would render the assessment not only contrary to the express provision contained in sub-rule (4) of rule 14-A but also violates the principles of natural justice. It was, however, contended by the learned Government Pleader that where the dealer voluntarily submits a return disclosing a certain turnover, in demanding the admitted tax payable as per the turnover, the dealer cannot complain of any prejudice and any notice issued to him in this behalf would be an empty formality. It is not for this court to determine whether, in a particular set of circumstances, notice should or should not be given. Where the statute required notice to be given, failure to give notice would render the assessment of tax and the collection thereof illegal. The rule-making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplete. The dealer may also show that the turnover arrived at by the assessing authority is not correct and that a lesser tax will be payable by him. Failure to give notice is not merely a matter of causing prejudice to the dealer but also affecting the jurisdiction of the assessing authority to proceed to make best of judgment assessment provisionally under sub-rule (4) of rule 14-A. No notice has admittedly been given to the dealer in any of these cases before issuing the impugned notice in form C.S.T. VII. The turnover has thus been provisionally determined to the best of his judgment by the respondent in contravention of subrule (4) of rule 14-A. In this view of mine, it is not necessary for me to go into the question whether the assessing authority is competent to accept the figures of turnover mentioned in the return while rejecting the return or treating the return as incomplete and proceed to make the best of judgment assessment. Inasmuch as no opportunity was given to the petitioner the impugned notice is quashed and the writ petitions are allowed accordingly, but in the circumstances of the case, without costs. Advocate's fee Rs. 100 in each case. This will, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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