RATANLAL HUKUMCHAND Vs. ADDITIONAL COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THE petitioner is a Hindu undivided family trading under the name and style "messrs Ratanlal Hukumchand" at Ujjain and is a registered dealer under the Madhya Pradesh General Sales Tax Act, 1958, and was also a registered dealer under the Madhya Bharat Sales Tax Act, 1950 (Act No. 30 of 1950) which has been repealed by the Madhya Pradesh General Sales Tax Act, 1958. The Sales Tax Officer, Ujjain, for the assessment year 1957-58 assessed the petitioner-firm, by an order, dated 30th September, 1961. By another order, dated 28th November, 1961, the said officer imposed a penalty of Rs. 5,000 against the petitioner under Section 14 (1) (e) of the Madhya Bharat Sales Tax Act. The petitioner filed revision petitions against the said orders before the Additional Commissioner of Sales Tax, M. P. , Indore. The revisional authority modified the assessment order to certain extent and also reduced the penalty. In this petition under Article 226 of the Constitution the petitioner seeks a writ of cerliorari for quashing the said orders.

(2.) FROM the assessment record it appears that for the first three quarters the returns were filed on 29th July, 1957, 28th October, 1957, and 28th January, 1958, and the sales tax amounting to Rs. 4,000 was also deposited. No return was filed for the last quarter. After notice to produce account books etc. , the case was fixed for 25th July, 1961. On that date, on the request of the petitioner, the case was adjourned to 19th August, 1961, and, again on the same request, to 30th August, 1961. On 30th August, 1961, the Sales Tax Officer was out of station in connection with some official work and the case was adjourned to 29th September, 1961. The karta of the petitioner's family was personally present on that date. On 29th September, 1961, again, an application was made for further adjournment which was rejected by the Sales Tax Officer and the case was closed for orders. In the order, dated 30th September, 1961, the Sales Tax Officer observed that the petitioner was given a number of adjournments before 29th September, 1961, and on that date again, when the adjournment was sought, it was refused. The Sales Tax Officer formed an opinion that the petitioner was not prepared to produce his account books and that he was interested in protracting the proceedings in order to avoid the payment of tax. As no account books were produced before the Sales Tax Officer, he proceeded to assess the petitioner under Section 8 (4) of the Madhya Bharat Sales Tax Act to the best of his judgment and determined the tax liability at Rs. 19,896. 12 np. after giving the deduction of Rs. 4,000 already deposited. The Sales Tax Officer also imposed a fine of Rs. 200 for the petitioner's failure to file the return for the last quarter. After the assessment order was passed, the Sales Tax Officer issued a notice to the petitioner to show cause why a penalty should not be imposed under Section 14 (1) (e) of the Madhya Bharat Sales Tax Act and imposed the penalty of Rs. 5,000.

(3.) SHRI C. P. Sen, learned counsel for the petitioner, urged before us that the Sales Tax Officer was in error in refusing adjournment on 29th September, 1961; there was no justification for reaching the conclusion that the petitioner was not prepared to produce his account books and on that ground resorting to "best judgment" assessment under Section 8 (4) of the Madhya Bharat Sales Tax Act. It is an undisputed fact that on two occasions the adjournment was granted at the request of the petitioner. On 30th August, 1961, when the case was adjourned to 29th September, 1961, the karta of the petitioner's family was present and he knew the date to which the case was adjourned. Even if it is assumed that because of cases fixed elsewhere it was not passible for him to attend the assessment proceedings personally, there was nothing to prevent him from producing his account books through his agents. In these circumstances, it cannot be said that the Sales Tax Officer committed any error in closing the case. Whether the petitioner should have been granted a further adjournment or not was a matter of discretion with the Sales Tax Officer. The exercise of the discretion in this case cannot be said to be mala fide or capricious. We, therefore, do not find any reason to quash the assessment order on that ground.