G.N. Ray, J. - (1.) This appeal arises out of the judgment passed in Civil Rule No. 5064(W) of 1969. The said civil rule arises out of an application under Article 226 of the Constitution of India made by the respondent in the present appeal, namely, the Paper Products Ltd., a company incorporated under the Companies Act. The said respondent, Paper Products Ltd., challenged the assessment order dated 3rd June, 1965, passed by the Commercial Tax Officer, Sealdah Charge, in assessment case No. 1 of 1963-64 for the fourth quarter ended on 31st July, 1962, and also the order dated 31st October, 1967, passed by the Assistant Commissioner, Commercial Taxes, Dharamtala Circle, in revision case No. 15 of 1967-68.
(2.) The case of the petitioner in the said writ petition is, inter alia, that the petitioner-company which is a public limited company registered under the Companies Act is a dealer registered under the Bengal Finance (Sales Tax) Act, 1941, having a registration certificate No. SL 2592A. The said company deals in paper containers which are sold mainly to bulk consumers majority of whom are registered dealers under the said Bengal Finance (Sales Tax) Act. The petitioner contends that for the assessment year 1st August, 1961, to 31st July, 1962, the petitioner's sale figures were as follows : Gross turnover ... Rs. 4,07,167.37 (including sales tax realised ... Rs. 4,094.60) Taxable turnover ... Rs. 1,00,990.00 Tax payable ... Rs. 5,049 50 Tax paid ... Rs. 5,125.25
(3.) The petitioner-company has also contended that for the previous years the assessments were made on the basis of bills prepared by the Calcutta office supported by the balance sheet and profit and loss of the company. For the assessment year 1961-62, 6th April, 1965, was fixed for hearing the assessment case and like previous years the company produced the bills prepared by the Calcutta office and the profit and loss account and balance sheet showing a gross sale as Rs. 4,02,067.67. It is the case of the petitioner-company that the representative of the petitioner-company had explained before the Commercial Tax Officer that the discrepancy between the return figures and profit and loss figure was due to the inclusion of taxes realised by the Calcutta office amounting to Rs. 5,094.60. As the Commercial Tax Officer had intended to examine all the books of account of the company which had been kept and maintained at the petitioner-company's New Delhi office, the hearing was adjourned to 3rd June, 1965. As the petitioner's accountant was indisposed, the petitioner by its letter dated 3rd June, 1965, prayed for adjournment of the date of hearing. But such prayer was not allowed and respondent No. 2 made an ex parte assessment to the best of his judgment on the said date, viz., 3rd June, 1965. The Commercial Tax Officer had come to the finding that the gross turnover for the assessment year in question was Rs. 6,40,000 and not Rs. 4,07,167.37 as alleged by the petitioner-company and the taxable turnover was assessed by him at Rs. 3,70,431.10 in place of admitted taxable turnover at Rs. 1,00,990. Accordingly, the Commercial Tax Officer held that tax payable was Rs. 18,521.25. The said assessment order has been annexed to the writ petition being annexure B. The petitioner-company has contended in the writ petition that the company did not receive any intimation of the said assessment order and the additional demand until 20th December, 1966, when a certificate under the Public Demands Recovery Act was served on the petitioner-company. As the time for preferring an appeal against the said ex parte assessment order had expired in the meantime the petitioner-company submitted a petition on 19th May, 1967, before the Assistant Commissioner of Commercial Taxes praying for calling for the records and revise the said assessment order on his own motion. Respondent No. 1, however, did not initiate any suo motu proceeding but asked the petitioner-company to show cause as to why such petition for revising the assessment order should not be rejected as time-barred. The petitioner-company has contended in the writ petition that due to remodelling and reorganisation of the petitioner's office the said letter issued by respondent No. 1 was misplaced and did not come to the notice of the petitioner's principal officer until 21st July, 1969. The petitioner-company has stated that however the petitioner-company has paid in full the additional demand of Rs. 13,416.30 in terms of the said ex parte order of assessment, but it has been contended by the petitioner that the refusal on the part of the Assistant Commissioner, Commercial Taxes, to revise the said ex parts order was improper and had resulted in gross failure of justice to the petitioner-company. The petitioner-company has also ...contended that the application made by the petitioner-company before the Assistant Commissioner of Commercial Taxes was not properly appreciated and although the said application was made for initiating a suo motu proceeding by the Assistant Commissioner to revise the ex parte assessment order, the said Assistant Commissioner of Commercial Taxes treated the said application as a revisional application made by the petitioner-company and he rejected the said application on the footing that the same was time-barred.;