PRAMOD KUMAR AGARWAL (SARAF) Vs. COMMERCIAL TAX OFFICER, SILIGURI CHARGE AND ORS.

JUDGEMENT

(1.) THE Case No. 393 of 2007 relates to the assessment period of four quarters ended on March 31, 1995 and the Case No. RN -394 of 2007 relates to the assessment period from May 1, 1995 to March 31, 1996 and for the period from April 1, 1995 to April 30, 1995 the assessment was nil. In both the applications under Section 8(1) of the West Bengal Taxation Tribunal Act, 1987, the petitioner prays for setting aside the revisional orders passed by Sri Anil Kumar Sarkar, Additional Commissioner of Commercial Taxes, West Bengal, Siliguri Zone both under order dated August 22, 2007, the appellate order passed in Appeal Case No. 3A -418/2004 -05 in respect of the period ending on March 31, 1995 and in the Appeal Case Nos. 3A -428/2004 -05 as well as 427/2004 -05 both passed by Mr. Sonam Jigmay Kargay, Assistant Commissioner of Commercial Taxes, Siliguri Circle on November 9, 2005 and December 1, 2005, respectively and also the assessment orders passed by the Commercial Tax Officer, Siliguri Charge on July 25, 1997 and on June 8, 1998, respectively in the Darjeeling Case Nos. 113(J) 95 -96 and 673(J) 97 -98. In both the cases, in the revisional orders, the Additional Commissioner held that the revisional applications were not entertainable by him on the ground that he had no authorization in respect of the assessment under the BF (ST) Act, 1941 and that he was only authorised to revise final appellate or revisional orders from an order of assessment under Section 81(2) of the WBST Act, 1994 with effect from July 1, 1996. In Case No. 394 of 2007 the revisional application was against the combined order dated December 1, 2005 passed in the Appeal Case No. 428 of 2004 -05 relating to the period of one month from April 1, 1995 to April 30, 1995 and Case No. 427 of 2004 -05 was relating to the period from May 1, 1995 to March 31, 1996. The appellate order in respect of the period from May 1, 1995 to March 31, 1996 escaped the notice of the Additional Commissioner. All the three appeals which were sent by registered post were returned unserved. The appellate authority without taking further steps for service of the notice disposed of the appeals ex parte. The petitioner asserted that the notice to the assessment proceedings, copies of the assessment orders and also the notices for demand were not served upon the petitioner and hence he contended that the assessment proceedings, demand notices, the Appellate orders are invalid and void. The respondent -Commercial Tax Officer, Siliguri range contested the application by supporting the impugned orders. The learned State Representative in course of making argument submitted that it would not be possible for the Sales Tax Directorate to produce the postal acknowledgement -due card after 10 years.

(2.) THE issues called upon for our consideration are : (i) Whether initiation of the assessment proceedings are valid, (ii) Whether the revisional orders, appellate orders are valid and whether the petitioner is entitled to the reliefs.

(3.) IN these cases where the contesting respondent claimed that the registered postal cover was returned unserved the presumption under the provisions of Sub -rule (2) of the Rule 84 of the 1941 Rules and Rule 278 of the 1995 Rules cannot be drawn. So without examining the correctness of the respondent's statement as to sending of the notices under registered post it could safely be held by the appellate authority that the notices were not served. Section 11(1) of the Bengal Finance (Sales Tax) Act, 1941 provides, "if no (returns) are furnished by a registered or certified dealer in respect of any period by the prescribed date, or if the Commissioner is not satisfied that the (returns) furnished are correct and complete, the Commissioner shall proceed in such manner as may be prescribed to assess to the best of his judgment the amount of the tax due from the dealer and in making such assessment shall give the dealer a reasonable opportunity of being heard; and in the case of failure by a registered or certified dealer to submit in respect of (any period a return) accompanied by a receipt from a Government Treasury or the Reserve Bank of India, as required (under Section 10) by the prescribed date, the Commissioner may, if he is satisfied that the default was made without reasonable cause, direct that the dealer shall pay by way of penalty in addition to the amount of the tax so assessed a sum not exceeding one -and -a -half times that amount". The identical provision for initiating the assessment proceeding is provided in Section 45 of the WBST Act, 1994. Both the provisions provided that in making assessment, the dealer should be given an opportunity of being heard. It is settled principle of law that in absence of service of notice, no orders affecting the interest of the assessee can be passed. So the appellate authority committed an error in holding that the opportunity of being heard in the assessment proceeding was not denied to the assessee. He should have held that the notices to the assessment proceeding not being served the ex parte assessment orders were invalid and those should have been set aside. Consequently, the recovery proceedings were also liable to be set aside.