BALIA, J. - (1.) - Petitioner Manak Chand and respondents No.3 and 4 formed a partnership firm known as United Trading Company. They constructed a Factory at Bhagat-ki-Kothi, Jodhpur. It is alleged that since 1954-55, the business of the Firm was closed and the partners of the Firm started their separate business. While petitioner was residing at Jaipur, the respondents No.3 and 4 were residing at Calcutta in connection with their business. The Factory was let out to the Food Corporation of India in 1958-59, and thereafter it was requisitioned by the State of Rajasthan and presently it is being used as Godown for Rajasthan State Ware Housing Corporation. It is alleged by the petitioner that when they were served with Notice Ex.2 dated January 14, 1985 from the office of the Naib Tehsildar (Public Demand Recovery), Jodhpur raising a demand of Rs. 2,23,000/- as arrears of the Land and Building Tax Rs. 4800/-as penalty, and R. 11,390/- as interest for late payment the petitioner came to know for the first time about the proceedings under Land and Building Tax.
(2.) IT was then came to the notice of the petitioner that the property of the Firm known as United Trading Company, situated at Bhagat-ki-Kothi, Jodhpur was assessed by the respondent No.2 under the Land and Building Tax vide assessment order dated August 20, 1977 which is Ex. 3. IT is further alleged by the learned counsel for the petitioner that by coming to know of these proceedings, during the course of file inspection the petitioner came to known that respondent No.2 also provisionally assessed the property as Rs. 20,00,000/-vide Ex. 6 which did not show on what basis the respondent No.2 had arrived at the estimated market value to be of Rs. 20,00,000/-. Ex. 6 read as under: - VALUATION OF P.T.P.O. (BEST JUDGMENT METHOD) Building occupied by P.C.I., in Industrial area of Bhagat-ki-Kothi, Opp. Alcobax. Looking to the domination of plot and garage numbes of sheds constructed within the premises. Provisional value of Building including land is Rs. 20,00,000/- (Twenty lakhs only by BEST JUDGEMENT METHOD. Sd/- 19.2.77)" It was solely on the basis of Ex. 6 that best judgment Assessment Order was made by the Assessing Authority. It is alleged by the learned counsel for the petitioner that no notice of whatever kind was served on the petitioner or any of his partners before passing of this Assessment Order. According to him, the order suffers from the error on the face of record inasmuch, the order do not confirm with the requirement of S.ll. Vide order dated March 16, 1985, application of the petitioner for rectification of order was rejected interalia on the ground that the mistake pointed by the petitioner do not come within the perview of error apparent on the face of record the order is Ex.7. In the aforesaid circumstances, petitioner has challenged best judgement assessment order dated August, 20, 1977 (Ex.3), order rejecting his application under S. 22 A dated March 16, 1985 (Ex. 7) and demand notice dated January 14, 1985 (Ex.2). Return has been filed in which it has been stated that the property belonging to United Trading Co. has been under the attachment proceedings and the rent is being recovered by the Tax Recovery Officer who is deemed to be owner as per provisions of the Act. Notice has been sent to the Tax Recovery Officer.In view thereof, it has been claimed that the provisions of S. 11 has been duly complied with. In the return it has been stated that notices addressed to the petitioner were served on one Vimal Kanwar W/o Mangilal Sancheti. However, it has not been shown how Smt. Vimal Kanwar was connected with the Firm or with any other partners of the Firm. In the return, the respondents have also supported the order of the best assessment judgment on the merits. A rejoinder has also been filed on behalf of the petitioner.
(3.) IN the first instance it has been submitted that the order of the best assessment is not at all in compliance with the provisions of the Act and suffers from patent errors and illegalities. It was pointed out that all the relevant columns of the assessment order are blank the Assessment order is required to be made in Form LBT-7 under R.10, where the assessment is made on the failure on the part of the owner to file return. It does not disclose the necessary information on the basis of which best judgment is required to be framed under the statutory provisions. My attention was invited to the provisions of Sections 7,9 and 11 which are relevant for the purpose of framing an assessmet under the Land and Building Tax Act, 1954, where no return has been filed by the owner of the land and building. It is not disputed that this is the case which is covered by these provisions. Principles on which best judgment assessment ought to be framed under various taxing statutes are well established. Reference in this connection may be made to the principles enunciated in the case of Oceanic Industries (India) Pvt Ltd. vs. The Commercial Tax Officer, Bhawanipore Charge and Ors. (1), wherein it was observed as under : "It is implicit in the section that the Commercial Tax Officer should consider all relevant materials he has gathered before making the assessment. Even in making best judgment assessment he has to give a dealer a reasonable opportunity of being heard. It is also implicit that he should give his reasons for arriving at a particular figure of enabling the assessee to appreciated the mantal process leading to the assessment, and such order being subject to appear need also be a speaking order." While considering the scope of jurisdiction to make best judgement assessment under Income Tax Act, 1922, the Privy Council in the case of Commissioner of Income tax vs. Laxminarain Badridas (2), observed as under:- "The Officer is to make an assessment to the best of his judgment against a person who is in default as regards supplying information. He must not act dishonestly, or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must, their lordships think, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances and his own knowledge of previous returns by and assessment of the assessee and all other matters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guess-work in the matter, it must be honest guess-work." ;