MOHATTA BROTHERS Vs. ADDITIONAL MEMBERS BOARD OF REVENUE

JUDGEMENT

(1.) In this reference under the Central Sales Tax Act, 1956, read with Section 21(3) of the Bengal Finance (Sales Tax) Act, 1941, we are concerned with two questions which have been referred to this court as directed by this court. The questions are as follows :

(2.) We are concerned in this case with the assessment under the Central Sales Tax Act for the dealer's assessment in respect of four quarters ending with Kartick Badi 15, 2016 S. Y. The Commercial Tax Officer, Esplanade Charges, Commercial Tax Directorate, West Bengal, issued a notice on 19th January, 1960, in form No. 3 fixing 3rd May, 1960, as the date of hearing and asking the dealer to produce books of account for the said period of four quarters for the purpose of assessment as the dealer had failed to furnish quarterly returns for the said period. On 3rd May, 1960, the case was adjourned to 10th August, 1960. On 10th August, 1960, the dealer's lawyer appeared and prayed for time as the books of account were not fully adjusted. The case was, therefore, adjourned to 18th August, 1960. The dealer's lawyer appeared on the date and again prayed for time on the same ground. The Commercial Tax Officer, Esplanade Charge, did not grant the dealer further time and proceeded to assess the dealer ex park to the best of his judgment. In his assessment under the State Act for the same period the dealer was allowed exemption under Section 5(2)(a)(v) of the State Act for Rs. 7,20,000 being inter-State sales. Hence the Commercial Tax Officer by his order dated 23rd August, 1960, assessed the taxable turnover at Rs. 7,20,000 and charged the same to tax at 7 per cent. A penalty of Rs. 500 was also imposed for non-submission of returns. The dealer then filed an appeal before the Assistant Commissioner, Commercial Taxes, Chowringhee Circle, against the assessment order. The Assistant Commissioner by his order dated 25th May, 1960, reduced the taxable turnover to Rs. 5,00,000 keeping in view the fact that the dealer's gross turnover and taxable turnover under the State Act was reduced in appeal and charged 50 per cent of the said amount at 7 per cent and the rest 50 per cent at 1 per cent. The order for penalty assessment was not interfered with. Thereafter, the dealer filed petition for revision before the Commissioner, Commercial Taxes, West Bengal. The Additional Commissioner, Commercial Taxes, West Bengal, who dealt with the revision petition for reasons mentioned in his order dated 22nd January, 1964, rejected the said petition and confirmed the order appealed from. The Additional Commissioner of Commercial Taxes, inter alia, decided that the estimate of the taxable turnover by the Assistant Commissioner was reasonable and the contention of the dealer that the sales were to registered dealers was not substantiated. The dealer then filed a revision petition before the Board of Revenue. At the time of hearing before the Additional Member, Board of Revenue, who dealt with the case, it was urged, among other points, that both before the Assistant Commissioner and the Additional Commissioner mention had been made about the declaration forms which had been enclosed with the petition of appeal. Nevertheless, neither the Assistant Commissioner nor the Additional Commissioner mentioned a word, according to the assessee, about the said grounds or forms as to whether they accepted or rejected these. It was, therefore, urged that their orders were defective under the law and on the principles of natural justice should be set aside, and the case remanded for reassessment. The Additional Member, Board of Revenue, observed as follows: I find that it is a fact that the declaration forms were filed with the petition of appeal and they are in fact in the appeal file of the Assistant Commissioner. I have also seen them myself. I have also found that it is a fact that both the Additional Commissioner and the Assistant Commissioner failed to discuss the grounds dealing with the said declaration forms and record their decision regarding them. However, I have already held in Case No. 240 of 1963 decided by me on 17th October, 1966, that the law does not permit acceptance of such declaration forms at a stage later than at the time of assessment. This was in regard to declaration forms under the Bengal Finance (Sales Tax) Act, 1941, but the same principle applies in this case also because Rule 4(4) of the Central Sales Tax (West Bengal) Rules, 1958, dealing with declaration in form C also lays down that the selling dealer concerned shall produce at the time of assessment both portions of the declaration before the prescribed authority, i.e., the Commercial Tax Officer in this case. Admittedly, the said declaration forms were not produced at the time of assessment as required under Rule 4(4) and, therefore, the law does not permit their acceptance at a later stage. In the result it is clear that neither the Assistant Commissioner nor the Additional Commissioner was empowered under the law to accept the declaration forms in question. In my view, therefore, the merits of the case are not affected because they did not record their decision on the grounds dealing with these declaration forms. Furthermore, though the declaration forms are mentioned in the grounds I am not convinced that the said grounds were specifically urged before the said officer. This point is, therefore, rejected.

(3.) The Additional Member, Board of Revenue, by his order dated 21st December, 1966, rejected the revision petition. Thereafter, the dealer filed an application for reference to this court which was rejected, and by an order made by this court the questions mentioned were directed to be referred. We are concerned in this case with the question whether the declaration forms which were admittedly filed by the dealer should have been considered by the Assistant Commissioner or the Additional Commissioner.