GANESH PRASAD DIXIT Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THIS is a reference under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, at the instance of the assessee Ganesh Prasad Dixit of Marhatal, Jabalpur. The questions which we have been asked to answer by the Sales Tax Tribunal are :

(2.) THE material facts are that the assessee is a building contractor and registered as a dealer under the Madhya Pradesh General Sales Tax Act, 1958. In the course of his business he is required to purchase certain goods and materials for the execution of contract works undertaken by him. As he failed to submit a return for the assessment period 1st July, 1961, to 30th September, 1961, a notice under Section 18 (5) of the Act in Form XVI was issued to him asking him to appear with his account books. The Sales Tax Officer found that the assessee's turnover for the period in question was nil. He, however, came to the conclusion that during the material period the assessee purchased building materials from unregistered dealers of the value of Rs. 40,000 and that on these purchases he was liable to pay purchase tax under Section 7 of the Act. Accordingly an assessment of purchase tax on Rs. 40,000 was made by the Sales Tax Officer at the prescribed rate. The assessee's appeal before the Commissioner of Sales Tax and the Sales Tax Tribunal, namely, the Board of Revenue, failed.

(3.) THE first question must be answered in the negative. under Rule 33 of the Madhya Pradesh General Sales Tax Rules, 1959, a notice for assessment under Section 18 (5) has to be in Form XVI. That rule says that ordinarily not less than 15 days' time from the date of the service of the notice should be given to the assessee to show cause why he should not be assessed or reassessed to tax and/or penalty should not be imposed upon him. As has been found by the Sales Tax Tribunal, the notice given to the assessee was served on the applicant on 23rd November, 1961, and he was called upon to show cause by appearing on 30th November, 1961. That notice no doubt did not give to the assessee 15 days' time. But for that reason neither the notice nor the assessment proceeding taken on the basis of that notice becomes invalid. Rule 33 says that ordinarily not less than 15 days' time from the date of the service of the notice should be given. The use of the word "ordinarily" in Rule 33 indicates that the giving of 15 days' notice is not an invariable or a rigid rule. It may be that in a particular case a notice giving less than 15 days to the assessee may have resulted in prejudice to him. But that is not the complaint before us in this reference, and we are not called upon to answer whether the petitioner was in any way prejudiced by being required to show cause within seven days of the service of the notice.