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TMI Blog2009 (3) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... chase the raw materials and consumable stores required for manufacture of tubes partly from within the State without payment of tax and partly from outside the State against form C. It is conceded position that the dealer-assessee has filed sales tax returns in form ST 9 for the assessment years 1987-88 and 1988-89 but did not file any returns regarding purchase tax, which were required to be filed in form ST 10. The Assessing Authority issued notices in form ST 25 under section 28(2) of the Haryana General Sales Tax Act, 1973 (for brevity, "the Act") asking it to produce documents/evidence in support of the returns for the purpose of finalising the assessment order under section 28 of the Act. The dealer-assessee raised objection that without issuing a statutory notice or a notice under section 28(5) of the Act, purchase tax assessment cannot be finalised. On January 7, 1991 and April 5, 1991, the Assessing Authority finalised the assessment of purchase tax in respect of the assessment years 1987-88 and 1988-89. Feeling aggrieved, the dealer-assessee filed appeals but the same were dismissed by common order dated November 25, 1997 passed by the Joint Excise and Taxation Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference and accordingly the appeals are dismissed." Thereafter, the dealer-assessee filed an application for referring ques tions of law for opinion of this court. The Tribunal declined the application vide order dated May 31, 2001, against which the dealer-assessee preferred S.T.C. No. 22 of 2002 in this court under section 42(2) of the Act for directing the Tribunal to draw up the statement of the case and refer the questions of law arising out of the order dated July 31, 2000. The Tribunal in compliance with the direction issued by this court vide order dated November 11, 2003 has referred the aforementioned question of law for opinion of this court. Mr. Avneesh Jhingan, learned counsel for the assessee-petitioner, has argued that in the absence of a specific notice under section 28(5) of the Act, it could not be said that any proceeding under section 28(5) of the Act stood validly initiated and therefore the best judgment assessment cannot be regarded to have been initiated by the Assessing Authority. In that regard he has placed reliance on a judgment of learned single judge of this court in the case of Gopal Oil Mills v. Assessing Authority, Ludhiana [1984] 57 STC 314. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith its correctness then the assessment is framed under section 28(1) of the Act without requir ing the presence of the dealer. However, if the Assessing Authority has expressed dissatisfaction with the returns then he has to issue statutory notice under section 28(2) in form ST 25 calling upon the dealer to produce evidence to prove the correctness of the return. If the dealer produces some evidence in response to the notice issued by the Assessing Authority, then the assessment is framed under section 28(3) of the Act. But if the dealer fails to respond to the notice the Assessing Authority can frame assessment on best judgment basis under section 28(4) of the Act. It is proved that sub-sec tion (5) of section 28 provides for giving the dealer a reasonable opportunity of being heard. The question is would there be any requirement in the facts and circumstances of this case to grant such an opportunity or the oppor tunity would be deemed to have been granted when notice under section 28(2) of the Act has been issued. It would first be appropriate to examine the rule which deals with framing of assessment and issuance of notice. In that regard reference may be made to rule 26 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken up and was under process with the Assessing Authority. It knew of the dates of hearing of the case (it mentioned to the High Court that the Assessing Authority is going to finalize the assessment for the assess ment year 1987-88 on March 22, 1990 and for the assessment year 1988-89 on January 21, 1991 and sought to restrain him to proceed further in the matter); it was given a reasonable opportunity of being heard as the assessments for the years 1987-88 and 1988-89 were final ized on January 8, 1991 and April 5, 1991, respectively, by associating the company with the assessment proceeding. The appellant-company supplied all the relevant information necessary for the quantification of purchase tax liability to the Assessing Authority. The record of the Assessing Authority was burnt to ashes in the fire on August 22, 1990 and he had solely to depend on the appellant for information. The appellant-company even filed statements before the Assessing Authority quantifying its purchase tax liability for the two years. It may also be noted that if the Assessing Authority proceeds to assess a dealer in the absence of returns and the dealer fully co-operates, there is no occasion for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that issuance of a notice in respect of a similar provision was not a condition precedent for initiating proceedings. The requirement of section 28(5) of the Act extends only to ground of reasonable oppor tunity of hearing which stands satisfied. The aforesaid principle laid down by the Constitution Bench in Anandji Haridas and Co. (P.) Ltd. case [1968] 21 STC 326 (SC) has also been followed and applied in the case of Commissioner of Sales Tax v. Subhash and Co. [2003] 130 STC 97 (SC). After considering the various judgments, their Lordships of the Supreme Court have extracted four principles which read thus (page 106 in 130 STC): "(i) Non-issue of notice or mistake in the issue of notice or defec tive service of notice does not affect the jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given. (ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard. (iii) If prejudice has been caused by non-issue or invalid service of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid; more so, if the assessee by his conduct has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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