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State Taxation Tribunal – West Bengal
J.K. Industries Ltd. vs Assistant Commissioner Of … on 7 September, 2000
Equivalent citations: 2001 124 STC 216 Tribunal
Bench: J Gupta, A Deb


JUDGMENT

J. Gupta (Judicial Member).

1. The applicant-company before us is a dealer registered under the West Bengal Sales Tax Act, 1994 (in short, “the 1994 Act”) as a seller of tyres and tubes which it imports from its own manufacturing unit situated outside West Bengal, Previously it was registered under the West Bengal Sales Tax Act, 1954 (in short, “the 1954 Act”) which has now been repealed by the 1994 Act. It claims to be regularly submitting its returns. According to the applicant-company (hereinafter referred to as “the company”), the returns submitted by it for the periods of 12 months ending on March 31, 1989, March 31, 1990 and March 31, 1992 were accepted as correct and complete, and the assessments for the said periods were deemed to have been made in terms of Section 9A of the 1954 Act. It alleges that on or about July 2, 1999 it received three notices all dated June 25, 1999 from the Assistant Commissioner of Commercial Taxes, Corporate Division (respondent No. 1) directing it (the company) to produce books of accounts, documents, etc., for the aforesaid periods for assessment and to raise objection, if any. The declarations, in these notices, to the effect that no return was filed for the aforesaid periods, have been disputed by the company. It is also the company’s contention that notices being under Section 9(3) of the 1954 Act in respect of deemed assessments, they (the notices) presuppose (1) completion of a proceeding under Section 9A(2) read with the relevant rules in respect of the periods in question and (2) passing of orders of reopening of the deemed assessments. The company denies to have been given any opportunity of being heard in any such proceeding under Section 9A(2). According to it, in the absence of such opportunity the orders reopening the deemed assessments are illegal and invalid, and the impugned notices under Section 9(3) are equally illegal and beyond the jurisdiction of the respondent No. 1. The company, therefore, prays for an order quashing the notices.

2. The respondents in their affidavit-in-opposition have contended, inter alia, that a deemed assessment under Section 9A(1) does not contemplate finality of the deemed assessment which really is subject to the provisions of Section 9A(2) and also subject to discharging the obligation by the dealer under Rule 22A of the West Bengal Sales Tax Rules, 1954. The respondents, however, admit that though the company duly communicated them (the respondents) the change of address of its place of business, through inadvertence the Deputy Commissioner sent the show cause notices under Section 9A(2) read with Rule 22AA of the 1954 Rules to the company’s old address, viz., 5A, Heysan Road, Calcutta. They further contend that since none turned up on behalf of the company on the date fixed, the prescribed authority proceeded under the impression that the company did not have objection to the reopening of the deemed assessments. The respondents on the ground of despatch of the notices to the wrong address seek the liberty to proceed with the proceeding under Section 9A(2) afresh after giving the company an opportunity of being heard.

3. We have considered the contentions of both sides and are of the opinion that the impugned notices cannot be sustained. Firstly, the impugned notices speak of non-submission of returns necessitating assessment under Section 9(2). But in paragraph 5 of their affidavit-in-opposition the respondents have admitted the fact of submissions of returns for the relevant periods. Thus the notices have no pedestal to stand on. Secondly, a deemed assessment within the meaning of Section 9A can be reopened for the purpose of assessment under Section 9(2), provided the prescribed authority thinks it fit to do so after holding an enquiry as contemplated in Sub-rules (1) and (2) of Rule 22AA of the 1954 Rules read with Sub-section (2) of Section 9A of the 1954 Act. Admittedly, the notices to show cause against the proposed reopening of the deemed assessments were sent to the wrong address, i.e., to the old address where the place of business of the company is no more in existence. Such service of notice, if at all made, at wrong address amounts to non-service of notice. In consequence, the company had no knowledge of the proceeding and had no opportunity of being heard. Such proceeding, if at all initiated, is of no consequence and invalid in view of failure to serve notice on the company at the proper address. Though not urged in the affidavit-in-opposition, Mr. J.K. Goswami, learned State Representative, has taken up the plea that the company ought to have communicated the new address to the prescribed authority for the purpose of Section 9A(2). For the purpose of change of address it is not necessary for a dealer to send information in that regard to all authorities conceived under the provisions of 1954 Act, in anticipation that the one or the other such authority may have to take in future one or the other action under different sections of the Act. It is enough if the new address is duly incorporated into the Registration Certificate (R.C.) of the dealer and such incorporation presupposes necessary entry, in the official records, in regard to such change of address. Mr. Goswami had admitted that the R.C. was amended by entering the new address. Therefore, such a plea on behalf of the respondents is a caviling which merits no consideration.

4. The respondents’ plea that the company failed to discharge its obligation under Rule 22A has no bearing with the issue as is before us. If the returns of the company were discrepant and the company failed to communicate the same under this rule, the same may attract penal measures as contemplated in the statute. But such failure will not discharge the prescribed authority from its obligation under Rule 22AA.

5. Thus, the orders reopening (if all were in existence) the deemed assessments were passed without providing the company the opportunity of being heard and are, therefore, invalid. The impugned notices issued in pursuance of such an order are also invalid and are liable to be quashed.

6. Before we part with the matter, we like to mention that four independent causes of action, arising out of four sets of independent facts, have been clubbed together in this application. The plea that identical sets of facts have given rise to each such cause of action may at most be ground for analogous hearing but cannot be ground for clubbing them in a single application. Thus, such clubbing is hit by the provision of Rule 5(5) of the West Bengal Taxation Tribunal Rules, 1988. However, through inadvertence the instant application has been admitted in spite of such defect. So, for ends of justice we do not propose to dismiss the application at this stage for such defect. However, the question of the State’s revenue is involved so far court fees are concerned. Court fees has been paid for a single cause of action. Therefore, the order that we are going to pass is subject to payment of court fees payable for three other independent causes of actions.

7. Mr. Goswami has prayed for liberty of this Tribunal to issue fresh notices, if the Tribunal quashes the impugned ones. The question of giving liberty does not arise. If reopening of the deemed assessments was already barred by limitation before the filing of the instant application, the Tribunal is reluctant to exercise its extraordinary jurisdiction to extend the period of limitation particularly where no extraordinary circumstances exists justifying such extension. The competent authority was so neglectful as not to consult the official records to ascertain the latest address of the company mentioned therein. There is nothing to show that the authority acted with due diligence. No acknowledgement due card has been produced to show such a notice ever served. There is nothing to show if the authority concerned ever cared to take recourse to the proviso to Rule 43 when any such notice came back unserved.

8. In the result, the application is allowed. If the deficit court fees of Rs. 300 is paid within a fortnight, the impugned notices shall stand quashed. If the court fees as mentioned above is not paid by the company within the date mentioned, the instant application shall stand dismissed. We make no order as to costs.

A. Deb (Technical Member).

9. I agree.


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