- (1.) THE petitioner-firm, M/s. Kailash Oil Mills, Batala (hereinafter referred to as "the petitioner"), engaged in the business of manufacturing/extracting oil from oil-seeds at Batala in District Gurdaspur, is registered as a dealer under the Punjab General Sales Tax Act, 1948 (hereinafter referred to as "the Act"), its registration certificate number being GRD-IV-7734. It is alleged that on or about 1st September, 1979, two notices for reassessment, annexures P-l and P-2, without date, for the years 1974-75 and 1975-76 respectively, under Section ll-A (1) of the Act, in form S. T.-XIX issued by Shri K. K. Hans, respondent No. 3, for reopening the assessment, were pasted outside the office of the petitioner requiring it to appear before him at Gurdaspur on 5th September, 1979. Annexure P-3, in respect of the year 1976-77, was issued by respondent No. 2, Shri Gurbachan Singh, Assessing Authority/excise and Taxation Officer, Batala, in form S. T.-XIX, requiring the petitioner to appear before him on 11th June, 1979. The reasons for the issuance of the notices in question, that the deductions claimed under Section 5 (2) (a) (ii) of the Act had been found to be ungenuine/fictitious, were mentioned in each notice. The petitioner on 3rd September, 1979, sent a letter, annexure P-5, containing its objections contesting the validity of the notices on various grounds. Respondent No. 2 on 5th September, 1979, sent letters, annexures P-6, P-7 and P-8, to the petitioner replying. The petitioner, instead of appearing before respondent No. 2 as required by him, filed the present petition in this Court praying, inter alia, that the notices, annexures P-l, P-2 and P-3, be quashed. It has sought the quashing of the impugned notices and the proceedings taken by respondent No. 2 on the following grounds : (i) That the notices, annexures P-l and P-2, were issued by Shri K. K. Hans, respondent No. 3, in August, 1979, when he had no jurisdiction over the petitioner-concern, the case of the petitioner having been transferred to Shri Gurbachan Singh, respondent No. 2, by the Assistant Excise and Taxation Commissioner, Gurdaspur, vide his order dated 22nd June, 1979, annexure P-4. (ii) That the impugned notices were vague as no grounds for reopening the assessment under Section 11-Aof the Act had been mentioned therein as also for the reason that the names of the purchasing dealers, who had made the statements of denial, had not been mentioned in the notices. (iii) That there was no definite information in the possession of the Assessing Authority at the time of issuance of the notices. (iv) That respondent No. 2 was posted at Batala and his jurisdiction extended only over Batala tehsil. The impugned notices requiring the petitioner to appear at Gurdaspur, i. e. , outside the limits of the jurisdiction of the Assessing Authority, were illegal. (v) That, in order to harass the petitioner, very short adjournments were given by respondent No. 2 without acceding to the request of the petitioner for the supply of certified copies of the statements of denial made by the concerned purchasing dealers. (vi) That respondent No. 2, under the instructions of respondent No. 1, had lodged an F. I. R. against one of the partners of the petitioner firm on false allegations and, therefore, he would not have an unbiased approach to the case. (vii) That the Assessing Authority in its order dated 10th May, 1976, for the assessment year 1974-75 and the one dated 9th August, 1977, for the assessment year 1975-76 had observed that deductions under Section 5 (2) (a) (ii) of the Act had been allowed after checking Sales Tax-XXII forms and finding them to be correct and that once a dealer proves to the satisfaction of the Assessing Authority that the S. T.-XXII forms had been signed by the purchasing dealer, then he would be legally entitled to the deduction under Section 5 (2) (a) (ii) of the Act notwithstanding the subsequent denial or statement that the purchasing dealer had not made any such purchases. (viii) That the provisions of Section 11-A of the Act authorise the Assessing Authority to reopen the assessment of a dealer only when he comes to the conclusion that the turnover of his business had been under assessed or escaped assessment. The present case is not a case of under-assessment or escaping of assessment of the dealer's business turnover. (ix) That even if it is accepted that certain purchasing dealers had denied that they had effected any purchases, then what would follow is that there had been no such sales by the petitioner and consequently, there had been no turnover which could be said to have escaped assessment.
(2.) BEFORE proceeding with the consideration of the submissions advanced on the basis of grounds above-noted, it is necessary to take notice of the notices (annexures P-l, P-2 and P-3) served upon the petitioner by the Assessing Authority, the letter (annexure P-5) of the petitioner in reply thereto, and the replies (annexures P-6, P-7 and P-8) of the Assessing Authority. Since the notices, annexures P-l and P-2, are identical except that they relate to two different years, only annexure P-l by way of sample is being reproduced ; and since the replies, annexures P-6, P-7 and P-8, are identical except that they relate to three different years, only annexure P-6 by way of sample is being reproduced : Annexure P-l: To M/s. Kailash Oil Mills, Dera Road, Batala, GRD-IV-7734. Whereas in consequence of definite information in my possession I have reasons to believe that the turnover of your business assessable to sales tax for the year ending the 31st March, 1975, has been under-assessed/escaped levy of the appropriate fee. I, therefore, propose to reassess the said turnover that has been under-assessed/escaped levy of the appropriate fee. I hereby require you to show cause on 5th September, 1979, at 11 A. M. of the service of this notice on you why the contemplated action should not be taken in your case. You should appear on the said date in the office of the A. E. T. C, Gurdaspur. Sd/ -. . . Assessing Authority. Deductions claimed under Section 5 (2) (a) (ii) of the Punjab General Sales Tax Act, 1948, have been found to beungenuine/fictitious. Annexure P-3 : Whereas, in consequence of definite information in my possession, I have reasons to believe that the turnover of your business assessable to sales tax for the year ending the 31st March, 1977, has been under-assessed/escaped levy of the appropriate fee. I, therefore, propose to reassess the said turnover that has been under assessed/escaped levy of the appropriate fee. I hereby require you to show cause on 11th June, 1979, of the service of this notice on you why the contemplated action should not be taken in your case. Annexure P-5: Regarding reassessment proceedings in case of M/s. Kailash Oil Mills, D. S. N. Road, Batala, GRD-IV-7734, for the year 1974-75. Kindly refer to the notice in form S. T. XIX for the year 1974-75, served by effecting substituted service by pasting them, directing us to appear on 5th September, 1979, in the office of the Assistant Excise and Taxation Commissioner, Gurdaspur. It is submitted that the notice is invalid, illegal, unjudicious and mala fide ab initio, in view of the following preliminary objections and arguments : 1. The notice fails to indicate the name of the Assessing Authority, Gurdaspur, before whom we are required to appear, at Gurdaspur. The name cannot be made out from the signatures. 2. Our case falls in the territorial jurisdiction of Shri K. K. Hans, Assessing Authority, Batala. So, the notice issued by the unknown Assessing Authority, Gurdaspur, is without jurisdiction.
(3.) NO doubt the Assistant Excise and Taxation Commissioner, for lack of confidence in the Assessing Authority having jurisdiction over the case, or for some other reason, can transfer the case to the file of another Assessing Authority. But such orders cannot be passed at the back of the assessee and without affording an opportunity to the dealer to ascertain whether the transfer orders are prejudicial to him or not. In absence of issue of such notice by the Assistant Excise and Taxation Commissioner to the assessee, it can safely be presumed that no such orders of transfer of case have been passed. Thus the said notice in form S. T. XIX is absolutely without jurisdiction.;