KISANLAL RAJMAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the said Act"), made by the Sales Tax Tribunal, Bombay, at the instance of the applicants, who are the assessees, in which the following question has been referred to us :

(2.) At all material times, the applicants were registered as dealers under the said Act. Under section 33(5) of the said Act, if a registered dealer does not furnish returns in respect of any period by the prescribed date, the Sales Tax Officer has the power to make a best judgment assessment after giving such dealer a reasonable opportunity of being heard. For the period of Samwat Year 2022, the applicants failed to file any return and even though notice was served upon them under section 33(5) of the said Act, they failed to produce their books of account as also to file their returns for the said period. Accordingly, the Sales Tax Officer passed or made an ex parte order of best judgment assessment. In respect of the period 13th November, 1966, to 2nd November, 1967, that is, for Samwat Year 2023 also, the applicants failed to file their returns. Thereupon, on 14th January, 1968, the Sales Tax Officer issued a notice to them calling upon them to show cause why they should not be assessed under the said section 33(5). By this notice, the assessees were also called upon to produce their books of account. It is not clear whether any subsequent notice was served upon the applicants but it appears that the matter was fixed for hearing on several dates at none of which the applicants produced their books of account. Ultimately by his order dated 4th August, 1969, the Sales Tax Officer passed an ex parte order of assessment estimating the applicants' taxable turnover for the period in question to the best of his judgment. It may be mentioned that on 27th June, 1969, more than a month before the said order of assessment was made, the applicants filed their returns for the said period and these returns were taken on the record. The reason for passing the said order of assessment is stated by the Sales Tax Officer in his said order as follows :

(3.) It is an admitted position that though returns for the said period had been filed more than a month prior to the passing of the said ex parte order of assessment and though this fact is mentioned in the said order of assessment, the Sales Tax Officer did not take into consideration these returns or what was stated therein.