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TMI Blog1976 (2) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... 950, to 31st March, 1952, and directing the assessees to attend in person or by a legal practitioner or by an agent authorised in writing at 11 a.m. on 19th April, 1956, at the place and address mentioned therein to show cause against being reassessed in respect of the escaped turnover in the aforesaid amount. The Sales Tax Officer by his letter dated 18th April, 1956, served on the assessees and purporting to be in continuation of the said notice requested the assessees to attend his office on 24th April, 1956, at 11 a.m. instead of 19th April, 1956, in terms of the said notice. From the assessment order it is clear that this was done as the day on which the assessees were required to attend, 19th April, 1956, happened to be a public holiday. From the said order it also appears that a separate notice, in form XIV, for the period from 1st April, 1951, to 31st March, 1952, was served on the assessees on 14th July, 1956, requiring the assessees to attend on 30th July, 1956. Separate proceedings have been taken pursuant to the notice served on 14th July, 1956, and we are not concerned with those proceedings or with the assessment relating to that period in this reference. The dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sales Tax Officer had no jurisdiction to proceed under section 15 of the said Act. On the basis of these conclusions the Tribunal set aside the assessment order passed by the Sales Tax Officer and confirmed by the sales tax authorities as set out earlier. Arising from the aforesaid judgment and order of the Tribunal, the following questions have been referred to us for our determination: "(1) Whether the Tribunal was justified in law in holding that the notice under section 15 of the Bombay Sales Tax Act, 1953, dated 29th March, 1956, which was admittedly served on the respondents within the prescribed period was defective and bad in law merely because by reason of the said notice the Sales Tax Officer had asked the respondents to appear before him on 19th April, 1956, which was a holiday? (2) If the answer to question No. (1) is in the affirmative, whether the defect in the said notice has been cured or remedied by the letter of the Sales Tax Officer dated 18th April, 1956, whereby the respondents were requested by the Sales Tax Officer to attend his office on 24th April, 1956, instead of 19th April, 1956, in terms of the said notice dated 29th March, 1956? (3) Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terwards as may be, the Collector shall after considering such evidence as the dealer may produce and such other evidence as the Collector may require on specified points, assess the amount of the tax due from the dealer." The first question which we propose to consider is, whether the said notice dated 29th March, 1956, was a valid notice or not. In connection with this question, certain facts have to be taken note of. By Resolution No. P. 13 dated 29th November, 1949, passed in the Political and Services Department of the then Government of Bombay it was, inter alia, provided that subject to provision being made for urgent work, all offices whether they dealt with cash transactions or not should be entirely closed on holidays notified under the Negotiable Instruments Act, 1881. This resolution was issued "By order of the Governor of Bombay" and was duly authenticated by Shri M.D. Bhat, the then Chief Secretary to the Government of Bombay. By a notification dated 3rd October, 1955, published in the Bombay Government Gazette, Extraordinary, Part 1, dated 5th October, 1955, the said notification having been issued by the Political and Services Department, it was notified that unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve already referred, clearly provides that subject to provision being made for urgent work, all offices should be entirely closed on holidays notified under the Negotiable Instruments Act, 1881. This resolution was made "By order of the Governor of Bombay" and was duly authenticated with the result that it would undoubtedly be binding on the Sales Tax Officers. It is true that the resolution did provide that closure of the offices is subject to the provision being made for urgent work. But, there is nothing at all on the record, and there could not be anything, to show that there was any such provision made by reason of which the office of the Sales Tax Officer concerned was to be kept open on 19th April, 1956. In fact, there was no question of urgency at all. Although section 15 of the said Act provided for a period of five years for initiation of proceedings in case of concealment of the turnover by the dealer, in the present case, the said notice was served on the assessees on 29th March, 1956, and thereafter there was no urgency about the holding of a hearing to enable the assessees to show cause against the proposed reassessment. That the Sales Tax Officer himself did not cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But, it was submitted by him that once some date and some place was specified in the notice, the validity of the notice would not be affected, although the date or the place might happen to be an impossible one on which it could not have been physically possible to hold a hearing. For example, it was submitted by him that even if the date contained in the notice was a date which had already passed and there was no other indication that any other date of hearing was intended, yet the validity of the notice would not be affected by this. We find ourselves totally unable to accept this argument. It is conceded by Mr. Andhyarujina, and it is beyond dispute, that in order to be a valid notice under section 15 of the said Act the date on which the assessees were required to attend must be stated. In such a case, to hold that once the date is stated in the notice, however meaningless it might be, the requirement regarding the stating of the date has been complied with would, in our opinion, reduce this requirement to a mere idle and meaningless formality. Let us take a case where an assessee is served with a notice under section 15 of the said Act and the date on which he is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings is not a mere procedural requirement: the service of the prescribed notice on the assessee is a condition precedent to the validity of any reassessment made under section 34. If no notice is issued or if the notice issued is shown to be invalid then the proceedings taken by the Income-tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. In Kulkarni v. Tribhovandas Bhimji Zaveri[1956] 7 S.T.C. 385., it has been held by a Division Bench of this Court that the notice required under section 11A of the Bombay Sales Tax Act, 1946, or under section 15 of the said Act is a condition precedent to the exercise of the jurisdiction by the Sales Tax Officer and if the notice is defective the condition precedent is not complied with and the Sales Tax Officer has no jurisdiction to assess. We may at this stage also consider some of the decisions regarding the validity of notices issued under section 34 of the Indian Income-tax Act, 1922, or section 15 of the said Act. In Nyalchand Malukchand Dagli v. Commissioner of Income-tax[1966] 62 I.T.R. 102., it has been held by the Gujarat High Court that a notice under section 34(1) of the Indian Income-tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly shows that although there was some discrepancy in the preamble, on a fair reading of the notice it clearly specified the year to which the notice related and hence the notice could not be said to be in any manner defective or misleading at all. In the case before us, however, as we have already pointed out, the date fixed for hearing in the notice was one on which the Government offices were closed and no hearing could possibly have been held with the result that the assessees who received the notice were left completely uninformed as to the date on which their attendance was required. Mr. Andhyarujina next referred to the decision of a Division Bench of this Court in Satramdas Laxmandas v. Collector of Sales Tax[1960] 11 S.T.C. 529., where the question related to a regular assessment under section 14 of the said Act. It has been held in this case that where from the terms of the notice there could be no doubt that it was intended to be issued by the Collector in exercise of the powers conferred by section 14(3) of the said Act, the failure to strike out from the printed form words which were inappropriate [referring to sub-sections (6) and (7) of section 14] did not affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56, issued by the Sales Tax Officer, fixing the date of hearing on 24th April, 1956. In connection with this question, it may be pointed out that it has been clearly held by a Division Bench of this Court in Ramsukh Motilal's case[1955] 27 I.T.R. 54 at 63., referred to earlier, that if a notice under section 34 of the Income-tax Act, 1922, gave only six days to the assessee to make a return under that section, the notice is clearly illegal and such illegality cannot be waived by the assessee. In connection with this question, it has been observed by the Division Bench as follows: "......It is well-settled that no consent can confer jurisdiction upon a court if the court has no jurisdiction, and if we take the view that the Income-tax Officer can have jurisdiction only provided he complies with the conditions laid down in section 34, then no consent by the assessee or no waiver on his part can confer jurisdiction upon the Income-tax Officer." It may be pointed out that in that case the assessee had actually made a return pursuant to the invalid notice under section 34 and it was yet held that reassessment proceedings pursuant to the said notice were invalid. This decision shows ..... X X X X Extracts X X X X X X X X Extracts X X X X
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