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TMI Blog1998 (1) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... n up an assessment order but before he could sign it he died. The successor-in-office of this deceased officer fixed a date for the hearing of the said assessment case once again. In the intervening period all the documents and evidences produced before Shri Basu Chowdhury were destroyed due to a devastating fire which engulfed the premises No. 23A, Netaji Subhas Road, Calcutta-700 001. As a result, the petitioner could not produce the declarations in form XXIV before the successor officer and hence the claims, preferred under section 5 of the 1941 Act, were disallowed. The applicant came up in appeal and revision. While disposing the revision case, the West Bengal Commercial Taxes Tribunal (now renamed as the West Bengal Commercial Taxes Appellate and Revisional Board), in Revision Case No. 472 of 1975-76, set aside the relevant assessment order with directions to the assessing authority to consider important materials like the assessment order left unsigned by the deceased officer. On remand the Commercial Tax Officer did not allow the claims preferred under section 5 of the 1941 Act. Being aggrieved by this reassessment order, the applicant preferred an appeal but the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant. Alleged production of declaration forms at a stage which did not lead to actual assessment of the petitioner is not a discharge of legal obligation on him to produce declaration forms at the time of assessment. 4.. It appears that the facts in this case are not disputed. It is an admitted fact that the applicant produced before the Commercial Tax Officer, Rajakatra Charge on November 28, 1972 all statutory evidence including 868 declarations in form XXIV in support of its claim under section 5 of the 1941 Act. These facts were noted in the records by the Commercial Tax Officer who reserved his order. But he died before passing the order. However, a draft assessment order, said to be in the handwriting of the deceased officer, was located in the file. In this draft assessment order there is a recital to the effect that the dealer s claims under section 5(2)(a)(ii) on account of sales to registered dealers in West Bengal were checked with sale bill copies, sales tax account register and 868 valid XXIV forms covering sales amounting to Rs. 81,32,276.28 which should be allowed. There is also no dispute about the fact that between December 28, 1972 (when the C.T.O. recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provision. The Board has also held that under such circumstances even if the draft order is produced, no action can be taken on the basis of the unsigned document which was inadmissible under the law and therefore no adverse presumption can be drawn against revenue for inability to produce the draft order. The Board accordingly rejected the revision petition. 5.. The Assistant Commissioner was of the opinion that in view of the inability of the applicant to produce records which had been consumed by fire engulfing their office premises, the proper course of action for them should have been to approach the Commissioner taking advantage of the Notification No. 737-F.T. dated February 17, 1976. The Assistant Commissioner observed that it is unfortunate that the petitioner-dealer did not avail of the amended provision of the Act and did not apply to the Commissioner for such exemption. This observation of the Assistant Commissioner appears to be incorrect. From annexure C to the supplementary petition, it would be seen that by a letter dated April 9, 1976 the applicant had approached the Commissioner, Commercial Taxes, for an order under section 5(4) of the Bengal Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 28, 1972 there was nothing to indicate that the assessing officer had been satisfied with the documents produced and it is in connection with this that the draft order becomes important. It is undisputed before us that it was drafted by the officer concerned in his own hand. Hence it goes to show that he had been satisfied about the claims made by the dealer. In this connection, it is to be noted that in the Revision Case No. 472 of 1975-76, the West Bengal Commercial Taxes Tribunal had indicated that the draft order appeared to be in the handwriting of Shri Basu Chowdhury though it did not bear his signature. The Board has observed that admittedly in this case no evidence whatsoever was adduced from which the learned Tribunal (which is the Board s old name) could come to a conclusion that it appears to be in the handwriting of Shri Basu Chowdhury though it does not bear his signature . The Board has observed that this sentence clearly indicates that the Bench was familiar with the handwriting of the officer concerned. In this matter we should bear in mind that the entire file was before the West Bengal Commercial Taxes Tribunal and it had an opportunity of examining the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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