ASWINI KUMAR DUTT Vs. COMMERCIAL TAX OFFICER MIDNAPORE

JUDGEMENT

(1.) Civil Revision No. 2419 of 1955. This is an application under Article 226 of the Constitution for a Writ in the nature of Certiorari for quashing an order passed on review of an assessment made under the provisions of the Bengal Finance (Sales-tax) Act and a notice of demand issued in respect thereof and also for a Writ in the nature of Mandamus directing the opposite parties to forbear from giving effect to the said review order and the said notice of demand.

(2.) The petitioner is a dealer in various commodities including cigarettes and he is registered under the Bengal Finance (Sales-tax) Act. In course of his business us dealer in cigarettes the petitioner sells cigarettes to dealers outside West Bengal and particularly to dealers in Purulia and Manbazar which were in the State of Bihar at the relevant time. One Mahalakshmi Transport Co. carries the goods which are so sold outside the State of West Bengal for freight by bus and they issue printed receipts for such carriage. The petitioner maintains his accounts in accordance with the Bengali Calendar, that is to say, from the 1st day of Baisakh to the last day of Chaitra and according to his certificate of registration the petitioner has to file returns for every quarter of the year with reference to the Bengali Calendar year. In respect of the year 1359 B.s. corresponding to the period commencing on the 14th April, 1952 and ending on the 13th April, 1953 the petitioner did not file within time the quarterly returns in the office of the Commercial Tax Officer, Midnapore. Thereupon the Commercial Tax Officer issued a notice in Form No. VI under the provisions of Rule 49 of the Bengal Sales-tax Rules calling upon the petitioner to produce certain accounts and documents in connection with the petitioner's sales in respect of the said year. Pursuant to the said notice the petitioner's representative and the petitioner's lawyer one Sri B. B. Das appeared before the Commercial Tax Officer of Midnapore on the 26th February, 1954 with the petitioner's books of accounts and other documents. The said Commercial Tax Officer verified the gross sales with the books of accounts and further verified the claims for deduction made by the petitioner in respect of the sales to registered dealers and despatch to their addresses outside West Bengal, and on being satisfied about their correctness, the Commercial Tax Officer allowed deductions which had been claimed by the petitioner and made an order of assessment on the 26th February, 1954. On 14th July, 1954, another Commercial Tax Officer came to the petitioner's shop and demanded production of the petitioner's books and other documents in respect of the said year 1359 B.S. and upon production of the said accounts and documents the said Officer seized and took away two flat files containing particulars of sales to places outside West Bengal and the corresponding receipts granted by Messrs. Mahalukshmi Transport Co. Ltd. in respect of the goods carried by the said Company to places outside West Bengal. Thereafter on 1st June, 1955 a Review Case being No. 2 of 1055-56 relating to the said year of 1359 B.S. was started by the Commercial, Tax Officer, Midnapore, against the petitioner and a notice in Form No. IX of the Sales-tax Rules was served on the petitioner. The relevant portion of the said notice may be set out hereunder:

(3.) The petitioner received the said notice on 1st June, 1955 and he appeared before the Commercial Tax Officer on the 20th June, 1955 and it is alleged that he made some oral submissions before the said Officer, The petitioner also submitted a petition of objection and requested the Commercial Tax Officer to call Messrs. Mahalakshmi Transport Company who were responsible for the carriage of the petitioner's goods from Bankura to Consignees outside West Bengal as a witness in this case. The said prayer of the petitioner however was refused. The petitioner also asked for time on the ground that some of the books the production of which was necessary in connection with the assessment proceeding were lying in the custody of the Court of the Subordinate Judge of Bankura in connection with a civil suit filed by the petitioner but no time was however allowed. The Commercial Tax Officer-rejected the petitioner's objection which he has filed before the Officer on that day and the Officer passed an order on the 23rd June, 1955 making a fresh assessment on the petitioner in respect of the said year 1359 B.S. disallowing the claim for deduction in respect of the goods sold outside West Bengal amounting to Rs. 6,56,077-11-9 and assessed the petitioner to tax at the sum of Rs. 34,625-0-3. Out of the said amount the petitioner has paid Rs. 1,500/- and Rs. 3,755-4-0 and the balance outstanding is Rs. 19,369-12-3. The petitioner has in the petition challenged the validity of the said order dated the 23rd June. 1955 reviewing the assessment for the year 1359 B.S. on grounds set out in paragraphs 19 to 24 of the petition.