9911796707
TMI Blog1990 (10) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 to 1975-76), as nullity. 3.. Gopaljee, the elder brother of the petitioner started manufacture of and carried on business in sweetmeats under the name and style of "Bombay Ganthia Mistarna Bhandar" since 1958. He was a registered dealer bearing Registration Certificate No. CU-I-3458 (CU-I-W-1373). He died on October 24, 1974. The petitioner inherited his property and carried on the business left by his brother. He informed the Sales Tax Officer that his brother had passed away and hence the registration certificate should be suitably amended. No action was, however, taken. On a plea that the turnover for the year 1972-73 had escaped assessment/was under-assessed, notice under section 12(8) was issued to M/s. Bombay Ganthia Mistarna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 975-76 for his verification in order to enable him to complete assessment for the said period pursuant to the direction of the Tribunal, vide annexure 5 dated February 6, 1981. The petitioner sent his reply as per annexure 6 dated February 12, 1981, stating that the assessing officer was not competent to proceed with the earlier proceedings but to issue fresh notice to the petitioner in order to make the assessment. He, therefore, requested the Sales Tax Officer to issue the prescribed notice. Despite the same, the Sales Tax Officer (opposite party No. 2) again insisted that he should produce the books of accounts for the years and informed the petitioner that the period of limitation would not apply to these "set aside cases" (vide annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dealer a reasonable opportunity of being heard. Subsection (8) of section 12 authorises the Commissioner where for any reason the turnover of a dealer for any period to which this Act applies has escaped assessment or has been under-assessed or where tax has been compounded when composition is not permissible under this Act, to call for return within the time prescribed therein and to proceed to assess the amount of tax due from the dealer in the manner laid down and if the other conditions contained in the said sub-section are satisfied to impose penalty. Section 19-A(2) enables the Commissioner to proceed to make an assessment and determine the tax and penalty when a dealer liable to pay tax dies without having furnished the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders the proceeding and the assessment illegal and void. He has relied upon the following decisions: (a) [1972] 30 STC 567 (SC) (Sales Tax Officer v. Uttareswari Rice Mills); (b) [1959] 35 ITR 388 (SC) (Y. Narayana Chetty v. Income-tax Officer) under section 34 of the Indian Income-tax Act; (c) [1979] 44 STC 456 (Raj) (Jaipur Udyog Ltd. v. Commercial Taxes Officer); (d) [1967] 66 ITR 147 (SC) (Commissioner of Income-tax v. Thayaballi Mulla Jeevaji Kapasi); (e) [1977] 39 STC 426 (Bom) (Manekia v. Commissioner of Sales Tax) under section 15 of the Bombay Sales Tax Act; (f) (1968) II TR 61 (Raj) (Braham Dutt v. Sales Tax Officer) under section 12 of the Rajasthan Sales Tax Act; (g) [1967] 63 ITR 219 (SC) (Narayanappa v. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax Act, 1947, does not postulate issue of any notice. "Therefore, issue of a notice is neither mandatory nor any misdescription therein will render the assessment invalid, unless the assessee has been prejudiced thereby." In [1968] 21 STC 326 (SC) (Anandji Haridas and Co. (P.) Ltd. v. S.P. Kushare, Sales Tax Officer), it has been held that the notice contemplated under rule 32 is not similar to notice issued under section 34(1)(b) of the Indian Income-tax Act. All that sections 11(4)(a) and 11A(1) prescribe is that before taking proceedings against the assessee under those sections, the assessing officer should give the assessee a reasonable opportunity of being heard. In fact, those sections do not speak of any notice. But rule 32 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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