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TMI Blog1979 (8) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... for the escaped turnover for the years 1957-58 to 1961-62. Thereafter, on 15th September, 1964, a show cause notice (marked exhibit 3) was issued calling upon the petitioner to show cause why the assessment for the years 1958-59 and 1959-60 be not reopened under section 12 of the Rajasthan Sales Tax Act. In reply to the aforesaid show cause notice, the petitioner-firm submitted its reply on 5th October, 1964, giving the required explanation and asserted that no turnover for those two years had escaped assessment. The CTO, in spite of detailed reply of the petitioner, insisted to make enquiry and on several occasions called the representatives of the petitioner to attend the office. On 12th March, 1965, the then CTO came to the office of the petitioner and seized some books of account and documents. The petitioner protested in vain and on 25th November, 1965, the CTO again came to the office of the petitioner and seized some more books of account and other documents. The CTO again issued a notice (exhibit 8) under rule 55A in the prescribed form S.T. 12A dated 13th December, 1968, for the reassessment of the escaped turnover for the period 1959-60. This notice was received by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired under rule 55A of the Rules. The relief sought in the writ petition is for the issue of a writ in the nature of mandamus, prohibition or any other writ or direction or order and for quashing the impugned notice dated 13th December, 1968 (marked exhibit 8), and further for the issue of a writ or direction in the nature of prohibition restraining the respondents to take any action under section 12 of the Act in pursuance of the impugned notice (exhibit 8) dated 13th December, 1968. Further prayer for relief is for the issue of any other writ, direction or order, which the circumstances of the case warrant. The respondents filed a reply to the writ petition, which may briefly be summarised as follows: It was not disputed that the notice in form S.T. 12A was prescribed on 31st December, 1964, by introducing a new rule 55A. It was, however, denied that the notices (exhibits 1, 2 and 3) were not valid notices because they fulfilled all the requirements of a show cause notice under section 12 of the Act and no prejudice had been caused to the petitioner. The notices (exhibits 1, 2 and 3) though not in the prescribed form are therefore valid notices. The notice (exhibit 8) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 1, 2 and 3) before this Court. The notice (exhibit 3) was in substantial compliance with section 12 of the Act and, in response thereof, the petitioner filed a reply before the assessing authority and thus submitted to its jurisdiction. In any case, if the petitioner had raised this objection at the earliest, the defect could be removed by issuance of another notice in form S.T. 12A prescribed under rule 55A of the Rules. In the present case, with regard to exhibit 3, there was a delay of about 5 years and, therefore, the writ petition should be dismissed. Our attention was invited to the following authorities in this regard: 1.. Purshottamdas Chowdhury v. Income-tax Officer, "A " Ward, District 24 Parganas[1972] 83 I.T.R. 907.: "A writ of certiorari is largely a matter of sound discretion and the writ will not be granted if there is such negligence or omission on the part of the assessee to assert his right, as taken in conjunction with the lapse of time and other circumstances, may cause prejudice to the other party. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect either p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples laid down in the decided cases indicate that a writ of prohibition will be available so long as there is something left for the writ to operate upon. Delay in applying for such writ will be no bar if there is a patent lack of jurisdiction in the authority against which the order is sought and the writ will issue almost as a matter of course and right. If, however, the lack or usurpation of jurisdiction is not patent on the face of the record, but latent, that is, not apparent, and requires further examination of records and investigation of facts, and there is delay in applying for a writ, issue of writ in such circumstances will be discretionary with the court depending on misconduct, laches or acquiescence on the part of the applicant unless it would be unjust for the court to interpose." In the present writ petition, the case of the petitioner is of patent lack of jurisdiction and the assessment proceedings have not come to an end against him. It appears that respondent No. 2 was equally guilty of laches inasmuch as the proceedings in pursuance of the notice (exhibit 3) issued in the year 1964 are still pending before him. In these circumstances, in our opinion, delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competence of the CTO. The learned counsel for the petitioner drew our attention to Fazlur Rahman v. Income-tax Officer, A Ward, Bareilly[1973] 90 I.T.R. 479., wherein a plea of limitation was allowed to be raised. We have gone through this authority but the ratio of it is not to the effect that such a point can be allowed to be raised in a writ petition. The reason is that it was not contended before their Lordships of the Allahabad High Court that such a point ought to have been raised before the assessing authority and, on such a point of limitation, the extraordinary jurisdiction of the High Court in a writ proceeding could not be invoked. We are, therefore, of the view that the petitioner is not entitled to raise the question of limitation under section 12 of the Act with regard to the notice (exhibit 8) by way of a writ petition. Points Nos. 3 and 4.-At the outset, it may be stated that the learned counsel for the non-petitioner, more or less, conceded that the notices (exhibits 1 and 2) were neither in the prescribed form nor in substantial compliance with the prescribed form S.T. 12A under rule 55A of the Rules. It is, however, vehemently contended that the notice (exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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