Sukhdev Singh Kang, J. - (1.) On an application made by the assessee under section 42 of the Haryana General Sales Tax Act (for short 'the Act'), the Members of Sales Tax Tribunal, Haryana have referred the following questions of law for our opinion : (i) Whether in the facts and circumstances of this case the notice dated February 11, 1971 was invalid and without jurisdiction ? (ii) Whether in the facts and circumstances of this case the assessment against the petitioner was time-barred as the second notice under section 11 (3) of the Act was not issued within a period of 5 years from end of respective periods of the two quarters ending 30th June, 1968 and 30th September, 1968 ?
(2.) M/s. Rikhi Ram Ramesh Kumar-respondent herein did not file the returns for the quarters ending 30th June, 1968, 31th September, 1968, 31st December, 1968 and 31st March, 1969. A registered notice in Form ST-XIV was issued to it by the Assessing Authority, Sirsa on 11th February 1971 directing them to appear before him in person or by an agent on 2dth February 1971. No reply was received nor anybody appeared before the Assessing Authority, Notices were served upon the sureties directing them either to produce the dealer or his account books. In-spite of these notices, neither the dealer appeared before the Assessing Authority nor his books of account were produced. Consequently, the Taxation Inspector was directed to collect the relevant data and he intimated that the turn over of the dealer exceeded Rs. 5 lacs. The case was forwarded to the Excise and Taxation Officer because in accordance with law applicable at that time, the Assessing Authority who was the Assistant Excise and Taxation Officer was tot competent to make assessment in a case where the turn over exceeded Rs. 5 lacs. The Excise and Taxation Officer issued notice for November 16, 1973 to the dealer on 6th November 1973 None appeared on that date. Notices were issued to the dealers and their sureties for appearance on 10th December, 1973. Again nobody appeared. Consequently, the Excise and Taxation Officer directed the Taxation Inspector to collect mare data and another notice was sent to the dealer and his surety but nobody appeared in response to their notice. Ultimately, the Excise and Taxation Officer framed an exparte assessment on 28th February. 1974. Appeal filed by the respondent to the Deputy Excise and Taxation Commissioner did not meet any success and was dismissed on 4th June 1974. Dissatisfied the assessee filed an appeal and the same was rejected by the Tribunal on 6th December, 1974.
(3.) Before the Tribunal, it was urged on behalf of the assessee that the assessment for the quarters ending 30th June, 1968 and 30th September, 1968 were time barred because the same were framed after a period of five years from the close of the period provided for filing the returns under section 11 (5) of the Punjab General Sales Tax Act 1918 because it was applicable to the State of Haryana in the year 1963. The Act having been in force in 1973. It is pleaded that the Assistant Excise and Taxation Officer was not competent to frame the assessment when the turn over of the assessee exceeded Rs. 5 lacs. Notice in Form ST-XIV dated 11th February 1971 was issued by the Assessing Authority the Assistant Excise and and Taxation Officer, Sirsa who was not competent to frame the assessment against the assessee because its turnover exceeded Rs. 5 lacs- Second notice was issued by the Excise and Taxation Officer who was the competent authority on 6th November, 1973 which was clearly beyond 5 years of 30th September, 1968 This contention did not find favour with the Members of Sales Tax Tribunal. He held that when the Assistant Excise and Taxation Officer issued notice in form ST-XIV on 11th February, 1971, he was not aware that the turn over of the assessee exceeded Rs. 5 lacs because no returns have been filed. Proceedings have been initiated within time by an authority which was competent to do so.;