JUDGMENT
R.R. Yadav, J.
1. The petitioner has filed the instant writ petition seeking a relief to quash the impugned order of Additional Commissioner Commercial Taxes, Jaipur (respondent No. 1) dated 3.12.1983 Annex. 6 to the writ petition and for restoring the order dated 24.7.1980 Annex. 2 to the writ petition passed by the Deputy Commissioner (Appeals) (respondent No. 2) on the ground, inter alia, that respondent No. 1 has no jurisdiction to set aside the orders of the Commercial Taxes Officer, Pali (respondent No. 3) dated 13.7.1979 Annx. 1 to the writ petition by substituting his own order enhancing the tax liability. According to the averments made in the writ petition, the order of the Commercial Taxes Officer. Pali has attained finality subject to the modification of order dated 24.7.1980 Annx. 2 to the writ petition passed by the Deputy Commissioner (Appeals) in exercise of his appellate jurisdiction conferred upon him Under Rule 27 of the Rules framed under the Rajasthan Entertainments and Advertisements Tax Act, 1957 (hereinafter referred to as ‘Act No. 24 of 1957’).
2. The aforesaid order dated 3.12.1983 Annx. 6 to the writ petition is also challenged on the ground that respondent No. 3 in his revision application, did not challenge his own order but has challenged the order of Deputy Commissioner (Appeals) dated 24.7.1980 Annx. 2 to the writ petition. Therefore, in absence of any challenge in revision, respondent No. 1 in exercise of his revisional Jurisdiction Under Rule 29 of the Rules framed under Act No. 24 of 1957, has no jurisdiction to set aside the orders of the Commercial Taxes Officer, Pali and has no authority to enhance the tax liability upon the petitioner.
3. After service of notice, the answering-respondents filed reply to the writ petition supported with an affidavit of Shri Shiv Kishan, Assistant Commissioner (Writs), Commercial Taxes Office, Jodhpur. In reply to the averments made in para 7 of the writ petition, it is stated that the State Government has not filed revisions against the orders dated 13.7.1979 (Annx. 1) passed by the Commercial Taxes Officer, Pali. The aforesaid averments made in para 7 to the reply filed on behalf of the answering-respondents are absolutely incorrect and run counter to the memo of revision Annx. 3 to the writ petition filed by the petitioner himself, which leads towards an irresistable conclusion that before the revisional court (respondent No. 1)the orders passed by the Commercial Taxes Officer, Pali were also questioned making a prayer, that revisions may be accepted and tax liability created by the then Commercial Taxes Officer, Pali may be enhanced.
4. It is apparent on the face of record from Annx. 4 and 5 to the writ petition that the revisional court while issuing notice to the petitioner in each revision has also enclosed a copy of the memo of revision alongwith notice by adding in hand-writing intimating and informing the petitioner to the effect that a prayer has been made before him for enhancement of tax liability against the demand of tax created by the Commercial Taxes Officer, Pali. The averments made in para 10 of the writ petition further throws a flood of light that the same procedure was applied by the revisional court in each 14 revisions filed before him.
5. It is mystery in the present case as to how the answering-respondents have filed reply to the averments made in the writ petition without having a glance on Annexures 3, 4 and 5 filed along with the writ petition, which are basis of the averments made in the present writ petition against the prevalent practice of filing a reply. This aspect of the matter assumes importance in view of the serious allegation to the effect that the tax evasion in the present case has been done in connivence of the local staff.
6. There are in-numerable typographical mistakes in the reply filed by the answering-respondents but no effort was made to correct these typographical mistakes in usual manner, as corrections are done in other replies filed by the State or its instrumentalities.
7. With anguish, I am constraint to hold that the reply filed on behalf of the answering-respondents is not acceptable on record as the affidavit filed in support of the reply is entirely bad, for non deposition of the contents on oath. The contents of paragraphs 2 and 3 of the affidavit filed in support of the reply are quoted below:
(1) …
(2) That the facts mentioned in the para No. 1 to ___ of the reply to the writ petition are true to my personal knowledge based on records.
(3) That the facts mentioned in the para No. 1 to ___ of the reply to the writ petition are true and believe to be true on legal advice, given by my Counsel Shri Bilam Chand Mehta, Advocate.
8. The contradictions in the verification Clause of the Affidavit with paragraphs 2 and 3, cannot be reconciled by any stretch of imagination. The affidavit filed in support of the reply to the writ petition is not in accordance with Chapter IV of the Rules of the Court. It is evident from perusal of the affidavit that the Oath Commissioner has not given a certificate as to whether the contents of the affidavit were explained to the deponent as contemplated Under Rule 47 of the Rules of the Court.
9. I wish, however, to observe with anguish that the affidavit filed in support of the reply is defective. As I appointed out earlier, the reply filed on behalf of the answering-respondents has been filed in slip-shod manner stating therein that the order passed by the Commercial Taxes Officer, Pali was not challenged by the State Government while according to Annx. 3 filed alongwith the writ petition, goes a long way to prove that the order passed by the Commercial Taxes Officer, Pali was challenged, therefore, reply filed on behalf of the answering-respondents of this type might-well in a given case leads to rejection of reply.
10. In view of the aforesaid facts and circumstances, before I consider the merit of the case a few relevant facts leading to this writ petition deserves to be noted.
11. Fourteen revisions were filed by the Commercial Taxes Officer, Pali for enhancement of tax liability created by the then Commercial Taxes Officer, Pali vide Annx. 3 to the writ petition, upon which, the revisional authority issued notices Annx. 4 and 5 intimating and informing to the petitioner along with a copy of the memo of revision in each revision which clearly indicates about enhancement of tax liability created by the then Commercial Taxes Officer, Pali. At the risk of repetition, it would be necessary to refer here the averments made in paragraph 10 of the writ petition to the effect that the revisional court has issued notices to the petitioner along with memo of revision and the same procedure was followed by him in all 14 revisions.
12. Facts of the case as alleged by the Department, are that the Commissioner Commercial Taxes received a complaint to the effect that the Proprietor of M/s Ganesh Talkies, Sumerpur had been evading entertainment tax with the connivence of the local staff, hence, the Commissioner Commercial Taxes vide his letter No.F. 15(25)Tax/ CCT/78/2164 dated 4.11.78 sent a copy of the complaint to the Deputy Commissioner (Adm.), who directed the Commercial Taxes Officer (AE), Jodhpur on 10.11.78 to immediately proceed for Sumerpur along with all the Assistant Commercial Taxes Officers (AE), Jodhpur and supporting staff for organising a surprise checking of the Cinema Hall. On surprise raid of the Cinema Hall at 3.00 pm on 10.11.78, the Commercial Taxes Officer (AE) found the following discrepancies;-
(a) To his surprise, he found Seven Series of Ticket Books belonging to the Balcony Class bearing S. Nos. from 3101 to 3200 simultaneously running parallel to each other. He also found that all these eleven Ticket Books were partly used. For the Balcony Class, he further found three more series of Ticket Books bearing S. Nos. from 3201 to 3300. Two of these books were partly used and one was found un-used.
For the First Class, eight Ticket Books were found bearing Section Nos. from 9401 to 9500. Tickets were issued from all the eight books and thus, all these eight books were partly used. Another set of two ticket books was found bearing S. Nos. 9501 to 9600. One of these books was partly used and the other was un-used.
In the Janta Class, the matters were further complicated as there were multiple series of Ticket Books-one set of Ticket Books bearing S. Nos. 55001 onward contained two books, out of which, one was partly used and the other was fully used. There was three parallel books bearing S.No. 57801 onward and all these books were found partly used. Two other books had S. Nos. beginning from 57901 onwards. One of these books was partly used and the other was un-used. There were yet two more books bearing S. Nos. 57701 onwards. One of them was fully used and other was partly used.
(b) The counter-foils of the tickets with the Gate-keepers were also checked and to their surprise the checking party found that 42 tickets belonging to parallel sets of ticket books were lying intact with the Gate-keepers. This mean that the parts of the counter-foils, which were to be given to the spectators who were admitted in the hall without properly having the counter-foil of the tickets meant for them. It was further found by the checking party that a large number of tickets available with the Gate-keepers were unstamped. The Cinema was not running on the return basis and it was incumbent on the part of the Proprietor to affix stamps on the tickets.
(c) The DCR was not found written upto date.
(d) The checking party made physical verification of the stock of stamps also. Stamps of five paisa denomination should have been only five in number according to the stamp register, were also found excess by 319 then what should have been according to the stock register of the stamps.
(e) To their surprise, the checking party also found that for 2.11.78 the entries of DCR were recorded on a blank paper. But these entries did not tally with those entries which ultimately came to be made in the DCR dated 2.11.78. It was found that the serial number of the tickets which found mentioned in the Kachha DCR on 2.11.78 were found entered in the entries of the DCR for 3.11.78.
(f) It was also mentioned by the checking party and is also evident from the record that throughout the checking and inspection the Proprietor did not extend any co-operation to the checking staff. He not only refused to put his signatures on the Fard checking but also refused to take a copy of the seizure memo, which was prepared by the checking party on the spot while impounding the record of the Cinema.
13. A show cause notice was given to the petitioner affording him an opportunity to explain all the discrepancies mentioned above. He was also called upon to show cause as to why his tax liability should not be increased on account of the aforesaid discrepancies for the entire period of 15 months beginning from October, 1977 onwards upto November, 1978, for which, the assessments were pending.
14. After affording a reasonable opportunity of being heard to the petitioner, respondent No. 3 made the assessment orders for 15 months beginning from September, 1977 onwards and he enhanced the tax liability for all these months on the basis of the best of his judgment.
15. Aggrieved against the order of Commercial Taxes Officer, the petitioner went in appeal. The Dy.Commissioner (Appeals) maintained the assessment order for the month of November, 1978, in which multiple series of Ticket Books were detected. Regarding the preceding 14 months the enhanced tax liability was set aside vide order dated 24.7.80 Ann. 2 to the writ petition against which, 14 revisions were filed by respondent No. 3 as stated above.
16. The revisional court vide his impugned order dated 3.12.83 Annx. 6 to the writ petition, decided all 14 revisions by a composite order. The revisional court by its aforesaid order, set aside the order dated 24.7.80 passed by the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur along with that of Commercial Taxes Officer, Pali against which, the instant writ petition has been filed before this Court.
17. I have heard Mr. Rajendra Mehta, learned Counsel for the petitioner and Mr. B.C. Mehta, learned Counsel for the respondents at length and have critically gone through the material available on record.
18. Mr. Rajendra Mehta, learned Counsel for the petitioner urged before me that in exercise of his revisional powers Under Rule 29 of the Rules framed under Act No. 24 of 1957, respondent No. 1 has power to “pass such order as he thinks fit” will include a power to modify the order of assessment of entertainment tax liability passed by Sub-ordinate authorities to him by re-fixing a tax liability upon the petitioner but the aforesaid expression will exclude the power of enhancement which has to be conferred expressly by the Statute. In support of his aforesaid contentions, learned Counsel for the petitioner placed reliance on a decision rendered by the Division Bench of Madras High Court in the case of P.Hajee Mohamed Saliah and Company v. State of Tamil Nadu and Anr. reported in 1983(54) STC 62 decision of the learned Single Judge of this Court in the case of Commercial Taxes Officer, Spl. Circle-I, Jaipur v. Kamal and Company reported in 1987(67) STC (Raj.) 136.
19. Learned Counsel for the petitioner further placed reliance in support of his aforesaid contention on a decision rendered by a Division Bench of Andhra Pradesh in the case of Balaji Boiled Rice Mill and Ors. v. Commercial Taxes Officer, Khammam and Anr. reported in 1988 (71) STC 86, and a decision rendered by the Apex Court in the case of Hukam Chand Mills Ltd. v. Commissioner Income-tax, Central Bombay, reported in 1967(LXIII) ITR 232. According to the learned Counsel for the petitioner, in view of the aforesaid decisions, the decision rendered by me in S.B. Civil Writ Petition No. 6684 of 1992 – M/s Kailash Talkies v. State of Rajasthan and Ors. decided on 6.2.1995 requires reconsideration.
20. Next contention of the learned Counsel for the petitioner is that if his first contention is not acceptable then according to my own. decision rendered in the case of M/s Kailash Talkies (supra), the order passed by the revisional court Annx. 6 to the writ petition, is liable to be quashed as no notice of enhancement was given to the petitioner.
21. Lastly, learned Counsel for the petitioner submitted that best assessment judgment of the revisional court enhancing the tax liability of the petitioner, is not based on evidence on record but it is based on guess and suspicion, which is not legally sustainable. In support of his contention, learned Counsel for the petitioner placed reliance on three cases rendered by the Apex Court reported in the case of Dhakeshwari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal 1954 (XXVI) ITR 775, State of Kerala v. Velukutty 1966 (XVII) STC 465 and State of Orissa v. Maharaja Shri B.P. Singh Deo .
22. Learned Counsel appearing on behalf of the answering-respondents refuted the aforesaid contentions raised on behalf of the petitioner and urged before me that expression “pass such orders in relation thereto as he thinks fit” has widest connotation used by the rule making authority, which includes enhancement of tax liability. According to the learned Counsel for the answering-respondents, the order passed by the revisional court is eminently just and proper and does not require any interference of this Court under Article 226 of the Constitution of India.
23. In nut-shell, according to the learned Counsel for the petitioner Mr. Rajendra Mehta, my decision in M/s Kailash Talkies (supra) where it has been held that the revisional court Under Rule 29 of the Rules framed under Act No. 24 of 1957 has jurisdiction to enhance the tax liability provided a notice for enhancement is given to the tax payer before enhancing his tax liability requires reconsideration. It is true while I was deciding the case of M/s Kailash Talkies (supra) and was interpreting the expression “pass such orders in relation thereto as he thinks fit” no decisions were cited before me. In view of the aforesaid fact, now I propose to interpret the aforesaid expression thread-bare in the light of decisions cited by Mr. Mehta, learned Counsel for the petitioner.
24. According to Mr. Rajendra Mehta, learned Counsel for the petitioner, the revisional court has power Under Rule 29 of the Rules framed under Act No. 24 of 1957 to “pass such orders in relation thereto as he thinks fit” only include a power to modify the order of assessment of entertainment tax liability or advertisement tax liability passed by the Sub-ordinate Authorities to the revisional court. But the aforesaid expression will exclude the power of enhancement which can be conferred expressly by the Statute. Since in the present case in hand, Under Rule 29 of the Rules framed under Act No. 24 of 1957, the Statute expressly does not provide for enhancement of tax liability, hence, the revisional court has no authority to enhance the tax liability of the petitioner. According to Mr.Rajendra Mehta, learned Counsel for the petitioner, his aforesaid argument is squarely covered from the decision rendered by the Division Bench of Madras High Court in the case P.Hajee Mohamed Saliah (Supra) where it is clearly ruled that under Section 32 of the Tamil Nadu Genera] Sales tax Act, 1959, the Deputy Commissioner as a revisional court has all the powers except the power of enhancement. I am not able to persuade myself to subscribe the view expressed by the Division Bench of Madras High Court in the case of P.Hajee Mohamed Saliah (Supra) for the following reasons:
(i) A close scrutiny of the decision rendered in P. Hajee Mohamed Saliash (supra), reveals that the aforesaid proposition of law holding that the revisional court had all the powers under Section 32 of the Tamil Nadu General Sales-tax Act, 1959 except the power of enhancement is based on the interpretation of Section 32 of the Tamil Nadu General Sales-tax Act, 1959. I have no advantage to examine all the provisions of the aforesaid Act and Rules framed thereunder as Mr. Rajendra Mehta, learned Counsel for the petitioner has not brought to my notice all the provisions of the aforesaid Act and Rules framed thereunder. It is unknown as to whether in the aforesaid Act and Rules was there separate provisions for enhancement of the tax liability. Therefore, it is not possible to hold as to whether the aforesaid interpretation was taken by the court in isolation of other provisions of the Act and Rules framed thereunder. It is also apparent from the said decision, that no attempt was made in the aforesaid decision to ascertain the aim and object of the legislature providing the revisional power under Section 32 of the Tamil Nadu General Sales-tax Act, 1959. In my humble opinion, whenever the provisions of statute or statutory Rules are required interpretation, the court of law always invokes rule of interpretation, which produces the result that satisfies its sense of justice in the case before it. In this respect, Lord Dennings in Sea-ford Court Estates v. Asher 1949(2) A11. E.R. 155(164) has said thus,-
When a defect appears in a Statute, a Judge cannot be simply fold his hands and blame the draftsman that he must supplement the written words so as to give ‘force and life’ to the intention of the legislature. A Judge must not alter the material of which the Act is woven but he can and should iron out the creases.
(ii) There is a new School of thought, according to which, the traditional methodology of interpreting a Statute with reference to “intention of the legislature” should now, be replaced by a new methodology of “attribution of purpose”. The following extract from an article in (1970) 33 Modern Law Review, pp. 199-200 by Harry Bloom explains the new idea, thus;-
In time however, some body will have to tackle the basic question how long can we sustain the fiction that when the legislature prescribes for a problem it provides a complete set of answers and that the court, when confronted with a difficult statute merely uses the techniques of construction to wring in innate meaning out of the words Prof, Hart and Sacks of Harvard University have expressed ideas on this which seem to be highly attractive. They argue that interpretation should not be regarded as a search for the purpose of legislature or even for the purpose of the statute, but as one of ‘attribution or purpose’. The court by asking ‘what purpose do we attribute to be the statute’ ? allows an inquiry into how best the statute can be interpreted and applied or related to other legislation What this mean is explained by Prof. Robert EKeeton, also of Harvard, in the recent book ‘Venturing to do justice’. I do not understand Hard and Sacks to imply that the purpose to be attributed at the time of Statute was enacted. I understand them to choose this formulation for the every reason that they wish to free the court from the handicaps of dealing with the fiction that the statute contains within it an answer to every question that might arise in its application.
(iii) In my considered opinion, the purpose of Act No. 24 of 1957 and the Rules framed thereunder are two folds; firstly, levy of entertainment tax and advertisement tax coupled with supplement the lost entertainment tax and advertisement tax for promoting the welfare of the general public and; secondly, to see that this is done under the provisions of the aforesaid Act and not by carrying out in a capricious or in an arbitrary manner, therefore, a revisional authority has been created Under Rule 29 of the aforesaid Rules. The scope and purpose of revision came up for consideration before the Apex Court in the case of Ram Kanai Jamini Ranjan Pal Pvt Ltd. v. Member, Board of Revenue, West Bengal reported in 1976(38) STC 01, where their Lordships rules, thus;-
What is revision ? The essence of revisional jurisdiction lies in the duty of the superior tribunal or officer entrusted with such jurisdiction to see that the sub-ordlnate tribunals or officers keep themselves within the bounds prescribed by law and that they do what their duty requires them to do and that they do it in a legal manner. This Jurisdiction being one of superintence and correction in appropriate cases, it is exercisable even suo motu as is clear from the numerous statutory provisions relating to revision found in various Acts and Regulations such as the Civil Procedure Code, Criminal Procedure Code Income-tax Act, etc. The jurisdiction of suo motu revision is not cribbed and cabined or confined by conditions and qualifications. The purpose of such an amplitude being given suo motu revisions appears to be as much to safe-guard the interest of the exchequer as in the interests of the assessee in whose favour the order is passed, does not prefer an appeal, the State would suffer unless its interests are safe-guarded by the exercise of such supervisory jurisdiction as the one given to the authorities above-mentioned.
(iv) With the aforesaid circumspection, now I propose to examine the relevant provisions of the Act No. 24 of 1957 and Rules framed thereunder, which indicates that the expression “pass such orders in relation thereto as he thinks fit” Under Rule 29 of the Rules framed under Act No. 24 of 1957 includes the power to enhance the assessment of tax liability and penalty. In my humble opinion, the purpose of revisional power conferred Under Rule 29 of the aforesaid Rules being given suo motu appears to be to safe-guard the interest of the exchequer and also to safe-guard the interest of the assessee. If there is an order against the interest of the State, naturally the Assessee in whose favour the order is passed may not prefer an appeal. In this way, the State would suffer unless its interests are safe-guarded by exercise of such supervisory jurisdiction as given in the case in hand Under Rule 29 of the Rules framed under the aforesaid Act. Once it becomes obvious that by Rule 29, the intention and purpose of the Rule making Authority is to safe-guard the interest of the State and public exchequer by exercising suo motu power or by re-examining the record of the Sub-ordinate authority by the revisional court to correct or amend the fault as the revisional court thinks it fit, is not hedged or qualified by any condition or limitation, hence, the revisional court has power to enhance the assessment against the petitioner. There is nothing in the aforesaid Rule confirming the power of revision to the Commissioner to circumscribe or limit of revisional powers for enhancement of tax. Once I am satisfied about the aforesaid intention and purpose of the rule making authority, I need not call into aid other rules of construction of Statute because the other rule of construction can be pressed into service only when the legislative intention and purpose is not clear.
(v) Yet, in abundant caution, I would like to probe the matter deeper by extending another rule of interpretation, which provides that the statute should be taken as a whole not in piece-meal. In case of P. Hajee Mohamed Saliah (supra), the Court has confined its interpretation without looking into the other provisions of the said Act and Rules framed thereunder. While according to me, a statute is passed as a whole and not in separate Sections or Rules and it must be assumed to be animated by one general purpose or intend. Hence, it is not permissible to adopt the process of etymological dissection and after taking the words out of their context to proceed to construe the statute or rule separately. In this regard, it would be pertinent to quote Sub-section (3) of Section 5B of Act No. 24 of 1957 which reads, thus;-
Section 5-B. Assessment;-
(1) …
(2) …
(3) Assessment made under this Section shall subject to any order in appeal or revision, as may be prescribed, be final.
(vi) It is admitted that in the present case, all the authorities including the revisional court have assessed the tax liability against the petitioner under Section 5B(2) of Act No. 24 of 1957 to the best of their judgment. In my considered opinion, in the present case, the assessment orders made by the Commercial Taxes Officer, Pali under Sub-section (2) of Section 5B of Act No. 24 of 1957 are subject to any order in appeal Under Rule 27 and subject to any order in revision Under Rule 29. Thus, the assessment orders made by the Commercial Taxes Officer, Pali (respondent No. 3) are subject to the order passed by the Appellate Court as well as by the Revisional Court and these orders will attain finality only subject to the revisional order passed by the revisional court in exercise of its powers Under Rule 29 of the Rules framed under Act No. 24 of 1957 which includes enhancement of tax liability by the revisional court.
(vii) My aforesaid view is further supported by Rule 32 of the Rules framed under Act No. 24 of 1957, which reads thus;-
32. Rectification of mistakes;- (1) With a view to rectifying any mistake apparent from the record, the Commissioner, the Deputy Commissioner (Appeals) or the Commercial Taxes Officer may amend any other order passed by it or him.
(2) Subject to the other provision of this Rule, the authority concerned-
(a) may make an amendment under Sub-rule (2) of his own motion, and
(b) shall made such amendment for rectifying such mistake which has been brought to its notice by the proprietor and where the authority concerned is,
(I) the appellate authority, by the Commercial Taxes Officer concerned also, and
(ii) the Commissioner, by the Commercial Taxes Officer concerned also.
(3) An amendment which has the effect of enhancing an assessment order, reducing a refund or otherwise increasing the liability of the proprietor shall not be made under this Rule unless the authority concerned has given a notice to the proprietor of his intention to do so and has allowed the proprietor a reasonable opportunity of being heard.
(4) No amendment under this Rule shall be made after the expiry of a year from the date of the order sought to be amended.
Sub-Rule (3) of Rule 32 clearly provides that such review by way of amendment which has the effect of enhancing an assessment order, reducing a refund or otherwise increasing the liability of the proprietor shall not be made under this Rule unless the authority concerned has given a notice to the proprietor of his intention to do so and has allowed the proprietor a reasonable opportunity of being heard.
(viii) A question arises here to the effect that if the argument of learned Counsel for the petitioner is accepted that in exercise of his revisional powers Under Rule 29 of the said Rules,the Commissioner has no authority to enhance the assessment than it is unthinkable that although the Commissioner has no power to enhance the tax liability in his revisional power but he can do so in exercise of his power of review Under Rule 32. If the contention of the learned Counsel for the petitioner is accepted that the revisional court has no power to enhance the tax liability in exercise of his revisional power then the power of revisional court to enhance the tax liability in exercise of power of review will lead to an anamolous result as well as an absurdity, which is not permissible looking to the intention and purpose of the rule making authority as discussed in the earlier part this judgment, therefore, in my humble opinion, in order to avoid uncertainty and friction under Sub-section (3) of Section 5B of Act No. 24 of 1957, Rule 29 and Rule 32 of the Rules framed under Act No. 24 of 1957, it is held that Rule 29 which purports to regulate the assessment includes power of enhancement of tax liability by the revisional court and a contention contrary to it, is not acceptable to me.
(ix) An identical question came up for consideration before the learned Single Judge of this Court in the case of Commercial Taxes Officer, Special Circle-I, Jaipur v. Kamal and Company (supra) where it is clearly held on the basis of the decision of the Supreme Court in Ram Kanai Jamini Pal’s case (supra) that the revisional power is although narrower than the appellate power but the confirment of suo motu power of revision enlarges the scope of revisional powers. I respectfully concur with the aforesaid view expressed by learned Single Judge of this Court which is based on the decision rendered by the Supreme Court in the case of Ram Kanai Jamini Ranjan Pal (supra).
(x) Although Under Rule 29 of the Rules framed under Act No. 24 of 1957, the word “enhancement” is not used but on deeper probe as discussed in preceding paragraphs, the said rule includes power of enhancement. If power of enhancement of tax liability Under Rule 29 aforesaid is excluded as argued by the learned Counsel for the petitioner then it would lead to grotesque result as there is no other separate provision prescribing a forum for enhancement to safe-guard the interest of the State and public exchequer. The exclusion of power of enhancement from the ambit of Rule 29 aforesaid would easily defeat the intention and purpose to arrest and regulate the tax evasion for which Act No. 24 of 1957 has also been enacted by the State legislature and Rules are framed thereunder.
(xi) In order to appreciate the aforesaid preposition of law, it would be necessary to understand the ratio decidendi of the case of Ram Kanai jamini Pal (supra) where the apex court while enterpreting the provisions of Bengal Finance (Sales tax) Act, 1941 rules that since there are no separate or specific provisions for assesment of escaped turn-over which may by implication, be said to exclude from the ambit of the revisional jurisdiction of the Commissioner the taking of additional facts into consideration and enhancing the gross turn-over, was found to be absolutely justified.
(xii) In Act No. 24 of 1957 and the Rules framed thereunder, there is no separate and specific provisions for enhancing the tax liability which may have occurred due to tax evasion procedure adopted by a proprietor, which may by necessary implication can be said to exclude the power of revisional court to enhance the tax liability from the ambit of the revisional jurisdiction of the Commissioner. In my humble opinion, the present case is squarely covered by the decision rendered by the Apex Court in the case of Ram Kanai Ranjan Pal (supra) and an argument contrary to it, is not acceptable.
(xiii) Other two decisions cited by the learned Counsel for the petitioner in support of his aforesaid contention, are not applicable to the facts and circumstances of the present case, therefore, they do not require any thread-bare discussion. It would be sufficient to observe that the interpretation of the expression “to pass such orders as the Tribunal thinks fit” under Section 33(4) of the Indian Income-tax Act, 1922 given by the Apex Court in the case of Hukumchand Mills Ltd. (supra) is not attracted in the present case as in that case, there was a separate provision creating a separate forum under Section 31 of the Indian Income-tax Act, 1922 conferring power of enhancement of tax liability upon the Appellate Assistant Commissioner against an assessee, not on the Tribunal who has remanded the case. Yet in the penultimate paragraph, the order of remand passed by the Tribunal was found to be justified and appeal was dismissed by the Supreme Court, The next decision cited by the learned Counsel for the petitioner in the case of Balaji Boiled Rice MM (supra) does not speak about the extent of power of revisional court to enhance or not to enhance the tax liability upon an assessee but while interpreting Sub-section (4) of Section 20 of Andhra pradesh General Sales Tax Act ruled that the Deputy Commissioner could not have passed an order without putting the assessee on notice and giving him an opportunity to show cause against the proposed enhancement. As a matter of fact there is no quarrel with the proposition of law laid down in the aforesaid case and the decision taken by me in the case of M/s. Kailash Talkies (supra) except that in the decision taken in the case of Balaji Boiled Rice MM (Supra) there were positive words used under Sub-section (4) of Section 20 for giving a notice to an assessee against the proposed enhancement and no order could be passed under Sub-section (1) and Sub-section (2) enhancing any assessment unless an opportunity of hearing is afforded to him but in case of M/s. Kailash Talkies (Supra), there are no specific provisions either in Act No. 24 of 1957 or in the rules framed thereunder yet it is held that before enhancing any assessment against an assessee the revisional court would be under obligation to give a notice to show cause and enhancement can be made after affording an opportunity of being heard. My aforesaid view is buttressed by a recent decision rendered by the Supreme Court in the case of Menka Gandhi v. Union of India and Ors. .
25. For the reasons given in the preceding paragraphs, I am fully satisfied that the decision taken by me in the case of M/s. Kailash Talkies (supra) holding that the expression “to pass such orders in relation there to as he may think Jit” used Under Rule 29 of the Rules framed under Act No. 24 of 1957 includes within its ambit the power to enhance the tax liability against an assessee provided a notice for enhancement is given to him and assessee is afforded an opportunity of being heard. Such order of enhancement could not be passed by way of surprise to an assessee,does not require reconsideration in the light of the afore-mentioned decisions cited by the learned Counsel for the petitioner.
26. The next contention of the learned Counsel for the petitioner before this Court is that the case of the petitioner is squarely covered by my own decision rendered in the case of M/s Kailash Talkies (supra), inasmuch, in the present case no notice of enhancement is given to the petitioner. A close scrutiny of Annx. 3, 4 and 5 leads towards an irresistable conclusion that the revisional court has issued a notice accompanied by a copy of memo of revision which clearly indicates that a prayer has been made in this revision by respondent No. 3 for enhancement of tax liability against the demand of tax liability created by the Commercial Taxes officer, Pali. The averments made in pare 10 of the writ petition indicates that the same procedure was adopted by the revisional court in each revision filed before him.
27. The aforesaid service of notice accompanied by memo of each revision which clearly indicates about the enhancement of tax liability against the demand of tax created by the Commercial Taxes Officer, Pali must be taken to be a sufficient notice to the petitioner in the present case. In my considered opinion the revisional court by issuing notice accompanied by memo of each revision,had given sufficient opportunity of hearing to petitioner and the petitioner had an opportunity of presenting his case in respect of supporting the findings of the courts below and he had also an opportunity to oppose enhancement of tax liability.
28. In view of the aforesaid facts and circumstances of the case, it cannot be said that the order passed by the respondent No. 1 is bad for want of notice and for want of opportunity of hearing. It cannot be said that order of enhancement of tax liability has been passed against him by way of surprise.
29. The law either under Act No. 24 of 1957 or the Rules framed thereunder does not prescribe any particular formality which should be complied with before tax liability is enhanced under Rule 29. In abundant caution, keeping in view the principles of natural justice, it was held by this Court in the case of M/s. Kailash Talkies (supra) that a proprietor or an assessee must be given an opportunity of being heard against enhancement of tax liability. I am fully satisfied that in the present case the tax liability has not been enhanced against the petitioner by way of surprise but he was given an opportunity of being heard and as such no prejudice has been caused to him by reason of a specific notice of enhancement.
30. As a result of aforementioned discussion,in the present facts and circumstances of the case in hand the decision rendered by me in the case of M/s. Kailash Talkies (supra) is not applicable. In the present case, the enhancement of tax liability against the petitioner cannot be said to have been enhanced by the Commissioner by way of surprise. The petitioner was given full opportunity of hearing by respondent No. 1 and contention contrary to it raised by the learned Counsel for the petitioner is not tenable.
31. Lastly, learned Counsel for the petitioner submitted that the best assessment judgment of the revisional court enhancing the tax liability of the petitioner is not based on evidence on. record but it is based on guess and suspicion which is not legally sustainable. He placed reliance in support of his aforesaid arguments on the decisions rendered in the cases of State of Orissa v. Maharaja Shri B.P. Singh Deo , Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal 1954 (XXVI) ITR 775 and State of Kerala v. C. Velukutty 1966 (XVII) STC 465.
32. Now, I propose to understand the aforesaid decisions rendered by the Apex Court in passing orders for assessment by way of best judgment assessment. It is easily deducible from the pronouncement made by the Supreme Court that an authority making assessment on the basis of best Judgment is not fettered by technical rules of evidence and pleadings and he is entitled to act on material which may not be accepted as evidence in a court of law but the assessing authority is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. Though there is an element of guess work in a best judgment assessment. It is ruled by the Apex Court that the best judgment assessment should not be a wild one but shall have a reasonable nexus for the available material and circumstance of each case. The assessing authorities are prohibited by the Apex Court to make an arbitrary order for assessment by way of best judgment assessment.
33. In case of Dhakeswari Cotton Mills Ltd. (supra), the Apex Court ruled that in making an assessment under Section 23(3) of the Indian Income-tax Act, the Income-tax Officer is not fettered by technical rules of evidence and pleadings and he is entitled to act on material which may not be accepted as evidence in a court of law but the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all.
34. In the case of C. Velukutty (supra), the Apex court ruled that there is an element of guess work in a best judgment assessment it shall not be a wild one but shall have a reasonable nexus to the available material and the circumstances of each case. Though Sub-section (2) of. Section 12 of the Act provides for a summary method because of the default of the assessee it does not enable the assessing authority to function capriciously without regard for the available material.
35. In the case of Maharaja Shri B.P. Singh Deo (supra), their Lordships held that apart from coming to the conclusion that the materials placed by the assessee were not reliable the Assistant Collector has given no reason for enhancing the assessment. It is not a power that can be exercised under the sweet will and pleasure of the concerned authority. In other words, the assessment must be based on some relevant material.
36. The basic question in the present case would be as to whether there was any reasonable nexus before the revisional court to enhance the tax liability of the petitioner. The revisional court in the present case, has recorded a categorical finding after analytical discussion of the material available on record to the effect that the enhancement done by the Commercial Taxes Officer, Pali (respondent No. 3) is not based on any objective criterian and quantum of enhancement is just arbitrary and is not based on any reasoning whatsoever.
37. According to the revisional court, it is manifestly clear that there is a taxe vasion by the petitioner and this continued for several months incompassing the entire period under consideration. It is found by the revisional court that the tax liability found during shows when the same were inspected on 10.11.78, was roughly 2 1/2 times more than what it was during the preceding and succeeding shows. The revisional court after taking into consideration for the locality and giving a fair deal to the petitioner-proprietor held that tax liability of the petitioner should have atleast been double than what he had actually shown in his return.
38. In my humble opinion, the state of the stamp Register, the availability of untorn and unstamped tickets with the Gate-keepers, the incomplete D.C.R. and also the wrong entries in the D.C.R. on 10.11.78 all lead towards an irresistable conclusion that the petitioner had indulged in the tax evasion in a very crude and blatant fashion not only in November, 1978 but during the preceding months also. In my humble opinion.the power of revisional court is not fettered by technical rules of evidence and pleadings and he was entitled to act on the material found at the time of checking on 10.11.78 which indicates towards crude tax evasion of the petitioner. Thus in the present case, there was a reasonable nexus to enhance the tax liability of the petitioner by the revisional court. The enhancement of tax by way of best judgment by the revisional court in the present case, cannot be said to be based on mere suspicion but there are reasonable nexus in enhancing the tax liability of the petitioner, as stated above.
39. A close scrutiny of the order of the revisional court throws a flood of light that the revisional court has given reasons for enhancing the assessment by way of his best judgment assessment. The order passed by the revisional court disclosed reasons, material evidence, circumstance and reasonable nexus on the basis of which he has enhanced the assessment by way of best judgment assessment with which I am at one. In my humble opinion, the order passed by the revisional court enhancing the tax liability of the petitioner cannot be said to be wild one but it has a reasonable nexus to the available material and circumstances of the present case, therefore, last argument raised by the learned Counsel for the petitioner also does not hold water and it is hereby repelled.
40. For the reasons stated above, there is no substance in the writ petition and as such it is accordingly dismissed. In the facts and circumstances of the case, there will be no order as to costs.