RAJESH MAHENDI RATTA Vs. COMMISSIONER OF TAXES ASSAM

JUDGEMENT

(1.) BY this application under article 226 of the Constitution, the petitioner prays for setting aside and quashing the impugned notice dated April 29, 1996 (annexure III) passed by the Deputy Commissioner of Taxes, Tinsukia Zone, Tinsukia.

(2.) I have heard Dr. A. K. Saraf, learned Senior Counsel for the petitioner and learned Government Advocate, Assam, appearing for the State respondents. The petitioner is a proprietor of Sardar Brick Fields, which runs a small brick field at Chabua in the district of Tinsukia. The assessment of the petitioner for the period ending September 30, 1988 under the Assam Finance (Sales Tax) Act, 1956 was completed by the respondent No. 3, Superintendent of Taxes, Tinsukia on April 25, 1991 under section 9 (4) of the Assam Finance (Sales Tax) Act, 1956, summarily on the basis of the report of the Inspector of Taxes and the turnover of the petitioner was determined summarily to be Rs. 79,000 and accordingly a sum of Rs. 5,168 was determined as tax payable by the petitioner and a sum of Rs. 1,899 was levied as interest. The order of assessment is at annexure I. Thereafter respondent No. 2, the Deputy Commissioner of Taxes, Tinsukia Zone, issued a notice dated February 5, 1996 purported to act under section 36 (1) read with section 74 (3) of the Assam General Sales Tax Act, 1993, directed the petitioner to appear before him on March 25, 1996 and to show cause why the assessment for the period ending September 30, 1988 should not be cancelled and fresh assessment should not be made. Annexure II is the notice. The petitioner accordingly appeared before the Deputy Commissioner of Taxes through his representative and stated that there was no concealment of turnover and that the difference in the stock of the bricks was due to non-consideration of the quantity of wastage, as well as bricks consumed for brick kiln, labour quarters and roads. The Deputy Commissioner of Taxes passed the order dated April 29, 1996 (annexure III) cancelling the assessment order dated April 25, 1991 being erroneous in so far as it was prejudicial to the interest of revenue and directed the Superintendent of Taxes to make fresh assessment by adding the turnover of Rs. 2,56,300 to the taxable turnover. Being aggrieved, the petitioner has come before this Court in the instant writ petition. Dr. Saraf, learned Senior Counsel for the petitioner, submits that the impugned order dated April 29, 1996 is illegal and without jurisdiction inasmuch as, suo motu revisional proceeding cannot be initiated by making fishing and roving enquiries into the business affairs of the petitioner, and the Deputy Commissioner of Taxes, respondent No. 2 has no power to substitute his own judgment for that of the assessing officer when assessment was completed summarily to the best judgment of the assessing officer on the basis of the local enquiry made by the Inspector of Taxes. The relevant portion of section 36 (1) of the Assam General Sales Tax Act, 1993 reads as under :

(3.) IN view of the above decision, the impugned notice dated February 5, 1996 (annexure II) and the suo motu revisional order dated April 29, 1996 (annexure III) are set aside and quashed. This writ petition is allowed. No costs. Writ petition allowed.