- (1.) THIS is a. petition under Article 226 of the Constitution filed by M/s. Akbarali Amanatali, Pali, seeking to quash three orders of reassessment dated 16. 11. 1966 under sec. 12 (1) of the Rajasthan Sales Tax Act passed by the Assistant Commercial Taxes Officer, 'c' Ward, Pali.
(2.) THE petitioners are a partnership firm engaged in the business of manufacture and sale of bangles and are registered as a dealer under the Rajasthan Sales Tax Act, 1955, hereinafter referred as 'the Act'. THE firm has been granted an exemption certificate under sec. 4 (3) of the Act by virtue of Notification No. F. 21 (7)SR/55 dated 14. 5. 1955, which reads : " (11) Bangles made of lac, Topali (of coconut), Xylonite or Catalin tube. " For the assessment years 1959-60, 196-61 and 1961-62, the petitioners' firm filed returns claiming: exemption from sales tax on the sale of bangles made by it. The Sales Tax Officer, Pali by his assessment orders allowed the exemption claimed and raised no demand. In the month of March 1963, the Sales Tax Officer Pali, having discovered that the exemption was wrongly allowed issued notices under sec. 12 (1) with respect to the aforesaid assessment years with a view to reassess the petitioner's business on the ground that the sales had escaped assessment. The notices were not in the prescribed Form ST 12 A but were in Form ST 12. In D. B. Civil Writ Petition No, 76 of 1963 : Abbas Ah Asgar Ali vs. Sales Tax Officer, Pali, decided on 11-8 64 this Court quashed the notices. On 29. 9. 65, the Assistant Commercial Taxes Officer, 'c' Ward, Pali accordingly issued fresh notices under sec. 12 of the Act for the years aforesaid in the prescribed Form ST 12-A, proposing to reassess the petitioner for the said years on the ground that the deductions under the exemption certificate claim were wrongly allo-wed. The petitioner in response to the show cause notice filed a written submission, wherein it was asserted : "that during the course of the assessment proceedings including the examination of books, other papers and vouchers relating to the said years upto 1961-62, the assessing authority has besides examining other matters also examined the claim for deduction on account of sales of bangles made of Xylonite and Catalin tubes as covered by the Exemption Certificate. While examining this claim, the petitioner made it known to he assessing authority that the assessee has besides other goods also purchased 'styron, and thereafter manufactured bangles therefrom and sold the same. The petitioner has also shown the purchase vouchers of Styron which are verified to be duly entered in the books by the assessing authority. " The Assistant Commercial Taxes Officer, however, on examination of the account books, maintained by the petitioners, found that there was no basis for this assertion and that indeed, the petitioners were not entitled to any exemption as claimed. He states in his orders that he had closely examined the account books and 'they reveal a 'powder khata' and sales of bangles, under the names Muthia, Chudli, Khancha, Khancha Tookda, etc. The word 'xylonite' nowhere occurs in the account books of the assessee'. For instance, it appears that the trading account of the assessee for the assessment year 19 59-60 merely shows : "exempted u/s. 4 (2) : Powder account Rs. 5,418/11/3". He accordingly passed the impugned orders of re-assessment and subjected the sales to tax The petitioner instead of preferring an appeal against the orders of re-assessment straightaway has filed this writ petition. The State of Rajasthan has in its reply denied that the order of re-assessment was illegal or invalid. On the contrary, the Government asserted that the turnover was wrongly exempted from tax whereas, in fact, it was liable to tax. The turnover having escaped assessment, the Assistant Commercial Taxes Officer, it was said, had the jurisdiction to pass the orders of re assessment in question under sec. 12 (1) of the Act. It was then stated that it was purely a question of fact whether the goods made of powder having no reference to the exempted goods can be treated as goods exemp-ted under sec. 4 (2) of the Act, and that it was not merely a question of change of opinion. Further that the remedy of the petitioner was by way of an appeal and by reference and the extraordinary jurisdiction of the High Court cannot be invoked under Article 226 of the Constitution to determine such disputed questions of fact. In support of the petition, learned counsel has advanced two contentions, namely, (i) there could be no re-assessment under sec. 12 (1) of the Act on a mere change of opinion and consequently the notices of re-assessment in Form 12-A issued by 'he Assistant Commercial Taxes Officer were invalid and the proceedings were vitiated, and (11) the High Court had the power to issue a writ of certiorari under Article 226 of the Constitution, the Assistant Commercial Taxes Officer having acted without jurisdiction. Much stress was laid on the decisions of their Lordships in Calcutta Discount Co. Ltd. vs. Income tax Officer, Companies District I, Calcutta (1) and Sales Tax Officer, Ganjam vs. Uttereshwari Rice Mill. It was urged on the strength of these decisions that the existence of alterative remedies by way of appeals, revisions and references to the High Court should not, and cannot, be a sufficient reason for refusing a writ or order in the nature of prohibition or certiorari, where the authority acts without jurisdiction. The decision of their Lordships in Calcutta Discount Co. Ltd. vs. Income-Tax Officer, Calcutta (supra) is of no avail to the petitioner. The scheme under sec. 34 of the Income-tax Act, 1961 is entirely different. Section 12 (1 of the Act so far as material reads : " (12) Assessment of tax and levy of exemption fee or registration fees incorrectly assessed.- (1) If for any reason the whole or any part of the business of a dealer has escaped assessment to the tax, or if the registration fee or exemption fee has escaped levy or has been assessed at top low a rate in any year, the assessing authority, may serve on the dealer liable to pay the tax in respect of such business or such registration fee or exemption fee a notice in the prescribed form and may proceed to assess or reassess the amount of the tax or levy the correct amount of registration fee or exemption fee from such dealer. "
(3.) UNDER Sec. 34 of the Income-Tax Act, 1961, the Income-Tax Officer should have 'reason to believe' that the income chargeable to tax has escaped assessment for relevant year, or has been underassessed, or assessed at too low a rate, etc. The words 'reason to believe' impose condition to the exercise of the powers to make a re-assessment under sec. 34. Unlike sec. 34 of the Income-tax Act, sec. 12 (1) of the Rajasthan Sales Tax Act, 1954 uses the words 'if for any reason, the whole or any part of any business of a dealer has escaped assessment to tax, or has been assessed at too low a rate in any year, etc. The words 'for any reason' in section 12 (1) of the Act are wide enough and the powers of the Commercial Taxes Officer under the section are not circumscribed by any condition. In Maharajadiraj Sir Kameshwar Singh vs. The State of Bihar (3), their Lordships while interpreting the Bihar Agricultural Income-tax Act, 1938, which used the same expression, observed : "the use of words 'any reason' which are of wide import dispenses with those conditions by which sec. 34 of the Indian Income-tax Act is circumscribed " See D. B. Civil Writ Petition No. 665 of 1970 : M/s. Bhanwar Lal Binjaram vs. The Assistant Commercial Taxes Officer, Ward II, Circle 'a', Jodhpur, decided on 29 10-1976. The decision of the Division Bench in M/s. National Clinic vs. Asstt. Commercial Taxes Officer, Sri Ganganagar (4), which Jays down that there can be no re-assessment under section 12 (1) of the Act on mere change of opinion therefore does not lay down good law. The other decisions relied upon by the petitioner relating to changeability of income-tax on re-assessment under section 34 of the Income-tax Act on a mere change of opinion on the part of the reassessing officer who differed from his own previous opinion or that of his predecessor in office are entirely different and need not therefore be dealt with. The decision in Sales Tax Officer, Ganjam vs. Uttareshwari Rice Mills (supra) is, however, pressed into service for the contention that there is not much difference in the schemes for re-assessment under section 34 of the Income-tax Act and section 12 of the Rajasthan Sales Tax Act. Our attention is drawn to the following observations of Khanna, J. : "although the opening words used in sec. 12 (8) are 'if for any reason' and not 'if the sales tax authority has reason to believe', the difference in phraseology, in our opinion, should not make material much difference. A reason cannot exist in vacuum. Somebody must form the belief that reason exists and looking to the context in which the words are used, we are of the view that it should be the sales tax authority issuing the notice who should have reason to believe that the turnover of a dealer has escaped assessment or has been under-assessed. The approach in this matter has to be practical and not pedantic. Any view which would make the opening words of sec. 12 (8) unworkable has to be avoided, It may be noted in this context that in Form VI appended to the Rules, which has been prepared in pursuance of rule 23, the words used are 'whereas I have reason to believe that your turnover. . . . . . has escaped assessment. " These observations cannot, in our opinion, be read out of context. Their Lordships were no doubt dealing with section 12 (8) of the Orissa Sales Tax Act, 1947, the opening words of which were the same as in sec. 12 (1) of the Rajasthan Sales Tax Act but the difference lay in the fact that Form VI, the prescribed form of notice under rule 23 used the words 'whereas I have reason to believe'. Under the Orissa Sales Tax Act, therefore, the words 'if for any reason' and 'whereas I have reason to believe' were used more or less in the same sense and the expressions were interchangeable. ;