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2019 DIGILAW 91 (JHR)

Sunil Kumar Sawa v. State of Jharkhand

2019-01-10

ANIRUDDHA BOSE, APARESH KUMAR SINGH

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JUDGMENT : Writ petitioner has sought review of the order dated 28.03.2012 in WPT Nos. 5323/2011 and 5356/2011, which reads as under: “For the assessment years 1985-86 and 1986-87, assessment order was passed by the Assessing Officer on 21.3.1994, which was the best judgment assessment, in view of non-furnishing of the relevant books of accounts by the assesse. The petitioner preferred revision before the revisional authority, Commissioner of Commercial Taxes and the petitioner’s revision was dismissed, vide order dated 20.5.1999, against which the petitioner preferred further revision which was also dismissed, vide order dated 2.4.2009. Hence, the petitioner has approached this Court to challenge the above three orders. 2. According to the learned counsel for the petitioner, the petitioner was not supplied with the copy of the report of investigation bureau of the department and therefore, the petitioner’s case was prejudiced and the petitioner could not take defence. 3. This point, however, was not raised either before the Assessing Officer or first revisional authority or second revisional authority and has been sought to be raised for the first time in these writ petitions. Supplying copy of the said report to the petitioner is a question of fact and we, therefore, do not find any reason to permit the petitioner to raise this ground at this belated stage, which has been raised after delay of about more than 17 years from the date of the order of the Assessing Officer. 4. From the reasons given in the three orders, we are of the opinion that the Assessing Officer had no option but to assess the turn-over on the basis of best judgment as the petitioner did not produce books of accounts and while doing so, the Assessing Officer also considered turn-over of previous year, i.e. 1984-85 and even after taking low turn-over of that year, assessed the turn-over on the basis of the materials which were available with the Assessing Officer, which came in possession of the department in search operation. We do not, thus, find any merit in these petitions which are dismissed.” 2. Learned Senior counsel representing the petitioner submits that the orders suffer from an error apparent on the face of record, since the petitioner had raised an issue relating to findings recorded by the Investigation Bureau even before the Assessment Officer and Tribunal. We do not, thus, find any merit in these petitions which are dismissed.” 2. Learned Senior counsel representing the petitioner submits that the orders suffer from an error apparent on the face of record, since the petitioner had raised an issue relating to findings recorded by the Investigation Bureau even before the Assessment Officer and Tribunal. It is submitted that such a request was made before the learned Tribunal and has also been taken note of at para-4 of the judgment dated 02.04.2009 (Annexure-9). A finding has been recorded against it by the learned Tribunal without supply of the findings of the Investigation Bureau, the order of the learned Tribunal suffers from violation of principles of natural justice. Such statements have been made at para-28 and 29 of the writ petition also. The writ court however, erroneously recorded that this issue was not raised before the Assessing Officer or the first Revisional Authority or second Revisional Authority and has been sought to be raised for the first time in these writ petitions. On such erroneous understanding, the writ court refused to interfere in the matter by holding that the Assessing Officer had no option but to assess the turnover on the basis of best judgment as the petitioner did not produce any books of accounts. The impugned orders therefore suffer from an error apparent on the face of record which requires to be reviewed. As such, it may be set aside and the writ petitions be heard afresh. 3. Learned counsel for the Revenue/State has filed a counter affidavit in the writ petition as also in the present Review petition. Learned Government Advocate submits that the assessment orders for the period 1985-86 and 1986-87 were passed on the basis of the findings recorded by the Investigation Bureau, Jamshedpur Division, Jamshedpur. Petitioner in 1995 filed suo-motu revision before the Commissioner under section 46(6) of Jharkhand Finance Act, 1981, but failed to appear before the court inspite of repeated reminders. Hence, learned Commissioner was compelled to pass ex-parte order and rejected the revision. Petitioner was repeatedly served notices to appear and put forward his claim. Learned counsel further submits that the revision preferred before the Commercial Taxes Tribunal was also rejected on account of the failure of the petitioner to produce his books of accounts. Hence, learned Commissioner was compelled to pass ex-parte order and rejected the revision. Petitioner was repeatedly served notices to appear and put forward his claim. Learned counsel further submits that the revision preferred before the Commercial Taxes Tribunal was also rejected on account of the failure of the petitioner to produce his books of accounts. Petitioner somehow wants to defer the payment of his liability and has taken a non-existent ground to seek review of the impugned order. This ground has not been the basis for passing of the impugned order by the writ court. Therefore, no grounds for review are made out. 4. We have considered the submissions of learned counsel for the parties, gone through the materials on record and perused the impugned order as well. We find from the enclosed annexures-4 & 5 being the assessment order that no regular books of account was found or produced by the dealer. Therefore, verification could not be made at the spot. The person present had expressed his inability to produce the books of account and hence, books of the books and papers found at the business premises were seized under section 33(3) of Bihar Finance Act, 1981 Part-1. He was directed to appear with complete books of account before the Inspecting Officers for detailed examination and verification. The dealer on receipt of the seized books of account was noticed to appear for detailed verification. The dealer appeared, but did not produce any other books of account for the reason best known to him. Since dealer had failed to produce any other books of account, the assessing officer was left with no alternative but to complete the assessment to the best of judgment. From the order passed by the Commissioner, Commercial Taxes on the revision petition preferred by the petitioner (Annexure-7), it appears that the same was rejected in an ex-parte manner on 17.05.1999/20.05.1999 since it was pending from 1995 and there was no attendance on the part of the Assessee. 5. In the second revision petition before the Commercial Taxes Tribunal, the petitioner contended that the order of assessing officer suffers from patent error by not supplying the copy of the report of the Bureau of investigation which was used against him. 5. In the second revision petition before the Commercial Taxes Tribunal, the petitioner contended that the order of assessing officer suffers from patent error by not supplying the copy of the report of the Bureau of investigation which was used against him. On behalf of the State, ACCT, Singhbhum Circle, Jamshedpur made submissions that the regular books of account were not seized and the petitioner deliberately did not produce the same because there was huge manipulation on the part of the petitioner. Learned Tribunal upon hearing the parties, came to an opinion that the Assessing Officer took pain to discuss about all cash books, Rokar Bahi and other documents which were seized by the authority of Investigation Bureau which were examined in detail from day to day in the presence of the dealer by the officer of Bureau of Investigation, Jamshedpur Division. The petitioner was served notices to appear for hearing and produce the books of account. Though the petitioner appeared but he failed to produce any documents or other books of account. He has been given opportunity to explain the difference, but no explanation was adduced by the petitioner at the time of hearing. It was further noticed from the order of the Commissioner, Commercial Taxes that the dealer could not satisfactorily explain about the loose Purja before the Assessing Officer and therefore, assessment was made on the basis of best judgment. In these circumstances, revision petitions were dismissed. 6. The writ court took note of the fact that for the assessment years 1985-86 and 1986-87, assessment orders were passed by the Assessing Officer on 21.03.1994 on the basis of the best judgment assessment in view of non furnishing of the relevant books of accounts by the Assessee. The contention of the petitioner that the report of the Investigation Bureau of the Department was not furnished to the petitioner, was also taken note of and it was observed that supply of copy of the report is a question of fact which the writ court did not find any reason to permit him to raise at belated stage after a delay of 17 years from the date of the order of Assessing Officer. As such, for the reasons given in the three orders, the writ court was of the opinion that the Assessing Officer had no option to assess the turnover on the basis of best judgment as the petitioner did not produce the books of accounts. While doing so, the Assessing Officer also considered the turnover of the previous year i.e. 1984-85, even taking low turnover of that year, assessed the turnover on the basis of the materials which were available with the Assessing Officer. 7. From the conspectus of the facts, noted above, and on perusal of the impugned order, we are of the considered view that the findings recorded by the learned writ court are not suffering from errors apparent on the face of record as it is not based upon the contention urged by the petitioner relating to non-supply of the report of the Investigation Bureau. The entire sequence of facts starting from the orders of Assessing Officer, Commissioner, Commercial Taxes and Commercial Taxes Tribunal have been taken into note of by the writ court to come to an opinion that the Assessing Officer had no option but to assess the turnover on the basis of best judgment on the failure of the Assessee to produce the relevant books of account. We do not wish to observe any further in this Review petition. However, we are of the considered view that the order impugned does not suffer from an error apparent on the face of record. Accordingly, instant petitions are dismissed. Interlocutory applications are closed.