- (1.) THE facts of the cases will appear from the petitions for revision and the orders of the Additional Commissioner, Commercial Taxes, dated 6th March, 1954.
(2.) THE petitions being against analogous orders of the Additional Commissioner and the petitioners being the same in both the cases, they are taken up together for the sake of convenience. The assessment in question is in respect of the period from 14th June, 1949, to 1st August, 1950, made under section 11(2) of the Bengal Finance (Sales Tax) Act, 1941. Sub-section (2) of section 11 of the Act was amended by Act XLVIII of 1950, which came into force on the 6th November, 1950. At present the law is that if upon information which has come into his possession, the Commissioner is satisfied that any dealer who has been liable to pay tax under the Act in respect of any period but has failed to get himself registered, the Commissioner shall proceed in the prescribed manner to make a best judgment assessment of the amount of tax due from the dealer. The case for the Directorate of Commercial Taxes is that as the petitioners failed to get themselves registered, the Commissioner (in this case the Commercial Tax Officer to whom powers were delegated by the Commissioner) proceeded rightly to make a best judgment assessment under section 11(2) of the Act. But it must be remembered that at the relevant time in question the law did not require a dealer to get himself registered but only to apply for registration on failure of which the Commissioner was to proceed to make a best judgment assessment. It is admitted that the petitioners applied originally on 30th April, 1948, for registration and then again on 2nd April, 1949, while they became liable to assessment from 14th June, 1949, according to section 4(2) of the Act. It is admitted that the Commercial Tax Officer made an inordinate delay of one year and four months in granting registration and it appears from the record that instead of merely trying to find out whether the application for registration was in order, i.e., whether it was in proper form and whether necessary particulars had been furnished, the learned Commercial Tax Officer proceeded to make a lengthy inquisition about the antecedents and previous business activities, if any, of the petitioners, which he had no authority to do. This resulted in mere harassment to the petitioners and in their being assessed to tax for the period from 14th June, 1949, to 1st August, 1950, though they could not get benefit of the registration in purchasing goods without payment of tax as a registered dealer in respect of this period. In another case (Messrs Jagatamba Cloth Stores) the Board observed that though the law, viz., sections 4 and 7 of the Act laid down a particular date for the starting of liability to taxation the taxing authorities might certainly exercise their discretion when making assessment and allow some concession for delay in the issue of the registration certificate provided this was not due to the laches on the part of the dealer and that this would be justified by equity and fairness. The above remarks apply equally to the present cases, though quite apart from the question of equity and justice, in law itself the present assessment is invalid as according to section 11(2) of the Act, as it stood during the period for which assessment has been made, the failure of the dealer to get himself registered did not give jurisdiction to the Commercial Tax Officer to make an assessment under the section.
(3.) THE petitions are allowed and the orders of the Additional Commissioner set aside.;