V. K. SINGHAL, J. - (1.) THE assessing authority has filed these revisions under section 15 of the Rajasthan Sales Tax Act, 1954, in respect of the following two questions of law arising out of the order of the Sales Tax Tribunal : 1. Whether, in the facts and in the circumstances of the case, the Tribunal was justified in holding that the reassessment proceedings were barred by time ? 2.Whether, in the facts and in the circumstances of the case, the reassessment proceedings were validly re-initiated by notice dated November 19, 1980 ?
(2.) BRIEF facts giving rise to the present revisions are that assessments of the assessee for the period November 6, 1972 to October 25, 1973 and October 26, 1973 to November 31, 1974, i. e. , the assessment years 1973-74 and 1974-75, were finalised under section 9 of the Central Sales Tax Act, 1956, on February 14, 1978 and February 6, 1979. In the assessment orders, certain sales were held liable to tax at 3 per cent against "c" form. Thereafter, the assessing authority has issued a notice in form S. T. 12 fixing the date of bearing on February 21, 1980, that "c" forms of Rs. 20,239. 27 have not been produced and besides this, there was difference in the figure of levy of tax of Rs. 10,000. The assessee was asked to appear in person. After this notice, another notice in form S. T. 33 under section 17 was issued on April 12, 1983, for the year 1973-74, wherein it was mentioned that the "c" forms of Rs. 36,036 have not been produced and therefore, the tax is sought to be levied on the difference figure. Thereafter, notice in form S. T. 12-A under section 12 was issued on September 8, 1986, for the 1973-74 informing that the "c" forms of Rs. 30,036 have not been produced and therefore, the tax at the rate of 7 per cent was proposed to be levied. For the year 1974-75, notice under section 12 in form S. T. 12-A on September 8, 1986, was issued and it was mentioned that "c" forms of Rs. 79,990 have not been produced and, therefore, tax is sought to be levied on difference at the rate of 7 per cent. In the appeal preferred before the Deputy Commissioner (Appeals), it was held that the first notice issued was within time and, therefore, reassessment order is justified. The appeal was rejected. Before the Sales Tax Tribunal, it was submitted that issue of notice under section 12 is a mandatory requirement and the notice which was issued in 1980 was not in the prescribed form and thereafter the notice, which was issued under section 17 has also no relevance and it is only the proper notice which has been issued under section 12 and which was served on the assessee on September 19, 1986, that can be taken into consideration and by that time the period of 8 years lapsed and, therefore, the proceedings are barred by limitation. The Sales Tax Tribunal accepted the plea and quashed the reassessment orders. The submission of Mr. Bapna on behalf of the assessing authority is that in view of the provisions of section 19a of the Rajasthan Sales Tax Act, even if the form of the first notice was not in the prescribed form, the defect could be deemed to have been ineffective on the proceedings. The provisions of section 19a are as under : " 19a. Want of form, etc. , not to affect proceedings.- Any notice, summons, assessment order, demand notice, order of attachment or like proceedings which purports to be made in pursuance of any provision of this Act or the Rules shall not be quashed, or deemed to be void or voidable for want of form, or he affected by reason of a mistake, defect or omission therein, if the same is in substance and effect in conformity with or according to the intent and meaning of the Act and the Rules. " There is a similar provision existing under section 292-B of the Income-tax Act. The Kerala High Court in the case of Sasi Kumar v. Commissioner of Income-tax [1988] 170 ITR 80 has held that if there is no notice to the association of persons, which was to be assessed to tax, then such a fundamental infirmity would not be called a technical objection or mere irregularity and such infirmity could not be cured or obliterated by relying on section 292-B of the Act. The Madhya Pradesh High Court in Umashanker Mishra v. Commissioner of Income-tax [1982] 136 ITR 330 has held that the absence of the signature on the notice will not make the notice as valid and the defect cannot be considered to be waived under section 292-B of the Act. The Calcutta High Court in Sunrolling Mills P. Ltd. v. Income-tax Officer [1986] 160 ITR 412 has held that the section is intended to ensure that on technical ground the return of income, assessment notice or summons or proceedings, is not rendered invalid. This section does not empower the Income-tax Officer to treat a proceeding taken under section 147 (b) as a proceeding under section 147 (a) and this is not a mere technicality. The Allahabad High Court in Commissioner of Income-tax v. Smt. Phoolmati Devi [1983] 144 ITR 954 has held that the provisions of section 292-B might apply to a case where service had already been effected and there is only a technical mistake in the notice, but where no notice has been served, the section would not come to the rescue of the department. The provisions of section 19a of the Rajasthan Sales Tax Act have a very limited scope with regard to the infirmity in the form of notice. It has no application when there is no service of the notice at all or where no notice under section 12 has been issued or the notice issued is unsigned and cannot be considered to be a valid notice in the eyes of law.
(3.) THE issue of notice in the prescribed form under section 12 is a condition precedent to the validity of the order of reassessment as has been held by their Lordships of the Supreme Court in Narayana Chetty v. Income-tax Officer [1959] 35 ITR 388 and if there is no exercise of power under section 12 and notice has been issued under some other section, then it cannot be said that the proceeding have validly been initiated. Since notice under section 12 in the present case, has been issued after expiry of time-limit prescribed under section 12, the Sales Tax Tribunal was justified in quashing the reassessment proceedings. THE revisions are dismissed. No order as to costs. Petitions dismissed. .;