DALMIYA AND CO Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE facts of the case will appear from the petition and the order of the Commissioner of Commercial Taxes dated 29th February, 1952. The petitioners failed to submit returns and so notice in From VI was issued upon them to produce their books of accounts etc. for which sufficient time was granted by the Commercial Tax Officer deputed under Sales Tax Rule 50, but the petitioners failed to produce their books of accounts or even to submit their returns in spite of several adjournments covering a period of more than one year. Ultimately the Commercial Tax Officer did not grant any further time, but submitted the case to the Assistant Commissioner for orders. The Assistant Commissioner also rejected the petitioners' prayer for a further adjourment and made a best judgment assessment under Section 11 of the Bengal Finance (Sales Tax) Act, 1941, in an ex parte manner. The learned pleader for the petitioners contends that the petitioners were not given reasonable opportunity of being heard as all the notices immediately preceding the assessment were issued by the Commercial Tax Officer directing the petitioners to produce their books of accounts before himself and also to make any objections before him. It is obvious that the petitioners were given a reasonable opportunity of being heard by the Commercial Tax Officer, but there is nothing to show that they were given such an opportunity by the Assistant Commissioner who made the actual assessment. The wording of the relevant section is quite clear on the point that no assessment under this section may be made unless the dealer is given a reasonable opportunity of being heard by the Commissioner (which includes an officer to whom powers of assessment are delegated by the Commissioner). In the present case, after the record had been submitted to the Assistant Commissioner it was his obvious duty under Section 11 to issue a notice on the petitioners asking them to appear and made their submission, if any, regarding the proposed assessment before he proceeded to make a best judgment assessment under Section 11. I am afraid some amount of confusion seems to prevail regarding this particular matter in the Directorate of Commercial Taxes. The provisions of Section 11 are mandatory and every dealer who is assessed under Section 11 has a right of being given a reasonable opportunity of being heard by the officer who makes the assessment. On this ground alone this petition must be allowed.

(2.) IT has also been pointed out by the learned pleader for the petitioners that the assessment in question appears to have been very arbitrary as compared to those for the immediately preceding years. However, I need not go into that here, but I would advise the learned Commissioners to make a fresh assessment after giving a proper hearing to the petitioners and also following carefully the principles laid down in the law for a best judgment assessment. The petition is allowed and the case is sent back to the Commissioner of Commercial Taxes.