- (1.) THIS is a revision against the order of the Sales Tax Officer, Jaipur dated 29-8-1963. The brief facts of the case are that the petitioners were served with a notice under sec. 12 Rajasthan Sales Tax Act as to why the sale proceeds of packing materials estimated at Rs. 24,649. 23 Np. used in the sale of yarn bales within the State should not be taxed as, they had escaped levy of tax in the regular assessment. The petitioners raised a preliminary objection that in sec. 12 it is provided that notice shall be served on the assessee in the prescribed form and since no such notice has been prescribed by the Government - therefore the very basis on which the proceedings under this section can be founded is missing and the sec. 12 will remain inoperative until such time the notice is prescribed thereunder. THIS objection has been rejected by the learned Sales Tax Officer, Jaipur vide his impugned order dated 29-8-63. Aggrieved by this order of the Sales Tax Officer, Jaipur the petitioners have come in revision before the Board of Revenue.
(2.) THE learned counsel, for the petitioner has argued that notice on form S. T. 12 has been issued to him which is not a proper notice for initiating proceedings. He has argued that notice in form S. T. 12 is issued only when parties are summoned to appear and/or to produce documents when the proceedings are already pending before the assessing authority. He has argued, that sec. 12 of the Rajasthan Sales Tax Act has been amended and the words "in the prescribed form" have been added after the word "notice", but the Sales Tax Department has not prescribed any notice for, issuing in, compliance with the amendment to sec. 12 of the Rajasthan Sales Tax Act. He has argued that any, notice issued under form S. T. 12 is not a valid notice and a valid notice is imperative before any proceedings or action, can be taken against the assessee. He has argued, that sec. 34 of the Income-tax Act is analogus to sec. 12 of the Rajasthan Sales Tax Act. He has cited Income-tax Reports 1959, page 388 according to which it has been held by their lordships of the Supreme Court of India in the case of Y. Narayana Chetty vs. Income Tax Officer, Nellore that the notice prescribed by sec. 34 of the Income-Tax Act for the purpose of initiating re-assessment proceedings is not a mere procedural requirement; the service of the prescribed notice on the assessee is a condition precedent to the validity of any re-assessment made under sec. 34. If no notice is issued or if the notice issued is shown to be invalid then the proceedings taken by the Income-tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. THE learned counsel for the petitioner has further argued that petitioner appeared before the Sales Tax Officer in compliance to an invalid notice does not amount to waiver on part of the petitioner and in this connection he has cited Income Tax Reports 1956, page 484 according to which their lordship of Patna High Court have held in the case of Commissioner of Income tax, Bihar and Orissa versus Maharaja Pratap Singh Bahadur that in a case where an Income-tax Officer issued notice under sec. 34 without complying with the conditions laid down in the proviso to sec. 34 as re-enacted on 8-9-1948, for taking action under the section; the assessee submitted a return under protest; it was held that as these conditions go to the very root of the jurisdiction of the Income-tax Officer, waiver on the part of the assessee cannot confer jurisdiction on the Income-tax Officer if the statutory conditions are not complied with. The learned counsel for the petitioner has also cited S. T. C. 1963, page 67 according to which? their lordships of Madhya Pradesh High Court have held in the case of firm Janta Hardware Stores, Raigarh and others versus B. S. Parihar, Assistant Sales Tax Officer, Raigarh, Circle, Raigarh that a notice would be substantially in accordance with the prescribed form; although form XVI is valid for the issue of a notice under sec. 19 (1) as it stood before the amendment, it is wholly inconsistent with, and altogether outside, the scope of the amended sec. 19 (1 ). A notice issued in form XVI cannot be regarded as a valid notice for the purpose of the amended section. The rule making authority must amend form XVI so as to bring it in conformity with the amended section. He has further argued that no notice under sec. 12 has been prescribed by the State Government after amendment of sec. 12 of the Rajasthan Sales Tax Act, hence no proceedings can be initiated under sec. 12 and all the proceedings, if initiated, should be treated as null and void ab initio. In reply to the above the learned Government Advocate has argued that there is only one notice in the form of S. T. 12 which is prescribed under the Act for issuing summons; and as per rule 55 of the Rajasthan Sales Tax Rules every summons or notice issued under the Act or these rules for the production of a document or the appearance of any person shall be in from S. T. 12. , but he has conceded that after amendment of sec. 12 of the Rajasthan Sales Tax Act neither the form S. T. 12 has been amended nor any new form has been prescribed by the department. His main contention is that the notice will be under form S. T. 12 for all purposes. He has relied on revision No. 92 of 1962 decided by D. B. of Board of Revenue in the case of M/s. Banthiya & Co. versus State in which case no notice was issued to the assessee firm and the learned Members had directed to issue notice under form ST 12 prior to taking any proceedings for assessment, under sec. 10 of the Rajasthan Sales Tax Act. The learned Government Advocate has argued that enquiry before assessing authority will be deemed to be pending in this case because subsequent to the assessment of the tax the assessing authority came to know that certain tax has escaped the notice of the assessing authority, thus a notice under sec. 12 of the Act and rule 55 of the Rules was issued in form ST 12. This entails that, the proceeding of the assessment were already pending before the assessing authority. I have heard both the learned counsel for the parties and have gone through the entire record of the case. The learned Government Advocate has conceded that sec. 12 of the Rajasthan Sales Tax Act has been amended and the form ST 12 has not been amended in pursuance to the amended sec. 12 nor any new form of notice has been prescribed as mentioned in amended sec. 12. The ruling of the Madhya Pradesh High Court reported in S. T. C. 1963, page 67 cited above is very clear. A notice issued in form ST 12 cannot be regarded as a valid notice for the purpose of the amended section. The rule-making authority must amend form S. T. 12 so as to bring it in conformity with the amended section. I, therefore, accept the revision and set aside the order of the learned Sales Tax Officer, Jaipur dated 29-8-63 and remand the case to the assessing authority for issuing proper notice in pursuance of amended sec. 12 and then proceed according to law. .;