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TMI Blog2000 (6) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... r turnover tax blank without filling it up. He was not informed of any assessments made for the four periods mentioned above. He had wanted to know from the respondent No. 2, the Assistant Commissioner, Commercial Taxes, Durgapur Charge, whether assessment for the said four periods had been completed under section 9A(1) or section 9(2) or section 9(3) of the 1954 Act. The applicant did not receive any reply. Much later in March 1997, the applicant received four notices, all dated March 10, 1997, from the respondent No. 1 asking him to show cause why assessments made under section 11(E) of the 1941 Act for the four periods mentioned above should not be reopened. In these notices no reason for reopening the deemed assessments allegedly made under the 1941 Act was given. 4.. The applicant replied to the show cause notices, made his submission at the hearing before respondent No. 1 and explained why, according to him, the deemed assessments, if made should not be reopened. On October 13, 1998, the applicant received four orders from the respondent No. 1 all dated October 9, 1998, for the aforesaid four periods, by which the deemed assessments were reopened and fresh assessments were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport of his contention Shri Chakraborty cited a number of judgments of different courts including those in: (1) Y. Narayana Chetty v. Income-tax Officer, Nellore reported in [1959] 35 ITR 388 (SC) and (2) Commissioner of Income-tax, Gujarat II v. Kurban Hussain Ibrahimji Mithiborwala, reported in [1971] 82 ITR 821 (SC). 8.. The third main submission of Shri Chakraborty arises from the fact that, in the returns submitted by the applicant for the periods concerned, the columns regarding turnover tax were left blank. The return, according to Shri Chakraborty, is a composite return in respect of sales tax, purchase tax and turnover tax. The parts of the return relating to sales tax and purchase tax were filled up. The part relating to turnover tax was not filled up. The turnover had no doubt been mentioned for other purposes in the part relating to sales tax/ purchase tax, but no turnover for the purpose of turnover tax had been mentioned in the part relating to turnover tax. No turnover tax had also been paid at the time of furnishing return. Thus there was no concealment of sales in the return and no incorrect particulars had been given by the applicant in the return. On the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that purpose was served. Deputy Commissioner of Commercial Taxes, Durgapur Circle, respondent No. 1, had jurisdiction to reopen deemed assessments under both the Acts. After the notice was issued, the applicant submitted to the jurisdiction and appeared before respondent No. 1 twice. The applicant was not denied natural justice during the proceeding, and he should have no cause for complaint. The mistake in quoting the wrong Act did not cause jeopardy and hence it ought to be considered a technical irregularity worthy of being condoned. The authorised representative of the applicant appeared before respondent No. 1 on August 5, 1988 and September 1, 1998 and prayed for time on both occasions. However, nobody appeared thereafter, and the case was heard and disposed of ex parte. In support of his contention Shri Saha, referred to the judgment in the case of Anandji Haridas and Co. (P.) Ltd. v. S.P. Kushare, Sales Tax Officer, Nagpur, reported in [1968] 21 STC 326 (SC), specifically to page 340 of the same. 10.. The basic contention of Shri K.K. Saha on this point was that since the applicant had submitted to the jurisdiction of respondent No. 1, appearing before him on at leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in rule 32 is not mandatory. The rule itself says that 'ordinarily' not less than 30 days' notice should be given. Therefore, the only question to be decided is whether the defects noticed in those notices had prejudiced the appellants. It may be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them." 13.. Shri Saha, contended that provisions of section 9A(2) of the 1954 Act, and rule 22AA of the 1954 Rules of the West Bengal are such that the observations of the Supreme Court can be readily applied to the present case. In a case under the Orissa Sales Tax Act, 1947, Sales Tax Officer, Ganjam v. Uttareswari Rice Mills, reported in [1972] 30 STC 567, the Supreme Court observed as follows: "There is nothing in the language of section 12(8) of the Act which either expressly or by necessary implication postulates the recording of reasons in the notice which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this situation it cannot be stated that he had got an opportunity to show cause why such deemed assessments should not be reopened. Since he did not get the opportunity, the principle of natural justice was violated. In the process rule 22AA of the 1954 Rules which specifies the issue of a notice in this regard, as well as consideration of the cause shown, was violated. Just because an authorised representative of the applicant had appeared on two dates before the respondent No. 1 and had asked for time, it cannot be concluded that, since the authorised representative could know if he wanted from the respondent No. 1 the correct Act and the correct section and could have thereby created a situation where cause could be shown, adequate opportunities for showing cause had been given to the applicant. The orders passed by respondent No. 1 therefore cannot be sustained. It is not the case of the respondents that respondent No. 1 or anybody else, had ever informed the applicant, orally or in writing, the reasons why the reopening of the deemed assessments was considered necessary. We therefore hold that the orders were passed without following rule 22AA of the 1954 Rules and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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