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2000 DIGILAW 332 (CAL)

SHARAD NARULA v. STATE OF WEST BENGAL

2000-07-11

HRISHIKESH BANERJI, S.B.SINHA

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S. B. SINHA, J. ( 1 ) BOTH these applications involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. ( 2 ) THE fact of the matter is not much in dispute and is borne out from the records of the case. ( 3 ) THE petitioner which is a Hindu family concern carries on a business of running a guest house known as Restoria Guest House. It is not in dispute that it is liable to pay luxury tax in terms of the provisions of the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972 (for short Act ). Before the assessing authority, an adjournment was sought for and was granted. On 7-7-94, a second adjournment was sought for owing to the illness of the Accountant who was entrusted by the petitioner to appear before the respondent No. 2 However, on 5-8-94, the respondent No. 2 passed an order of assessment purporting to be on the basis of best judgment assessment stating :"no return has been filed as per provisions of the Act. No tax has been paid. Rather it appears from Inspector's Report dated 3-8-94 that the proprietor had deliberately avoiding payment of due tax already collected from the public and has been avoiding production of Registers, Bills etc. for verification in spite of repeated reminders on visit to the hotel by the Inspector from time to time. Under the circumstances I have noother alternative than to assess u/s. 5 (2) Luxury Tax payable u/s. 4 (b) of the West Bengal Entertainments and Luxuries (Hotels and Restaurant) Tax Act, 1972 to the best of my juddgment. " ( 4 ) FOR the purpose of preferring an appeal, certified copy was applied for, and according to the petitioner, certified copy was not granted on 14-2-95 and 14-3-95 and the same was finally granted on 27-11-98. Appeals were filed on 3-12-98. ( 5 ) 50% tax together with entire penal interest was deposited on 18-5-99. On 24-5-99 appeals were heard and the same were rejected on the ground of limitation. An application under Article 226 of the Constitution of India was filed in terms of Section 8 of the West Bengal Taxation Tribunal Act, which was also dismissed by an order dated 27-8-99. ( 6 ) MR. On 24-5-99 appeals were heard and the same were rejected on the ground of limitation. An application under Article 226 of the Constitution of India was filed in terms of Section 8 of the West Bengal Taxation Tribunal Act, which was also dismissed by an order dated 27-8-99. ( 6 ) MR. Bose, learned counsel appearing on behalf of the petitioner, inter alia, submitted that the learned Tribunal as also the authorities under the Act went wrong in passing a best judgment assessment order and dismissing the appeal having regard to the fact that while passing the order, provision of Section 5 (2) of the Act had not been complied with, and in any event, the respondent No. 2 could not have relied upon the report of the Inspector which per se was violative of the principles of natural justice. Learned counsel submitted that the learned Tribunal committed an error in so far as it failed to take into consideration the fact that the petitioner could deposit the entire amount of tax and penalty for the purpose of preferring an appeal before the said appeal was heard. In support of the said contention, strong reliance has been placed in Shyam Kishore v. Municipal Corporation of Delhi, reported in AIR 1992 SC 2279 . Such taxes and penalties, according to the petitioner, having been paid in terms of Rule 12 (3) of the Rules, the same ought to have been accepted. ( 7 ) THE Commissioner in his order dated 24-5-99 noticed that the demand notices had been received on 12-8-94 and 13-8-94 and the application for certified copy was filed only on 17-11-94 in respect of both the cases. The purported explanation offered by the petitioner herein could not be substantiated before the Commissioner. The Commissioner has further come to the conclusion that no explanation had been given in respect of the period 18-9-92 to 4-10-94-The reasons adduced by the petitioner for not filing the application for certified copy within the prescribed time, could not satisfy the Commissioner. The learned Tribunal also, having regard to the fact of the matter, did not accept the explanation offered by the petitioner. ( 8 ) ALTHOUGH a substantial question has been raised by the petitioner, it appears that the said question had not been raised either before the Commissioner or before the learned Tribunal. The learned Tribunal also, having regard to the fact of the matter, did not accept the explanation offered by the petitioner. ( 8 ) ALTHOUGH a substantial question has been raised by the petitioner, it appears that the said question had not been raised either before the Commissioner or before the learned Tribunal. Such a question cannot, therefore, be permitted to be raised for the first time before this Court. Furthermore, the best judgment assessment having been passed on 19-4-94, we do not find any reason why certified copy could be obtained only on 27-11-98. The purported explanation of the petitioner to the effect that its representative had gone to the department on a number of occasions but was told by the clerk that the same was not ready, cannot be believed. In any event, having regard to the fact that both the learned Tribunal as also the Commissioner has refused to accept the explanation offered by the petitioner herein in the matter of condonation of delay in preferring the appeal and the reasons assigned therefor, in our opinion, being not perverse, the same should not be interfered with in exercise of our power of judicial review. As on this question alone, the writ applications are liable to be dismissed, we need not go into the other questions raised at the Bar. ( 9 ) THESE applications are, therefore, dismissed. As nobody appears on behalf of the respondents, there shall be no order as to costs. ( 10 ) H. BANERJI, J. : -. I agree. Applications dismissed.