MITHOO LABS I Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THE petitioner who is registered sales tax dealer and deals in inter-State sales, has filed this petition under Articles 226 and 227 of the Constitution of India, in the matter of Section 39 of the M. P. General Sales Tax Act with a prayer to quash the order dated 28th January, 1982, passed by respondent No. 3 (annexure-P3), the revisional order passed by respondent No. 2 dated 31st May, 1982 (annexure-P5), and the subsequent communication dated 28th April, 1983, issued by respondent No. 1 (exhibit-P7) under Section 39 (1-A) and the subsequent communication dated 25th August, 1983, issued by respondent No. 1 under Section 39 (1) of the M. P. General Sales Tax Act (annexure-P9), being illegal on the ground that, apart from not giving a chance of hearing by respondent No. 1 and respondent No. 2, they have failed to exercise the jurisdiction in accordance with law, despite there being material available on record, which has resulted in failure of justice as the petitioner has not been granted exemption, vide registration certificate (annexure-P1) issued by the Industrial Department to the petitioner as a small-scale industry for the period under dispute, i. e. , 1st April, 1978, to 31st March, 1979, nor has he been properly assessed under the Central Sales Tax Act for the inter-State trade as for such inter-State sales he ought to have been assessed separately under Section 18 (4) (d) of the M. P. General Sales Tax Act.

(2.) ACCORDING to the petitioner, which is a partnership firm, carries on business of manufacturing and sale of ayurvedic medicines at Indore, is duly registered as a dealer under the provisions of the M. P. General Sales Tax Act as also the Central Sales Tax Act. The petition relates to the assessment of the petitioner-firm for the period 1st April, 1978, to 31st March, 1979. The petitioner-firm has been registered with the Industries Department as a small-scale industry, vide annexure-P1, on the basis of a notification dated 25th November, 1969, issued in exercise of the powers conferred by Section 12 of the M. P. General Sales Tax Act, 1958, whereby the State Government has exempted the whole class of dealers mentioned in column (1) of the Schedule, in respect of the class of goods specified in column (2) from the payment of sales tax subject to the restrictions and conditions specified in the corresponding entry in column (4) thereof for a period specified in column (3) of the said Schedule (annexure P2 ). The said notification has been amended, vide Notification No. A-3-12/78-V/st dated 25th November, 1978, published in [1978] 11 VKN 72. By the said amendment in column 4 (4) of the said notification, exhibit-P2, the words "or at any time before assessment" have been added.

(3.) FURTHER, according to the petitioner, the Sales Tax Officer, Flying Squad, Indore (respondent No. 3), passed ex parte assessment for the aforesaid period, vide his order, annexure-P3, on the basis of the information collected from the books of account and other documents seized in the raid conducted by the sales tax department on 9th January, 1979, at the premises of the petitioner. Further, according to the petitioner, he had supplied further information to the assessing authority during the scrutiny proceedings, which included information relating to inter-State sales as also sales under declaration as contemplated by the notification, annexure-P2. Further, according to the petitioner, the proceedings before the assessing authority were being attended to by the son of the partner of the petitioner, who is illiterate and uneducated along with his tax practitioner. However, the main partner Mr. Balmukund Panchal could not devote any time to the hearing and hence the proceedings could not be properly attended to though the petitioner was given 16 adjournments from time to time about which the learned counsel for the petitioner frankly submitted that he cannot make any grievance on that count.