L.N.RAY - (1.) THIS application under article 226 of the Constitution of India was filed in the Original Side of the High Court at Calcutta, being Matter No. 6012 of 1988. Upon transfer to this Tribunal under section 15 of the West Bengal Taxation Tribunal Act, 1987, it was numbered here as RN-166 (T) of 1989. The applicant challenges the legality and validity of assessment of tax, penalty and interest thereon under the Bengal Finance (Sales Tax) Act, 1941 and the Central Sales Tax Act, 1956, for the years ending June 30, 1980, 1982 and 1983 (the two Acts will be referred to hereinafter as "the 1941 Act and 1956 Act", respectively ). He also challenges the proceedings for recovery of the assessed demands.
(2.) BRIEFLY stated, the applicant's case is that he carries on a business of selling minerals under the name and style of M/s. Sri Behari Enterprises and is a registered dealer under both the said Acts. The Commercial Tax Officer arbitrarily rejected the applicant's prayer for adjournment of hearing of assessment cases and made ex parte best judgment assessments for the said periods. Appeals were preferred by the applicant against such assessment orders for the year ending June 30, 1980. Adjournment was prayed on the ground of applicant's illness, but the Assistant Commissioner of Commercial Taxes rejected the petition and passed ex parte orders in the appeals on December 6, 1985. On or about October 25, 1988, the applicant received six certificates of public demand seeking recovery of various sums as arrears of tax, penalty and interest under Certificate Case Nos. 103 to 105, 107, 108 and 110-ST (MK)/88-89. The assessments are challenged as bad, inter alia, on such grounds as violation of rules of natural justice for not giving reasonable opportunity of being heard, absence of materials for arriving at ex parte best judgment assessments and making such assessments by ignoring the materials on record. Demand of interest is challenged on the ground that the provisions relating thereto were introduced with effect from October 1, 1983, and, therefore, could not be applied to assessments for earlier periods. The respondents filed two affidavits-in-opposition. In the first affidavit on behalf of the Certificate Officer, it is stated that on receipt of requisitions and upon such satisfaction as the Bengal Public Demands Recovery Act, 1913, required, certificate notices were duly served on the applicant. In the second affidavit the case of the respondents is that all the actions taken and all the orders passed were in accordance with law. The ex parte assessments for the year ending June 30, 1980, were made after a number of adjournments were given. The assessments for the years ending June 30, 1982 and 1983 were made in the presence of the applicant himself. At the time of assessment for the year ending June 30, 1983, apart from the applicant, his Advocate was also present. The Assistant Commissioner could not but dispose of the appeals ex parte, as the applicant failed to avail of any of the opportunities given to him for representing his case. From the conduct of the applicant it is allegedly clear that he wants to evade payment of due tax. Ex parte and best judgment assessment necessarily involve guess-work to a reasonable extent, but it cannot be said that such assessment in the case of the applicant were without any basis. Although the applicant had right of appeal against the assessment orders for 1982 and 1983, he failed to exercise that right. Even though he filed appeals against assessment orders for the year ending June 30, 1980, he chose to remain absent at the hearing. He did not avail of another opportunity of moving the Tribunal below, namely, West Bengal Commercial Taxes Tribunal, against orders passed in the appeals. There is allegedly no illegality in any of the orders passed or actions taken.
(3.) IN the affidavit-in-reply the applicant has made a new point that although interest has been charged for all the three disputed years, no notice of demand was served therefor. Though this deficiency was brought to the notice of the respondent No. 4, the Certificate Office, no action was taken by him. Accordingly, the certificate proceedings relating to realisation of interest are said to be invalid.;