JAIPUR SPINNING AND WEAVING MILLS LTD Vs. STATE

JUDGEMENT

(1.) THIS is a revision against the order of the Sales Tax Officer, Jaipur dated 29-8-1963. The brief facts of the case are that the petitioners were served with a notice under sec. 12 Rajasthan Sales Tax Act as to why the sale proceeds of packing materials estimated at Rs. 24,649. 23 Np. used in the sale of yarn bales within the State should not be taxed as, they had escaped levy of tax in the regular assessment. The petitioners raised a preliminary objection that in sec. 12 it is provided that notice shall be served on the assessee in the prescribed form and since no such notice has been prescribed by the Government - therefore the very basis on which the proceedings under this section can be founded is missing and the sec. 12 will remain inoperative until such time the notice is prescribed thereunder. THIS objection has been rejected by the learned Sales Tax Officer, Jaipur vide his impugned order dated 29-8-63. Aggrieved by this order of the Sales Tax Officer, Jaipur the petitioners have come in revision before the Board of Revenue.

(2.) THE learned counsel, for the petitioner has argued that notice on form S. T. 12 has been issued to him which is not a proper notice for initiating proceedings. He has argued that notice in form S. T. 12 is issued only when parties are summoned to appear and/or to produce documents when the proceedings are already pending before the assessing authority. He has argued, that sec. 12 of the Rajasthan Sales Tax Act has been amended and the words "in the prescribed form" have been added after the word "notice", but the Sales Tax Department has not prescribed any notice for, issuing in, compliance with the amendment to sec. 12 of the Rajasthan Sales Tax Act. He has argued that any, notice issued under form S. T. 12 is not a valid notice and a valid notice is imperative before any proceedings or action, can be taken against the assessee. He has argued, that sec. 34 of the Income-tax Act is analogus to sec. 12 of the Rajasthan Sales Tax Act. He has cited Income-tax Reports 1959, page 388 according to which it has been held by their lordships of the Supreme Court of India in the case of Y. Narayana Chetty vs. Income Tax Officer, Nellore that the notice prescribed by sec. 34 of the Income-Tax Act for the purpose of initiating re-assessment proceedings is not a mere procedural requirement; the service of the prescribed notice on the assessee is a condition precedent to the validity of any re-assessment made under sec. 34. If no notice is issued or if the notice issued is shown to be invalid then the proceedings taken by the Income-tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. THE learned counsel for the petitioner has further argued that petitioner appeared before the Sales Tax Officer in compliance to an invalid notice does not amount to waiver on part of the petitioner and in this connection he has cited Income Tax Reports 1956, page 484 according to which their lordship of Patna High Court have held in the case of Commissioner of Income tax, Bihar and Orissa versus Maharaja Pratap Singh Bahadur that in a case where an Income-tax Officer issued notice under sec. 34 without complying with the conditions laid down in the proviso to sec. 34 as re-enacted on 8-9-1948, for taking action under the section; the assessee submitted a return under protest; it was held that as these conditions go to the very root of the jurisdiction of the Income-tax Officer, waiver on the part of the assessee cannot confer jurisdiction on the Income-tax Officer if the statutory conditions are not complied with.