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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 ..... refer the following question of law for opinion of this court, which has emerged from the order dated July 31, 2000, passed by the Tribunal in respect of assessment years 1987-88 and 1988-89: Whether, in the facts and circumstances of the case, a second/ separate show-cause notice is mandatory for the levy of purchase tax under section 28(5) of the Haryana General Sales Tax Act, 1973? Brief facts of the case are that the dealer-assessee is engaged in the business of manufacture and sale of steel tubes, which are partly sold from within the State and partly from its depots situated outside the State. The dealer-assessee used to purchase 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his consent or in his presence, no prejudice is caused to him by not issuing a notice in the prescribed form. Regard ing double credit of payment of tax liability assessed it is a matter of record that the dealer not adjusted of payment of worth Rs. 1.40 lacs in March, 1990 against its purchase tax for both the years 1988-89 and 1989-90 which could not be allowed twice and as such Joint Excise and Taxation Commissioner (A) was fully justified to disallow such a double credit which was wrongly allowed by the assessing authority. In view of these observations the orders of the Joint Excise and Taxation Commissioner (A) do not warrant any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-section (2), the Assessing Authority shall, within five years after the expiry of such period, proceed to assess to the best of his judgment the amount of the tax due from the dealer. (5) If a dealer does not furnish returns in respect of any period by the prescribed date, the Assessing Authority shall, within five years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess, to the best of his judgment, the amount of tax, if any, due from the dealer. A perusal of the aforesaid provision shows that in a case where the dealer furnishes a return and the Assessing Authority is satisfied with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment under section 28(3) of the Act. The facts of the present case reveal that the assessment has been finalised with the co-operation of the dealer. The aforesaid factual position is revealed from the order of the Joint Excise and Taxation Commissioner (Appeals), Rohtak vide order dated November 25, 1997 which reads thus: 23. It is seen from the facts stated above that all the necessary ingre dients of section 28(5) to frame assessment validly were present at the relevant time when the assessments for the year 1987-88 and 1988-89 were originally finalized. It was clearly in the notice of the appellantcompany that its case for assessment of purchase tax had been taken 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti tioner had supplied all the relevant information necessary for quantification of purchase tax liability to the Assessing Authority because the record of the Assessing Authority was burnt to ashes in the fire on August 22, 1990 on account of Mandal commission agitation. The Assessing Authority had to depend on the dealer-petitioner for every information. There was no occasion for the Assessing Authority to make any guess about the turnover liable to be taxed. It was in these circumstances that the Supreme Court while interpreting the provisions of section 11 of the Central Provinces and Berar Sales Tax Act, in Anandji Haridas and Co. (P.) Ltd. case [1968] 21 STC 326 has held 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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