- (1.) THIS is a writ petition by one Brij Lal Suri under Article 226 of the Constitution and it is directed against the Sales Tax Officer, Dehra Dun. The petitioner is the karta of a joint Hindu family firm carrying on the business of extraction and supply of minerals under the name and style of the Northern India Marketing Association at Dehra Dun. The petitioner filed a return under section 7(1) of the U.P. Sales Tax Act, 1948, for the year ending 31st March, 1954, declaring a turnover of Rs. 1,93,307-1-9. On 25th August, 1954, the petitioner's counsel asked the Sales Tax Officer to given him a date for producing his account books. THIS opportunity was allowed to the petitioner and the account books were produced by him on 28th September, 1954. Thereafter the following assessment order, purporting to be an order under 7(2) of the Act, was passed by the Sales Tax Office, Dehra Dun, on 15th November, 1954 : "Messrs. Northern India Lime Marketing Association, Dehra Dun are paying sale tax on previous years' basis. They had filed a return under section 7(1) for the year ending 31st March 1954. Their accounts were finally checked on 28th September, 1954. The account books produced before me were : a sales register, ledger and bill books. The books were scrutinised and signed. Some enquiries were also made from other departments. The enquiries were completed on 6th November, 1954. They had registered under section 8A for 1953-54 and had realised Rs. 3,020-5-9 as sales tax in that year.
(2.) ACCORDING to the return submitted, they have shown a total turnover of Rs. 1,93,307-1-0. ACCORDING to account books produced before me too the sales from 1st April, 1953, to 31st March, 1954, are shown to be Rs. 1,93,307-1-0. They extract minerals and supply the same to various mills and parties. The manufacturing, transport and other expenses like wages etc. come to Rs. 1,76,266-10-3. The opening stock on 1st April, 1953, is shown to be Rs. 31,000 and closing stock on 31st March 1954, Rs. 27,000. All the goods are claimed to be sent through Messrs United Commercial Bank Ltd., Dehra Dun. The bills debited to the bank amount to Rs. 2,23,273-9-0. As there was difference in the turnover of sales shown and the amount debited by the dealer to the bank, some enquiries were made. From the enquiries made it was learnt that they had supplied goods amounting to Rs. 86,517-6-6 to Shadi Lal Sugar and General Mills Ltd., Mansurpur, during 1953-54. In the ledger they have shown the amount of goods supplied to the above mill to be Rs. 69,275-15-3 only. Similarly, the amount of goods supplied to Modinagar Factories amounts to about Rs. 59,318-12-3. In the ledger they have credited Rs. 54,785-6-6 only. It is therefore obvious that they have not shown the actual amount of sales made by them during the year 1953-54 and the turnover shown as sales is not their actual turnover. By adding about 20% for concealed sales to the turnover shown in books, their turnover for 1953-54 is estimated at Rs. 2,30,000. Sales tax on this at the rate of three pies per rupee comes to Rs. 3,593-12-0. They shall deposit Rs. 1,797-12-0 within 16 days of receipt of this order and the balance in two equal instalments of Rs. 898 each by the end of January 1955 and April 1955." The present petition was filed on 21st December, 1954, and on the same date the petitioner obtained an ad interim order restraining the opposite party, the Sales Tax Officer, Dehra Dun, from realising that portion of the assessed tax about which a demand had already been made. The relief prayed for by the petitioner is that the said order of assessment dated 15th November, 1954, be quashed by issuance of a writ of certiorari. The grounds on which the said prayer is asked for are two : (1) that the order in question is illegal and without jurisdiction on the face of it, and (2) that it has been passed against the mandatory provisions of the proviso to sub-section (3) of section 7 of the Act inasmuch as no opportunity was given to the petitioner to explain the alleged discrepancies referred to in the order of the Sales Tax Officer. Now, so far as the first ground is concerned, it had in my opinion no force. There is no doubt that the order in question purports to have been under clause (2) of section 7 of Act. That clause relates to the passing of assessment order where the assessing authority is satisfied that the returns submitted to him under sub-section (1) are correct and complete. A perusal of the entire order passed by the Sales Tax Officer in the present case shows that he was not satisfied as to the correctness of the return submitted by the petitioner. In fact, the Sales Tax Officer appears to have arrived at the conclusion that the return was incorrect. That being so, the impugned order was clearly an order under clause (3) of section 7. In the circumstance, mention of clause (2) instead of clause (3) of section 7 in the superscription of the order was apparently due to a slip of the pen. There is no doubt that a writ of certiorari will issue when the decision of an inferior court of tribunal is erroneous in law, and the error is apparent on the face of the record : Hari Vishnu v. Ahmad Ishaq (A.I.R. 1955 S.C. 233). The error in the present case however is not an error of law since it is not an error in any finding on a question of law. It is merely a clerical error. The first ground on which the order in question is assailed has therefore no force. The other ground put forward on behalf of the petitioner appears however to be well-founded. In the affidavit in reply filed by the Sales Tax Officer it is averred that on 28th September, 1954, the petitioner's counsel produced sales registers, ledger, stock register and bill books, that on checking the ledger, it was found that there was difference between the amount debited to Messrs United Commercial Bank Ltd., Dehra Dun, through which bank all the bills for sales were collected, and the amount credited in the sale account, and that the petitioner' counsel was unable to explain this difference. A rejoinder affidavit was filed by the accountant of the petitioner. He swears that it was he who had produced the books of account before the Sales Tax Officer, and that he was present both on 25th August, 1954, and 28th September, 1954, along with the petitioner's counsel before the Sales Tax Officer. He denies the averment in the counter-affidavit of the Sales Tax Officer that the petitioner's counsel was unable to explain the said difference. He swears that the true facts were that the Sales Tax Officer checked the account books of the petitioner on 28th September, 1954, and signed them, that he did not make any enquiry from the deponent or the petitioner's counsel, and that no opportunity was given subsequent to 28th September, 1954, for explaining the alleged discrepancies. It would thus appear that the contention of the Sales Tax Officer that the petitioner's counsel was unable to explain the discrepancy is disputed on behalf of the petitioner. An examination of the assessment order dated 15th November, 1954, passed by the Sales Tax Officer does not appear to support the averment in his counter-affidavit, There is no doubt that the order speaks of discrepancy between the amount of sales and the amount of bills debited to the United Commercial Bank, Dehra Dun, but there is no mention in the order that the petitioner or his counsel was asked to explain this discrepancy and that on being so asked they were unable to satisfy the Sales Tax Officer on that point. What appears from the order is that on finding the aforesaid discrepancy in the books of account of the petitioner, the Sales Tax Officer made certain enquiries which enquiries, according to his order, completed on 6th November, 1954. The order shows that it was only as a result of these enquiries that the Sales Tax Officer came to the conclusion that the petitioner had not shown the actual amount of sales made by him during the year in question, and that the turnover submitted by the petitioner was not the actual turnover. Were it a fact that the Sales Tax Officer had completed his enquiry on 28th September, 1954, on an examination of the books of account of the petitioner, there would have been no necessity of his making further enquiries. Learned counsel for the opposite party argued that the enquiries which were made by the Sales Tax Officer subsequent to 28th September, 1954, were merely made with a view to determining the amount on which the assessment order should be passed. A reference to the order in question however shows that the assessment order was not based upon the figures ascertained on the enquiries. The assessment was made by adding 20% for concealed sales to the turnover which had already been submitted by the petitioner. It follows therefore that the enquiries referred to in the order of the Sales Tax Officer were not made with a view to ascertaining whether the return submitted by the petitioner was or was not correct. In other words, it was only on 6th November, 1954, when his enquiries were completed, that the Sales Tax Officer came to the conclusion that the turnover submitted by the petitioner was incorrect. Had the Sales Tax Officer arrived at that conclusion on 28th September, 1954, there would have been no question of his embarking on any enquiries, for, in that case, he could have passed an order under section 7(3) of the Act on that very date (28th September, 1954). In view of these facts and circumstances, I accept the contention put forward on behalf of the petitioner that the assessment order in question was passed without having given an opportunity of being heard to the petitioner. This opportunity that Sales Tax Officer was bound to give to the petitioner under the mandatory provisions of the proviso to sub-section (3) of section 7 of the Act. The Sales Tax Officer therefore acted illegally in the exercise of his jurisdiction in passing the impugned order since the order was passed in violation of the principles of natural justice embodied in the said proviso. The petitioner is therefore entitled to a writ of certiorari for quashing that order. The Sales Tax Officer will no doubt make the assessment afresh in accordance with the provisions of the law.
(3.) THE petition is allowed with costs. Let a writ in the nature of certiorari issue quashing the order in question of the Sales Tax Officer dated 15th November, 1954. Petition allowed.;