9911796707
TMI Blog1983 (9) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... ice was actually served on one Harishankar, son of Ramswaroop, one of the partners of the petitioner-firm. By this notice, the petitioner was required to appear before the S.T.O. on 11th April, 1979. One of the partners is alleged to have appeared on that date but he was assigned no other date in the order sheet and was orally ordered to appear on 30th April, 1979. It appears that the assessment was completed on 11th April, 1979, and the assessment order was passed treating the petitioner ex parte. The gross turnover shown in returns filed by the petitioner were accepted but certain deductions claimed on account of sales to registered dealers were not allowed. The petitioner was served with demand notice on 20th May, 1979. On 18th June, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be interfered with, the second contention has substance and must be accepted. It is true, as held by the Full Bench of the Allahabad High Court in Laxmi Narain Anand Prakash's case [1980] 46 STC 71 (FB), that absence of due and proper service of notice to the initiation of assessment proceedings is without jurisdiction. In the present case, however, we notice that the return for the period under assessment itself was filed by Harishankar. Not only this, even earlier it is this Harishankar alone who had been acting before the sales tax authorities on behalf of the partner and was duly representing the firm. Under these circumstances, the S.T.O. committed no error in holding Harishankar as an "agent" of the petitioner-firm within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with the principles of natural justice so that the assessee is not affected adversely without being heard. In the instant case, from the order of the S.T.O. dated 11th April, 1979, it is apparent that for the purpose of turnover tax he has allowed the deduction claimed by the petitioner. If in spite of this, and in spite of accepting the figure of gross turnover as submitted by the petitioner, the S.T.O. felt that the same deduction was not allowable for any reason for the purpose of assessment of sales tax, the petitioner ought to have been noticed and should have been given an opportunity of being heard before the same item was rejected. It appears somewhat anomalous that in the same order for one purpose, namely, for purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it on the second count (for the purpose of assessment of sales tax), the assessee ought to have been given an opportunity against that action. The order does not disclose the application of mind for not allowing the deduction for purpose of assessment of sales tax nor does it show how and on what basis the authority has proceeded to assess to the best of his judgment under section 18(4)(d) of the Act. We are, therefore, of opinion that the assessment of sales tax cannot be upheld. 5. The petition is allowed. The impugned order of the S.T.O. dated 11th April, 1979, in so far as it relates to the assessment of sales tax, and the order of the Deputy Commissioner of Sales Tax dated 15th October, 1980, upholding that order are hereby set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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