9911796707
TMI Blog1978 (1) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... uired under Article 304 of the Constitution. The present Act, The Assam Taxation (On Goods Carried by Road or Inland Water-ways) Act, 1961 (hereinafter called as the Act ), was passed by the Assam Legislature with the sanction of the President for the purpose of validating the tax that had been imposed under the 1954 Act. The Act received the assent of the President on April 6, 1961 and was published in the Assam Gazette on April 15, 1961 and was to be in force only up to March 31, 1962. The validity of this Act was also challenged and the High Court of Assam by its order dated August 1, 1963 held that this Act was also ultra vires. The State Government appealed to this Court against this judgment. While the appeal was pending before this Court two writ petitions filed by different assessees under Article 32 of the Constitution before this Court were disposed of on December 13, 1963 holding that the Act was valid. On an application made by the Government of Assam pending the appeal against the order dated August 1, 1963 of the Assam High Court this Court granted stay of the operation of the judgment of the High Court and on January 29, 1965 made the stay absolute subject to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 7(2) and Section 11 of the Act directing the assessee to show cause why assessment proceedings should not be initiated within 2 years from the date of the expiry of the return period was issued, no assessment proceedings could be validly initiated as it became time-barred under Section 7(2) of the Act. The plea on behalf of the Government was that the demand by the taxing officer under Section 9(3) of the Act is in pursuance of the return filed voluntarily by the assessee though without payment of the tax and out of time and that it can be taken as a return and assessment made under Section 9 of the Act. In this view the submission was that it is not necessary for the tax authorities to issue airy notice under Section 7(2) within 2 years from the date on which the return ought to have been submitted. The High Court held that as under Section 7(1) the return must be submitted within a period of 30 days after the completion of the return quarter, the return submitted after the statutory period must be held to be honest for the purpose of initiating assessment proceedings based thereon and as no action had been taken, either under Section 7(2) or Section 11 of the Act, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority as prescribed by the Rules and the fact that there was any defect in the return such as non-payment of tax as required under Section 20(2) or delay in filing the return within the time prescribed under Section 7(3) the return will not become non est. The consequence of filing a defective return is not to make the return non est but to make the assessee liable to penalty under, Section 13 of to other proceedings. So long as there is a return the learned Counsel submitted that it was not necessary for the tax authorities to proceed under Section 7(2) which is applicable to cases where no return has been submitted. In support of his contention that any defect in the return would not make the return non est, the learned Counsel referred us to three decisions. AIR1931Cal476 and 48 I.T.R. 1. In 'Chandra Nath Bagchi v. Nabadwip Chandra Dutt and Ors. AIR1931Cal476 the judgment debtor pleaded want of notice under Order 21, Rule 22 of the Civil Procedure Code, which requires that an opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed. It was admitted that no suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount by which the tax so paid falls short of the said eighty per cent. According to the sub-section interest has to be calculated from first January in the financial year in which the tax mentioned was paid and such calculation has to be made on the short-fall between the amount paid and 80 per cent of the tax which was found payable on the regular assessment. According to Sub-section (8) where on making the regular assessment Income-tax Officer finds that no payment of tax has been made in accordance with the provisions of this section, interest calculated in the manner laid down in Sub-section (6) shall be added to the tax as determined on the basis of regular assessment. The assessee's contention was that since he had not paid any tax at all it is not possible to calculate interest in the manner laid down in Sub-section (6) The, plea was that in a case in which no tax had been paid at all, Sub-section (6) will have no application as there is no short-fall between 80 per cent of the tax payable on regular assessment and the amount actually paid. The Court rejected the plea and held that Sub-section (6) should be read according to the provisions of which interest has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases, the Superintendent of Taxes treated the returns filed as invalid ones. It was submitted that the tax authorities cannot now be allowed to change their front and submit that they proceeded, to assess on the basis of the returns furnished by the respondent. It is common ground that no notice under Section 7(2) of the Act within 2 years of the expiry of the return period was issued to the respondent. This Court, by a majority in Supdt. of Taxes, Dhubri and Ors. v. Onkarmal Nathmal Trust etc. [1975] Supp. 365 has held that before proceedings could be taken under Section 9(4) it is mandatory that notice under Section 7(2) will have to be issued. Therefore, the only approach that is available to the State and which has been taken by the learned Counsel, is that the assessment proceedings are valid as the return is not non-est. The question that arises for consideration is whether we should allow this plea to be taken by the State when it admitted before the High Court that the assessment was not based on the return. It has to be seen that the ground that was urged by the respondent was that the returns were non-est which was accepted by the High Court. We do not think we will b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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