PUBLIC PROSECUTOR A P Vs. MUKHA SINGH CHANDA

JUDGEMENT

(1.) THIS criminal appeal was heard by Jaganmohan Reddy, J. (as he then was), who by his order dated 17th March, 1965, referred to a Bench the following question :

(2.) PURSUANT to that order, the case was posted before us and argued by the learned counsel. The question for decision arose under the following circumstances : There was an assessment upon a firm known as "Kohli Motors, Bezwada" for the year 1957-58 under the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as the Act). The said firm consisted of three partners, Mukha Singh Chanda, Gurubukh Singh Kohli and Preetam Singh Kohli, who are the three accused in C.C. No. 211 of 1962 on the file of the court of the Third Additional District Munsif-Magistrate, Vijayawada. The said firm was dissolved on 1st August, 1959. A notice of dissolution of partnership was given to the Sales Tax Authorities under the relevant rules. The deed of dissolution provided that all taxes due by the firm were to be paid by the first accused, Mukha Singh Chanda. Subsequent to the dissolution, it was found by the Deputy Commercial Tax Officer, Vijayawada-III, that certain turnover escaped assessment and a notice, exhibit P-3, was issued to the three accused under section 14 of the Act to appear in his office on 30th March, 1961, at 11 a.m. and file objections, if any, for the proposed assessment of the escaped turnover, which the dealers did not disclose in the turnover returned by them. It appears from the record that the first accused lives in Bombay and the second and third accused in Bezwada. The notice issued to the first accused was sent by registered post with acknowledgment due to a firm called "Independent India Motors" while the notices to the second and third accused were sought to be personally served and on refusal by affixture. As anyone of the three partners did not appear to show cause why they should not be reassessed with respect to the escaped turnover, the said escaped turnover was assessed to sales tax by assessment order dated 30th March, 1961 (exhibit P-5). Thus it was an ex parte order of assessment. A notice of demand (exhibit P-6) dated 30th March, 1961, was issued to the three accused. The amount of tax payable as per the notice of demand was Rs. 2,662.97 nP. on the escaped turnover of Rs. 56,810. Since the tax was not paid, the Deputy Commercial Tax Officer, Vijayawada-III, filed a complaint before the Third Additional District Munsif-Magistrate, Vijayawada, seeking to prosecute the three accused under section 30(1)(a) of the Act alleging that the firm, M/s. Kohli Motors, Vijayawada, of which the three accused were partners failed to pay the tax in spite of the issue of demand notice to them. The accused pleaded that they are not guilty. In substance, the case for the accused was that neither exhibit P-3, the notice under section 14(4) of the Act to show cause why assessment shall not be reopened and the escaped turnover assessed to sales tax nor the order of reassessment (exhibit P-5) nor exhibit P-6, the demand notice, was served on any of them and that, therefore, it cannot be said that they failed to pay the tax assessed under the Act and that they are not guilty under section 30(1)(a) of the Act. Section 30 of the Act provides for offences and penalties. The relevant part of the said section is as follows :-

(3.) WE have to decide this question on the basis that exhibit P-3 was not served on the accused though the order of assessment and the notice of demand were served on them. It is contended by the learned counsel for the accused that the Deputy Commercial Tax Officer will have jurisdiction to reopen the assessment already made on the ground that certain turnover has escaped assessment under section 14(4) of the Act only after issuing notice to the dealer and after making such enquiry as he considers necessary and as, in this case, the said notice was not served on the three accused, who were the partners of the assessee-firm and no enquiry was made, the order of reassessment (exhibit P-5) is void and the accused cannot be said to have failed to pay the tax assessed on them "under this Act" within the meaning of section 30(1)(a). Sub-section (4) of section 14 reads :