Sohanraj Singvi vs Commissioner of Taxes

P.K. Goswami, J.—This case comes to this Court on a reference u/s 32(4) of the Assam Sales Tax Act, 1947, hereinafter called the Act. The Petitioner-Assessee was assessed to sales tax by the Superintendent of Taxes by his order dated 5-4-1962 after duo notice to him as required under the law. It so happened that on 9-1-1962 two Inspectors of Taxes made a surprise visit to his shop and tried to take possession of the credit account books, apparently perhaps there was some information that his account books were not kept in a proper order. The Petitioner was absent at the time and when he returned made a row with the officers concerned challenging their authority, and it is said that the books of account were taken away from the possession of the officers and later on concealed and not made available to the department when they, asked for the books to be produced. The Superintendent of Taxes after having rejected the statements of account, which were produced before him, gave a notice to the Petitioner on 3-3-1962 mentioning about the visit of the Inspectors to his shop for the purpose of seizing the accounts, and also asked him to show cause against various allegations and informations which were at that time available to the Superintendent after the books of accounts had been produced by the Petitioner. In due course, on 9-3-1962 the Petitioner submitted his explanation, which was taken into consideration by the Superintendent of Taxes and was disbelieved and the assessment followed on 5-4-1962, as mentioned above. This is the order which is now being questioned before us. The Petitioner had taken the matter in appeal before the Assistant Commissioner of Taxes who rejected the same and he met with the same fate before the Board of Revenue. He made an application to the Board of Revenue for reference of the case on the question of law propounded by him to that Court, and the Board rejected such an application. Faced with that position, he came before this Court for reference u/s 32(4) of the Act and this Court framed the following question after hearing the parties:

Whether there is any material on the record for the Superintendent of Taxes to determine the gross turnover of the dealer for the period ending 20th September, 1961 by adding amounts of alleged suppressed sales?

Mr. Bhattacharjee, who appears on be half of the Assessee, submits that this order being an order u/s 17(3) of the Act, the Superintendent of Taxes was precluded from invoking the provisions of Section 17(4) in making the assessment as a best judgment assessment under that provision. He further submits that in any view of the matter, there was no material on record except surmises and conjectures on which this order was passed and as such a question of law emerged and he submits that it should be answered in his favour.

The learned Advocate General, who appears for the department contends that although the opening of the order indicates that it was one u/s 17(3) of the Act, reading the order as a whole it is clear and apparent that it was an order u/s 17(4), and indeed he points out that the expression ''best judgment'' appears at the concluding portion of the order.

Mr. Bhattacharjee contends that in view of the fact that the Board stated the case as being one u/s 17(3), the department, or at any rate the learned Advocate General, is precluded from urging that this was an order u/s 17(4). We are unable to agree with Mr. Bhattacharjee that it is not open to us to interpret the order and come to our own conclusion on law whether this order comes within the purview of Section 17(3) or Section 17(4) of the Act. We are satisfied that this is an order which comes u/s 17(4) although the proceedings opened u/s 17(3) after compliance with the various Sub-sections; but after having failed to come to a conclusion in the way it could be clone u/s 17(3), there was no bar in law for the officer to invoke the aid of Section 17(4) and dispose of the assessment in the way he did. This conclusion flows from the scheme of the Section 17.

Coming back to the point, which is urged in favour of the Assessee that this assessment is based on surmises and conjectures it may be useful to refer to the decisions which have been placed before us by Mr. Bhattacharjee. The first case which he draws our attention to is 1954 26 ITR 775 : (AIR 1955 SC 65), Dhakeswari Cotton Mills, Ltd. v. Commissioner of Income Tax, West Bengal, which is a case centering round an assessment u/s 23(3) of the Indian Income Tax Act (old). Mr. Bhattacharjee relies on the following passage at page 782 (of ITR) : (at p. 69 of AIR):

...in making the assessment under Sub-section (3) of Section 23 of the Act, 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. There must be something more than bare suspicion to support the assessment u/s 23(3).

The rule of law on this subject has been also stated by the Lahore High Court in the case of Seth Gurmukh Singh v. Commissioner of Income Tax, Lahore AIR 1944 Lah 353 (2) (FB), which latter case also Mr. Bhattacharjee drew our attention. No exception can be taken the proposition which is established in this case. But the precise point is, the question which is referred to us clearly indicates whether in this particular case there has been some material or some circumstances which the Superintendent of Taxes had before him on which he could rely to pass the order he did in this case. The only way this question has been referred to us is on the basis that if there is no evidence or no material whatsoever to support the finding of the Superintendent of Taxes, it would be certainly a question of law, and if we find in favour of the Petitioner in that respect, we would be obliged to answer the question in the negative. If, however, we find that there is material or at any rate there are certain circumstances from which the Superintendent of Taxes could come to the conclusion that there was suppression of accounts and as such he was left with the power to invoke Section 17(4) and rely on his best judgment to conclude the assessment, there can be no difficulty in answering the question in the Affirmative. The decision which is cited above does not really come to the aid of the Petitioner inasmuch as it is a pure question which is to be decided from the facts and circumstances disclosed in the case, whether there was or was not any material, the sufficiency or otherwise of which is not within the scope of this reference before us, and we are not concerned to deal with that aspect of the matter. The next case which Mr. Bhattacharjee has drawn our attention to is YAGGINA VEERARAGHAVULU AND MAVULETI SOMARAJU and CO. Vs. COMMISSIONER OF Income Tax, A. P., Yaggina Veeraraghavulu and Mavuleti Somaraju and Co. v. Commissioner of Income Tax (AP), which was also a case under Sections 23(3) and 23(2) of the Income Tax Act. This case does not assist the contention which he is making before us on this point. The other cases which Mr. Bhattacharjee has drawn our attention to are Raghubar Mandal Harihar Mandal Vs. The State of Bihar, Omar Salay Mohamed Sait Vs. Commissioner of Income Tax, Madras, Omar Salay Mohammed Sait v. Commissioner of Income Tax, Madras. In the first case, the following passage occurs:

In making an assessment u/s 10(2)(b) the Sales 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 he is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment.

The second case also deals with suspicion or conjecture as being the basis of an assessment which the Courts have held cannot supply the material which is necessary for finding against he Assessee. The last case which Mr. Bhattaharjee has cited is, as I have already indiated, the Lahore Full Bench Case reported in (1944) 12 ITR 393 which as been noticed in the case of Dhakeswari Cotton Mills, Ltd. 1954 26 ITR 775 : (AIR 1955 SC 65), mentioned above, and it is not really necessary to refer to it again.

The learned Advocate General while contending that the order is u/s 17(4) of the Act has drawn our attention to a decision of their Lordships of the Privy Council Commr. of Income Tax. U. P. and C. P. v Badridas Ramrai shop Akola Commissioner of Income Tax, United and Central Provinces v. Badri Das Ramrai Shop, Akola, This is a case u/s 23(4) of the Indian Income Tax Act (old). The following passage may be quoted:

Under Section 23(4) of the Income Tax Act the officer is to make an assessment to the best of his judgment against a person who is in default as regards supplying information. He must not act dishonestly, or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must be able to take into consideration local knowledge and repute in regard to the Assessee''s circumstances, and his own knowledge of previous returns by, and assessments of, the Assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guess-work in the matter, it must be honest guess-work. In that sense too the assessment must be, to some extent, arbitrary. The section places the officer in the position of a person whose decision as to amount is final and subject to no appeal, but whose decision, if it can be shown to have been arrived at without an honest exercise of judgment, may be revised or reviewed by the Commissioner under the powers conferred upon that official by Section 33.

The law is fairly established that in a taxing statute when the officer has got materials before him on which he could rely, he is entitled to draw inference from those materials and unless it can be shown that there is absolutely absence of evidence or any material on record to justify the assessment, it, is not possible to hold on the mere assertion that the circumstances are not adequate to come to that finding, that the assessment is bad in law. In this context it may be necessary to refer to the order of the Superintendent of Taxes at page 3 of the paper-book:

Over and above it is a fact that this dealer has extensive credit sale. Most of the prominent people of the town have credit account with this dealer. Over and above he has such credit sales on wholesale account to many dealers in the district. All such sales have not been shown in the accounts produced before me. This dealer has thus made huge suppression of sales in the line already indicated.

Hence for the reasons, I am unable to accept the accounts produced before me as correct and complete. On the other hand I hold that these accounts produced before me show only suppressed sales in the manner already stated. Hence on the basis of the stock in trade, sales found by the Inspectors, in the concealed credit account from casual verification before attempting the seizure, and also from local formation I to the best of my judgment determine the G.T.O. during this period at Rs. 15,000 for ready-made garments.

As mentioned above, the matter was taken in appeal in two Courts without success. When the question has come in the form as indicated above the only scope before us is to find out whether there is or there is no material on the record for the Superintendent of Taxes to determine the gross turnover as made in this case. After hearing the arguments of both sides we are not satisfied that there is no material on the record for the Superintendent of Taxes to determine the gross turnover on the reasons given by him. As a matter of fact, the conclusion which he has arrived at in making the assessment is in line with the rules which are laid down by the Courts and the same could be invoked while dealing with the case u/s 17(4) of the Act. As we have already indicated this is an order u/s 17(4) of the Act and the Superintendent of Taxes has not done anything against the provisions of the Jaw. In this view of the matter, we answer the question in the affirmative and in favour of the department.

The reference is answered accordingly, but we make no order as to costs.