Ranjan Gogoi, J.@mdashThe validity of a best judgment assessment made by an order date 10.11.1993 by the Jurisdictional Superintendent of Taxes is the subject matter of challenge in this writ proceeding. The penalty imposed by the aforesaid order dated 10.11.1993 is also an incidental challenge in the present proceedings.
2. The Assam General Sales Tax Act, 1993 (hereinafter referred to as Act of 1993) consolidated the law regarding levy of tax on sales and purchase of goods in the State of Assam. The said statutory enactment came into force with effect from 1.7.1993. The petitioner who used to carry on the business of the sale of lottery tickets, an item which was not taxable prior to coming into force of the Act, received a notice dated 2.8.1993 from the Superintendent of Taxes, Guwahati Unit-C informing the petitioner that it had sold lottery ticket of the value of Rs. 51,15,485.00 for the period from 1.7.1993 to 31.7.1993 attracting tax at the rate of 10%. Consequently, the writ petitioner was asked to apply for registration on or before 31.7.1993 and also to deposit the tax due for the month of July, 1993. It appears that the petitioner did get itself registered as dealer under the Act of 1993 and the liability of the dealer to pay tax under the said Act was made effective from 1.7.1993. Thereafter, on 1.10.1993 the Jurisdictional Superintendent of Taxes again wrote to the petitioner to show-cause in writing and to appear personally on 7.10.1993 as to why penalty should not be imposed on it for failure to submit the returns for the month of July and August, 1993. The aforesaid communication was followed by a subsequent notice in writing dated 8.10.1993 intimating the petitioner of its failure to submit requisite returns for the aforesaid two months and asking the petitioner to pay the entire tax due within 14.10.1993. In the aforesaid communication dated 8.10.1993 it has further been mentioned that in the event, the petitioner did not file the returns within 14.10.1993, tax will be assessed on the basis of the turnovers mentioned in the said communication. The petitioner was further informed that if it failed to submit its returns within 14.10.1993, penalty u/s 23(c) of the Act would be imposed. The petitioner by its reply dated 14.10.1993 requested for grant of three weeks time for payment of tax and submission of returns and also prayed for dropping of proposed proceeding of summary assessment and penalty against the petitioner. It may be noticed that the petitioner in its reply dated 14.10.1993 did not raise any dispute with regard to the turnovers for the months of July and August 1993 as mentioned in the notice dated 8.10.1993. On the contrary the petitioner, in the said reply dated 14.10.1993, had indicated certain financial difficulties for its inability to pay the entire tax due for the period in question and the fact that a sum of Rs. 30,000 was paid as advance tax. It appears from the records produced on behalf of the State respondents that time as prayed for was granted upto 27.10.1993. On 27.10.1993, 15-20 days further time was again prayed for and it appears that time until 6.11.1993 was allowed. On 8.11.1993 returns for the two months in question were filed by the petitioner and as the said returns were not accompanied by the requisite proof of full payment of tax due, the authority by the order dated 10.11.1993, proceeded to make a best judgment assessment under the provisions of Section 17(5) of the Act of 1993 read with Rule 25(3) of the Rules. By the same order dated 10.11.1993 penalty was imposed @ 1 1/2 times the tax payable under the provisions of Section 23 of Act. Aggrieved, this instance writ petition been filed.
3. Dr. A Saraf, learned senior counsel appearing for the writ petitioner has assailed the impugned order, on what appears to be two principal grounds. Learned counsel by relying on the decision of this court in the case Dwijender Kumar Bhattacarjee v. Superintendent of Taxes, Government of Tripura and Ors. reported in 1989 (2) GLR 461 has contended that a perusal of the order dated 10.11.1993 passed by the jurisdictional Superintendent of Taxes would go to show that the said authority had finalized the best judgment assessment on the basis of certain documents in his possession. As the power of assessing officer to make an assessment including a best judgment assessment is a quasi-judicial power, learned counsel, on the authority of the law stated above, submits that the aforesaid materials ought to have been made available to the writ petitioner in consonance with the principles of natural justice. As the same has not been done, the impugned order dated 10.11.1993, insofar as the assessment is concerned, is vitiated in law. Secondly, it has been argued by the learned counsel for the petitioner that as returns were filed by the petitioner on 8.11.1993, exercise of power u/s 17(5) of the Act is bad in law and the jurisdictional Superintendent of Taxes ought to have finalized the assessment on the basis of the returns filed by the petitioner by invoking the provisions of Section 17(3) of the Act.
4. Insofar as imposition of penalty is concerned, learned counsel by placing reliance on a judgment of this court in the case in Brajalal Banik v. State of Tripura reported in (1990) 79 STC 217 Gau, has contended that the power to impose penalty following default in payment of tax is not automatic and penalty has to be imposed upon a defaulter by taking into consideration all relevant facts and circumstances, like the reasons for default, the period of default, etc. In the instant case penalty has been imposed at highest rate applicable, i.e., 1 1/2 times the tax payable and that too without recording any reason. Learned counsel further submits that penalty could have been imposed by the authority only after affording the writ petitioner an opportunity to show cause against the penalty proposed and the order of penalty having been clubbed along with the assessment order, it discloses an error apparent on the face of the record, warranting interference by this court.
5. Mr. R. K. Bora, learned State counsel, while defending the order dated 10.11.1993 has relied upon the records in original placed before the court and has contended that the summary assessment as well as the penalty imposed by order dated 10.11.1993 does not disclose any such error which would require interference by this court in exercise of its writ power.
6. The submissions advanced by the learned counsel for the parties have been duly considered.
7. Insofar as the first contention advanced on behalf of the writ petitioner is concerned, what transpires from the records of the case as well as from the various communications addressed to the writ petitioner, reference of which has been made in the preceding paragraphs of this judgment, is that time and again the writ petitioner was informed of the turn over on the basis of which assessment was proposed to be made by the authority, in the event of failure of the petitioner to submit a valid return. When such turn over on the basis of which best judgment assessment was proposed was made available to the writ petitioner and he was given several opportunities to show-cause against the same, the requirement spelt out in the judgment of this court in case of Dwijender Kumar Bhattacharjee (supra) cannot be said to have not been met by the authority concerned. The petitioner, as already noticed, did not raise any dispute on this score, in my consideration view, the requirement of compliance with the principles of fairness was adequately met by the authority in the present case. The first submission therefore, has to fail.
Coming to the second submission of the writ petitioner, i.e., that as the writ petitioner has filed its return on 8.11.1993, the authority should have proceeded to finalize the assessment on the basis of the return filed, has to be negatived, inasmuch as, u/s 17(5) of the Act read with Rule 25(3) of the Rules, it is clear that if the statement of turnover, i.e., the return filed, appears to the assessing authority to be incorrect and incomplete, assessment may be made provisionally to the best of judgment of the assessing officer. Though the petitioner at no point of time had raised any dispute with regard to the turnovers mentioned in the repeated notices issued, in the returns filed a negligible turn over was shown which did not satisfy the assessing officer, who, in such circumstances proceeded according to his best judgment. In that view of the matter, the refusal of the authority to proceed on the basis of the return filed and instead to make a best judgment assessment u/s 17(5) of the Act, cannot be faulted with. The second argument advanced, therefore, has also to fail.
8. Coming to the question of penalty, what is apparent is that the language of Section 23 of the Act which empowers the authority to impose penalty, is quite different from the language of Section 26 of Tripura Sales Tax Act, which was interpreted by a Division Bench of this court in Brajalal Banik v. State of Tripura and Anr., (supra). Whereas under the Tripura Act the penalty provision is attracted only on default of payment of tax within the stipulated time, under the Act of 1993 the penalty provision is attracted in any of the situations enumerated in Section 23. Accordingly, the decision of this court in the case of Brajalal Banik (supra) pressed into service by the learned counsel for the petitioner, is of no avail. However, this court has noticed that the penalty at the maximum rate has been imposed by the authority in the present case. Such maximum penalty as contemplated by the provisions of Section 23 (ii) of the Act which is attracted in a case falling under Clause (b), (c), (d) or Clause (g) of Section 23(1). Which particular clause of Section 23(1) has been applied in the present case is not disclosed in the impugned order dated 10.11.1993. The notices issued to the petitioner contemplated imposition of penalty in the event of the failure of the petitioner to file its returns which situation is covered by Clause (e) of the Section 23(1) of the Act. In that event penalty not exceeding half of the tax assessed could have been imposed. In view of what has been discussed above, the order dated 10.11.1993 insofar as imposition of penalty is concerned is being interfered with and the matter is remanded for a fresh decision on the question of penalty after giving an opportunity to the writ petitioner.
9. The writ petition is disposed of in terms of the above directions.
