HARCHARAN SINGH Vs. ASSESSING AUTHORITY

JUDGEMENT

(1.) THIS writ petition is directed against an order passed by the Assessing Authority, Jammu, imposing a tax of Rs. 28,584.09 and a penalty of Rs. 28,000/ - on the petitioner under the provisions of Jammu and Kashmir General Sales Tax Act, 1962 (hereinafter referred to as the Act.

(2.) THE petitioner is the sole proprietor of and caries on business under the name of M/S Everest Industrial Corporation, Jammu. The firm is registered as a retail and wholesale dealer. On behalf of the firm, the petitioner did not file his return under the Act for the accounting year 1969 -70 within the prescribed period. Under Rule 15(C) of the Jammu and Kashmir General Sales Tax Rules, 1962 (shortly called "the Rules) a registered dealer is required to furnish his return within sixty days from the expiry of each year. On 30 -9 -1970, the Assessing Authority, Jammu, issued a notice (annexure RB to the reply affidavit) to the petitioner inviting his attention to the default committed by him and required him to produce his account books on 16 -10 -1970 adding that in the event of his failure to comply with the notice the Assessing Authority will proceed to make the assessment under section 7(5) of the Act to the best of his judgment without further reference to him. The notice was served personally on the petitioner on 6 -10 -1970. In response to this notice the petitioner filed the returns for the relevant year in these terms: Sale of agriculture implements (non taxable) Rs. 4,12,628.48 Sale of conduit pipes (non -taxable) Rs. 7,022.08 Sale of conduit pipes (taxable) Rs. 9,326.20 Sales Tax paid Rs. 637.80

(3.) UPON scrutiny the Assessing Authority, it appears, did not feel satisfied about the genuiness of the statements made in the return. On 18 -12 -1970 the Assessing Authority made an order in presence of the petitioner directing him to produce his evidence in support of the return on 19 -1 -1971. The petitioner alleges that the date so indicated in the order has been inserted therein subsequently without any notice to him adding that actually what he was told was that a fresh summons will be sent to him indicating the date and place when and where he should produce his evidence. On 19 -1 -1971 the petitioner was not, however, present. Accordingly the Assessing Authority, so says the Reply affidavit, directed an Inspector under him namely Mr. M.L. Gupta to verify if the manufacture and sales of agriculture implements was genuine. The Inspector, the reply affidavit further states, submitted his report on 20 -2 -1971, which falsified the statement returned by the petitioner. Assessing Authority, the reply affidavit goes on to state, issued a notice (Annexure RA to the reply affidavit) on 23 -2 -1971 requiring the petitioner to appear before him on 19 -3 -1971 and produce proof in support of the alleged manufacture and sale of agricultural implements by him adding further that in the case of his failure to show cause, the sales shall be assessed at 7% and further action under section 17(e) of the Jammu and Kashmir General Sales Tax Act for concealing the particulars of the turnover shall be taken. The petitioner, the reply affidavit continues to state, refused to receive the notice which was therefore pasted on his business premises on 25 -2 -1971 but he did not comply with this notice nor also appeared before the Assessing Authority Even so, the Assessing Authority, the Reply affidavit also states, issued another notice on 31 -3 -1971 requiring the petitioner to do the needful on 6 -4 -1971 but the notice met the same fate as the one issued before. By its order dated 8 -5 -1971 the Assessing Authority, therefore, concludes the reply affidavit, made an assessment and imposed a tax of Rs. 28,584.03 on the petitioner and also imposed a penalty of Rs. 28,000/ -on him. The petitioner alleges that the aforesaid notices were never in fact issued much less delivered to or received by him or even pasted on his premises. He has filed this writ petition and challenged the order as one without jurisdiction.