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TMI Blog1997 (12) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... sales tax payable under the Act. Ultimately, a final order of assessment was made on August 5, 1987 and a demand notice was served on the petitioner directing it to pay the balance sales tax payable according to the assessment order, which the petitioner did by depositing the balance amount on August 29, 1988. A copy of the assessment order has been annexed as annexure 4. 3.. The petitioner received two notices dated April 21, 1989 and July 21, 1989 informing the petitioner that there was an audit objection and, therefore, the petitioner was required to appear on May 7, 1989 with his books of accounts relating to the years 1983-84 and 1984-85. A copy of the so-called audit objection report was not annexed to the notice nor the notice purported to have been issued under any provision of the Act. Even the details of the audit objection were not stated in the notice. According to the petitioner, they had requested the prescribed authority to supply a copy of the audit objection to enable it to file an effective reply. That, however, is disputed by the respondents, who state that the same was shown to them when the petitioner appeared through its representative, and this fact is men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it objection. Thirdly, the audit objection does not amount to an information within the meaning of section 19(1) of the Act, and such information is a condition precedent to the initiation of a proceeding under that provision. In the absence of such information the proceeding under section 19(1) was not justified. Fourthly, mere change of opinion by the prescribed authority on the same set of facts and materials on record would not constitute information for the purpose of reassessment under section 19(1) of the Act. Lastly, even if the proceeding is deemed to be a review under section 47 of the Act, the same was not competent in the absence of sanction, as required by that provision. 5.. We shall deal with the first submission after noticing the submissions urged in support of other submissions. It was submitted that the earlier order of assessment was a perfectly valid and legal order. Reference was made to section 13(1)(b) of the Act, as it existed prior to August 1, 1985, and as it stood after its amendment, and it was submitted that the section, as it stood prior to its amendment provided a special rate of tax on certain sales and purchases, which included sales to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot concealed from the authorities. Those facts were disclosed and the assessing authority took note of those facts, and treated them as sales in course of inter-State trade or commerce on which special rate of tax was payable under section 13(1)(b) of the Act. All that the authorities now wish to do is to change their opinion and treat such sales as sales not in course of inter-State trade or commerce, since there is an audit objection to this effect. On the same set of facts, merely because of change of opinion a proceeding under section 19(1) was not justified. The submission that the impugned reassessment order cannot be an order passed under section 47 of the Act, as there was no sanction as required by law, is not disputed by the respondents, because their clear case is that the impugned order of reassessment was passed under section 19(1) of the Act. 8.. The above points urged before us are no doubt attractive but in the view that we have taken on the first submission urged before us, it is not necessary to consider those submissions because we are of the opinion that the initiation of the proceeding under section 19(1) of the Act was itself not in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the notice, for producing such accounts and other evidence, as it may require and for considering any objection which the dealer or the person concerned may prefer. Form XIV in so far it relates to section 19 of the Act is required to be in the following form: Whereas upon information which has come into my possession, I am satisfied that reasonable grounds exist to believe that your turnover for the period mentioned below has escaped assessment/has been under-assessed/has been assessed at a rate lower than that which was correctly applicable/has been subjected to wrong deduction; I, therefore, propose to assess/reassess the amount of tax due in respect of the said turnover and for that purpose I hereby require you to attend in person or through an authorised representative to produce or to cause to be produced accounts, registers, documents and other evidence mentioned hereunder at the following place and time, according to the provisions of section 19(1) read with section 17(2) of the Act. 9.. It would thus to be seen that the notice prescribed under the rules mentions the purpose for which the notice has been issued, i.e., to assess/reassess the amount of tax due in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceeding is not a mere procedural requirement. If no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken without a notice or in pursuance of a invalid notice stand on the same footing and would be illegal and invalid. In that case one of the questions referred for the opinion of the court was as follows: (1) Whether memo No. 3115 dated 25th October, 1965 which reads please refer to your sales tax cases for the period from 1st July, 1959 to 31st March, 1963. You are, hereby, requested to produce your books of accounts for the above periods on 13th December, 1965 , is a notice as required under section 18(1) of the Bihar Sales Tax Act, 1959? Their Lordships held: 16. The notice prescribed under section 18(1) of the Act for the purpose of initiating reassessment proceeding is not a mere procedural requirement. If no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken over without a notice or in pursuance of invalid notice stand on the same footing and would be illegal and invalid. The words reasonable grounds in section 18 of the Act mean only this that it must be reason or in other word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the instant case and the memo issued in Usha Sales (Pvt.) which is quoted in the said reported decision. Neither the satisfaction of the prescribed authority was recorded nor was any section of the Act mentioned, nor did the notice clarify for what purpose books of accounts were required to be produced. The principle laid down in the aforesaid division Bench decision is binding upon us. We are therefore, satisfied that the notices issued to the petitioner were not notices validly issued, as was required to be issued under section 19(1) of the Act read with section 17(2) and rule 20 of the Rules. Admittedly, the notices were not even issued in the prescribed form. Even if strictly the notice was not issued in form XIV, but in substance it contained the matters which such a notice must contain, we may not have taken the view that we have taken, because in that event it would have been merely a matter of form and not of substance. Since the notices issued to the petitioner did not contain the matters which ought to be contained in a valid notice, such as the satisfaction of the prescribed authority, the purpose for which the notice is issued, the provision of law under which the act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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