SOHANRAJ SINGVI Vs. COMMISSIONER OF TAXES

JUDGEMENT

(1.) THIS case comes to this Court on a reference under Section 32(4) of the Assam Sales Tax Act, 1947, hereinafter called the Act. The Petitioner -Assessee was assessed to sales tax by the Superintendent of Taxes by his order dated 5 -4 -1962 after duo notice to him as required under the law. It so happened that on 9 -1 -1962 two Inspectors of Taxes made a surprise visit to his shop and tried to take possession of the credit account books, apparently perhaps there was some information that his account books were not kept in a proper order. The Petitioner was absent at the time and when he returned made a row with the officers concerned challenging their authority, and it is said that the books of account were taken away from the possession of the officers and later on concealed and not made available to the department when they, asked for the books to be produced. The Superintendent of Taxes after having rejected the statements of account, which were produced before him, gave a notice to the Petitioner on 3 -3 -1962 mentioning about the visit of the Inspectors to his shop for the purpose of seizing the accounts, and also asked him to show cause against various allegations and informations which were at that time available to the Superintendent after the books of accounts had been produced by the Petitioner. In due course, on 9 -3 -1962 the Petitioner submitted his explanation, which was taken into consideration by the Superintendent of Taxes and was disbelieved and the assessment followed on 5 -4 -1962, as mentioned above. This is the order which is now being questioned before us. The Petitioner had taken the matter in appeal before the Assistant Commissioner of Taxes who rejected the same and he met with the same fate before the Board of Revenue. He made an application to the Board of Revenue for reference of the case on the question of law propounded by him to that Court, and the Board rejected such an application. Faced with that position, he came before this Court for reference under Section 32(4) of the Act and this Court framed the following question after hearing the parties:

(2.) MR . Bhattacharjee, who appears on be half of the Assessee, submits that this order being an order under Section 17(3) of the Act, the Superintendent of Taxes was precluded from invoking the provisions of Section 17(4) in making the assessment as a best judgment assessment under that provision. He further submits that in any view of the matter, there was no material on record except surmises and conjectures on which this order was passed and as such a question of law emerged and he submits that it should be answered in his favour.

(3.) MR . Bhattacharjee contends that in view of the fact that the Board stated the case as being one under Section 17(3), the department, or at any rate the learned Advocate General, is precluded from urging that this was an order under Section 17(4). We are unable to agree with Mr. Bhattacharjee that it is not open to us to interpret the order and come to our own conclusion on law whether this order comes within the purview of Section 17(3) or Section 17(4) of the Act. We are satisfied that this is an order which comes under Section 17(4) although the proceedings opened under Section 17(3) after compliance with the various Sub -sections; but after having failed to come to a conclusion in the way it could be clone under Section 17(3), there was no bar in law for the officer to invoke the aid of Section 17(4) and dispose of the assessment in the way he did. This conclusion flows from the scheme of the Section 17.