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Judgment
S.N. Phukan, J.—This petition under Article 226 of the Constitution came up before this Court on 24.5.93 as motion and at that stage the learned Govt. Advocate raised the preliminary point that the portion is not maintainable in view of Section 33 of the Nagaland Sales Tax Act, 1967, for short, ''the Act'', the Respondents were allowed time to file counter and accordingly, the matter has come up for final disposal today.
Heard Mr. R.S. Bedi, learned Counsel for the Petitioner as well as Mr. E.Y. Renthungo, learned Jr. Government Advocate.
It is not necessary to state all the facts for disposing the present petition. It may be stated that by order dated 22nd March, 1988 passed by the Asstt. Commissioner of Taxes, Nagaland, Dimapur u/s 32(1) of the Act, made assessment for the years 1982-83, 1983-84, 1984-85, 1985-86 and 1986-87. The tax assessed was Rs. 6,02,787.72 paise. After about 5 years the impugned orders dated 29.4.93 and 13.5.93 were issued by the Assistant Commissioner, who was the Certificate Officer under the Bengal Public Demands Recovery Act, 1913, which is applicable in the State of Nagaland, asking the writ Petitioner to show cause as to why Section 17 of the said Act should not be invoked for attachment of properties or why Section 29 should not be invoked to commit the Petitioner to Civil prison towards recovery of the dues. The said order is available at Annexure-5, and by the other order dated 13th May, 1993 vide Annexure-7, the Certificate Officer wrote to the Petitioner, to produce the challans etc. as a proof of payment and failure to do so, follow up action will be taken. Being aggrieved, the present petition has been filed.
Learned Counsel for the Petitioner is trying to impress this Court that at the relevant time when the assessment order was passed by exercising revisional powers u/s 32(1) of the Act, the Assistant Commissioner was not duty authorised by the Commissioner as required u/s 55 of the Act.
It may be stated that according to the learned Counsel for the Petitioner a review petition was filed before the Assistant Commissioner on 27th March 1988 but till date no order has been passed. The learned Government Advocate has urged that in view of Section 33 of the Act, the present petition is not maintainable. Section 33 is very clear that an appeal would lie against any order passed u/s 31 or under Sub-section (1) of Section 32 of the Act. As stated above, learned Counsel for the Petitioner has submitted that writ Petitioner is not pressing his prayer for setting aside the impugned assessment order dated 22nd March, 1988 vide Annexure-4. Therefore, the contention of the learned Government Advocate is not necessary to be considered.
Section 35 of the Act, inter alia, provides that when any tax or penalty or other dues is (sic) payable inconsequence of any order passed under or in pursuance of the Act, the Commissioner shall serve upon the persons liable to pay such tax or penalty or other dues a notice of demand in the prescribed form specifying the sum so payable.
Sub-section (1) of Section 39 of the Act provides that, if the demand in respect of any dues under the Act is not paid on or before the date specified as aforesaid the dealer shall be deemed to be in default. Sub-section (3) of the said Section 39, inter alia, provides, that where a dealer is in default, the Commissioner may order that the amount due shall be recoverable as a Public demand under the Bengal Public Demands Recovery Act, 1913 and may proceed to realise the amount due as such.
Admittedly in the case, in hand, the provisions of 35 and Sub-section (1) of Section 39 of the Act were not complied with. In para 11 of the counter, it has been stated on behalf of the Respondents that no fresh notice of demand for the revised assessment made was required to be served on the Petitioner inasmuch as the revised assessment order was served on the Petitioner and therefore, it may be deemed the demand under the above two section read with Rule 12 of the Rules framed under the Act were complied with.
It is a settled law that Taxing Statute has to be strictly complied with. I am unable to accept the submission of the learned Government Advocate that on the basis of the above part of the counter-affidavit that as the assessment order was served it will be deemed that provisions of Section 5 and Sub-section (1) of Section 39 has been complied with. In fact, if these sections are not complied with the Commissioner does not get jurisdiction to issue order that the amount shall be recovered as public demand as provided under Sub-section (3) of Section 39 of the Act. I may state here that according to the learned Counsel of the Petitioner, the certificate of public demand has neither annexed to the counter affidavit nor records have been produced.
For the reasons stated above, the order dated 29th April, 1993 issued by the Certificate Officer vide Annexure-5 and the letter dated 13th May, 1993 issued by the Certificate Officer vide annexure-7 are quashed. I further direct the Assistant Commissioner to dispose of the petition filed by the Petitioner on 27.3.1988 after giving opportunity of personal bearing to the Petitioner and this shall be done within a period of 3 months.
Office to communicate the orders accordingly.
Petition is disposed of. No costs.