H.K.Bose, CJ. -
(1.) This is an appeal from an order of Sinha, J., discharging a rule issued in a writ application under Article 226 of the Constitution.
(2.) The appellant is a public limited company and is a registered dealer under Bengal Finance (Sales Tax) Act, 1941. In respect of accounting year ending 31st December, 1954, the appellant submitted a return to the Commercial Tax Officer on 21st October, 1955, and in respect of the accounting year ending 31st December, 1955, the appellant submitted its return to the Commercial Tax Officer on 27th February, 1956. In the return filed on 21st October, 1955, in respect of the year ending 31st December, 1954, the gross turnover was shown to be Rs. 70,99,928-10-0 and an exemption was claimed under two headings : (i) Rs. 1,33,730-7-6 under Section 5(2)(a)(i) of the Bengal Finance (Sales Tax) Act and (2) Rs. 69,65,979-9-6 under Section 5(2)(a)(ii) of the Act and the taxable turnover was shown as Rs. 218-9-0 only for which a tax of Rs. 9-12-6 was paid. This sum of Rs. 9-12-6 was deposited in the treasury on the 2nd November, 1955. It appears that the Commercial Tax Officer by a notice dated the 22nd April, 1955, had fixed 4th August, 1955, as the date of the hearing of the appellant's assessment case for the year ending 31st December, 1954, and by this notice the appellant company was called upon to produce, amongst other documents, "written declarations of purchasing registered dealers where sales are claimed exempt from tax for having been made to such registered dealers" (Item 8). The date of hearing of the other assessment case for the year ending 31st December, 1955, was fixed as the 21st January, 1957, by a notice dated the 4th September, 1956. In this appeal we are concerned with the assessment case for the year ending 31st December, 1954.
(3.) The case of the appellant company is that after receiving the notices of the dates fixed for hearing of the assessment cases, the appellant in the 2nd week of January, 1957, started sorting its books and documents and discovered that 147 declaration forms received by the appellant from various registered dealers in respect of transactions had with them were missing and that the loss had occurred in the course of shifting the appellant's office in June, 1955. from 34, Jatindra Mohan Avenue to its present office at 13, Syed Salley Lane. The appellant thereafter made attempts to procure confirmatory letters and duplicate declaration forms from the purchasing dealers and succeeded in obtaining some duplicate forms. The Commercial Tax Officer in making the assessment has granted exemption to the extent of the amount that is covered by the duplicate declaration forms produced by the appellant, but in respect of the amount which is not covered by any declaration forms he had refused the exemption asked for. The assessment order for the accounting year ending 31st December, 1954, was made on 21/23rd November, 1957. It appears that prior to the making of the assessment order the appellant on 8th August, 1957, had made an application under Section 21A of the Bengal Finance (Sales Tax) Act, 1941, for an order summoning certain witnesses and for production of certain documents. Relevant portions of this application are set out below :-