BRUGUMALLA VENKATAPPAIAH SON AND CO Vs. COMMERCIAL TAX OFFICER NO 1 GUNTUR
LAWS(APH)-1971-7-23
HIGH COURT OF ANDHRA PRADESH
Decided on July 16,1971

BRUGUMALLA VENKATAPPAIAH SON AND CO Appellant
VERSUS
COMMERCIAL TAX OFFICER NO 1 GUNTUR Respondents

JUDGEMENT

- (1.) THIS writ petition is for issue of a writ of prohibition or any other appropriate writ or order or direction interdicting the respondent from proceeding further in pursuance of the Notice G. I. No. 2717/69-70/2 dated 23rd October, 1969.
(2.) THE petitioner M/s. Brugumalla Venkatappaiah Son and Co. , who are dealers in copra have submitted returns of the turnover for the months of April, May, June, July and August, 1969. In those returns, according to the respondent, certain turnovers which ought to have been included have not been included. The respondent, therefore, proposed to assess the petitioner for the period 1st April, 1969, to 31st August, 1969, on the turnover of Rs. 8,575. 11 as well as at 3 per cent. under the Andhra Pradesh General Sales Tax Act and called upon the petitioner to file their objections, if any, against the proposed assessment on 29th October, 1969. Simultaneously with the above, the impugned notice was also issued bringing to the notice of the petitioner that the returns filed by him are incorrect and that the failure to submit correct returns consisted an offence under section 30 (3) (a) of the Andhra Pradesh General Sales Tax Act, 1957, and further calling upon him to either accept composition of the offence under section 32 of the Act or face a prosecution without further notice. Section 32 of the Act reads as follows : " The prescribed authority may accept from any person who has committed or is reasonably suspected of having committed an offence under this Act, by way of composition of such offence - (a) where the offence consists of the failure to pay, or the evasion of, any tax recoverable under this Act, in addition to the tax so recoverable, a sum of money not exceeding one thousand rupees or double the amount of the tax recoverable, whichever is greater, and (b) in other cases a sum of money not exceeding one thousand rupees. " It may be pointed out that there is no statutory obligation upon the commercial tax authorities to make any offer to compound any offence punishable under the Act. The prescribed authority is only empowered by section 32 of the Act to accept from any person who has committed or is reasonably suspected of having committed an offence punishable under this Act, by way of composition of such offence, certain sums specified in clauses (a) and (b) of section 32 of the Act. That presupposes an offer by a person who has committed an offence before there is an acceptance by the prescribed authority. The statute does not contemplate an offer to proceed from the prescribed authority for composition of an offence.
(3.) THAT apart, the composition of an offence could be with reference to a person who has committed or is reasonably suspected of having committed an offence under the Act. The allegation of the respondent as per the Notice G. I. No. 2717/69-70/1 dated 23rd October, 1969, is that the petitioner, who is the dealer, has failed to disclose certain turnovers in the returns submitted by him. The dealer is given a chance to show cause that the returns submitted by him are correct and the turnover proposed to be included in the said return for the purpose of provisional assessment cannot be validly included. It is only after hearing the objections of the petitioner, could it be positively held that the petitioner had submitted an incorrect return. Before the completion of enquiry, while the respondent may suspect that the petitioner has not submitted a correct return of the turnover, it cannot beheld that the Commercial Tax Officer, Guntur, has a reasonable suspicion. Mere suspicion cannot be equated with reasonable suspicion. Only the result of an enquiry could form the basis for any reasonable suspicion that the petitioner has committed an offence, which he may or may not agree to be compounded in accordance with section 32 of the Act. Until an enquiry, pursuant to the Notice G. I. No. 2717/69-70/1 is completed, in my opinion, the Commercial Tax Officer cannot entertain a reasonable suspicion that the petitioner has committed an offence. Hence the question of asking him to choose either to face a prosecution or agree to the composition of an offence, does not arise. The impugned notice is, therefore, premature.;


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