Decided on March 05,1984

Assistant Commercial Taxes Appellant
Delight Steel Furniture Respondents


S.C.AGRAWAL, J. - (1.)THE Board of Revenue has referred the following question for the opinion of this Court:
Whether, under the facts and circumstances of the case, it was necessary to issue a written notice to the assessee while passing order under Section 10 of the Act when the assessee had not filed any return under Section 7 of the Act read with Rule 25 ?

(2.)THE facts, briefly stated, are as under :
M/s. Delight Steel Furniture, Jaipur (hereinafter referred to as the assessee) carries on business at Jaipur and is registered as a dealer under the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as the Act). In respect of the assessment year 1963 -64, the assessee did not submit any return. The assessing authority made a best judgment assessment after estimating the gross turnover as well as the taxable turnover of the assessee at Rs. 22,000. The assessing authority also imposed a penalty of Rs. 1,000 under Section 16(1)(c) and a penalty of Rs. 50 under Section 16(1)(d) of the Act. The aforesaid order of the assessing authority was upheld in appeal by the Deputy Commissioner (Appeals). The Board of Revenue, in revision, set aside the order of the assessing authority as well as the Deputy Commissioner (Appeals) on the view that there was nothing on the record to show that notice under Section 10(1)(b) of the Act had been given to the assessee. According to the learned Member of the Board of Revenue, Section 10(1)(b) makes it obligatory that the assessee shall be given a reasonable opportunity of being heard before an assessment is made to the best of his judgment by the assessing authority and, since notice under Section 10(1 )(b) had not been served on the assessee before making the assessment according to the best of his judgment, the said assessment made by the assessing authority could not be upheld. The learned Member of the Board of Revenue, therefore, set aside the orders of the assessing authority and the Deputy Commissioner (Appeals). The department filed an application before the Board of Revenue for making a reference to this Court under Section 16(1) of the Act, but, no orders were passed on the said application within 180 days. The department, therefore, approached this Court under Section 15(3A) of the Act. By its order dated 1st February; 1971, this Court directed the Board of Revenue to refer the question mentioned above to this Court. Thereupon, the Board of Revenue has referred the above question to this Court.

We have heard Shri G.S. Bapna, the learned counsel for the department. The assessee has not appeared even though duly served.

(3.)SHRI Bapna has submitted that for the purpose of making a best judgment assessment under Section 10 of the Act it is not obligatory for the assessing authority to issue a notice. In this connection, Shri Bapna has invited our attention to the provision contained in Section 10 of the Act. The provisions regarding best judgment assessment are contained in Section 10(1)(b) of the Act and, at the relevant time, the said provisions read as under :
(b) If no return has been submitted by the dealer under Sub -section (1) of Section 7 within the period prescribed in that behalf, or if any return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such inquiry as he considers necessary, assess the tax for the previous year to the best of his judgment: Provided that before taking action under this Sub -section, the dealer shall be given a reasonable opportunity of proving the correctness of any return submitted by him.

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