K.B. Panda, J.
1. O. J. C. Nos. 198, 202 and 203 of 1977 are in respect of Orissa sales tax assessments for the financial years 1973-74, 1974-75 and 1975-76, whereas O. J. C. Nos. 195, 196 and 197 of 1977 are in respect of Central sales tax assessments for the same period, which the assessee-petitioner seeks to quash. O. J. C. Nos. 204, 205, 206, 199, 200 and 201 of 1977 are for stay of realisation of the tax demand for the above period under both the Acts.
2. The petitioner is a joint stock public limited company governed by the Companies Act (Act 1 of 1956), having its registered office at Calcutta. It has a paper mill at Choudwar, in Orissa, where it manufactures paper and allied products. Opposite party No. 1 is the State of Orissa, and opposite parties Nos. 2, 3, 4, and 5 are-the officers of Orissa sales tax department. The petitioner is a registered dealer under the Orissa Sales Tax Act and adopts mercantile method of accounting commencing from 1st April and ending on 31st March, as its accounting year. The returns filed by the petitioner for the above periods were not accepted by the department. The assessee was asked to furnish evidence in support of the returns and the petitioner's officers failing to satisfy the assessing officer, he resorted to best judgment assessment in which the taxable turnover was enhanced and hence the petitions for quashing them. Hereinbelow are given the figures of the respective years :
1973-74Disclosed turnover Rs. 41,40 298 24Assessed gross turnover Rs. 81,91,698.24The taxable turnover Rs. 48,64,920 85Additional tax demand Rs. 3,10,400.541974-75Disclosed turnover Rs. 54,18,344.31Assessed gross turnover Rs. 1,05,39,344.31Assessed taxable turnover Rs. 63,75,365.46 Additional tax demand Rs. 3,98,428.891975-76Disclosed turnover Rs. 51,36,120.49Assessed gross turnover Rs. 1,04,47,780.69 Assessed taxable turnover Rs. 58,17,149.79Additional tax demand Rs. 3,87,589.85
The grounds for rejecting the returns are virtually the same and so too the grounds of attack.
The figures relating to the Central sales tax assessments for the years referred to above are :
1973-74Disclosed turnover Rs. 3,54,33,894.03Assessed gross turnover Rs. 3,54,33,894.05Net assessed turnover Rs. 3,35,59,311.02Additional tax demand Rs. 57,953.841974-75Disclosed turnover Rs. 5,76,09,199.04Assessed gross turnover Rs. 6,84,45,399.02Net assessed turnover Rs. 6,58,57,985.11Additional tax demand Rs. 16,92,608.741975-76Disclosed turnover Rs. 5,53,06,088.18Assessed gross turnover Rs. 7,18,69,488.79Net assessed turnover Rs. 6,92,39,550.26Additional tax demand Rs. 21,48,539.89
In the above C. S. T. assessments, 55 C forms, 126 C forms and 25 C forms respectively were rejected and additional tax demand made and hence the prayer for quashing them.
3. As these assessments relate to the same assessee but only for different periods and further they being on identical grounds as well as the challenge to the same, they were heard analogously and this judgment will dispose of all the twelve O. J. Cs.
4. It is alleged in the petition that ever since the petitioner commenced operation of the paper mill at Choudwar in 1960, it did not experience such colossal difference between the returns filed by it from year to year and the assessments made by the sales tax administration of the State. According to the petitioner, the tax demand for the financial year 1973-74 was followed in very quick succession by two other demands within 7 to 8 days with a huge total tax demand of nearly 50 lakhs under both the Acts. It preferred appeals against these assessments before the Assistant Commissioner of Sales Tax on the ground that the impugned assessments were inherently without jurisdiction, without the authority of law and, as such, ab initio null and void ; that the assessment orders were vitiated by violation of principles of natural justice and, as such, invalid. Also it filed petitions before the Commissioner of Sales Tax (opposite party No. 2) for extending the date of payment of the demand until disposal of the said appeals. The stay petition was rejected and the petitioner was served with a notice to show cause why penalty should not be levied for default in payment of the tax demands. As on 7th March, 1977, opposite party No. 5 issued a notice under Section 13-A(1) of the Orissa Sales Tax Act, 1947, on the Indian Bank, Choudwar, Cuttack, and other banks, with whom the petitioner has accounts, seeking to freeze the balance as may be due and payable by such banks to the petitioner and to pay over such balance to the Government treasury, these O. J. Cs. were filed to quash the assessments and the tax demands. Though the assessments and the tax demands have been challenged on various grounds, as mentioned in the petition, they need not be referred to, by and large repetitions as they are. Substantially they are to the effect that:
(i) the proceedings before the assessing authority being a quasi-judicial proceeding, the taxing authority is bound to follow the principles of natural justice and rule of law and violation of the same render the order ab initio void and hence a nullity ;
(ii) tax demands based on such void orders are non est and there is no obligation to file any appeal against such void orders or demands ; and
(iii) there has been an erroneous usurpation of jurisdiction and, as such, a writ of certiorari can lie.
5. In the counter filed on behalf of the opposite parties, the various alleged illegalities in the petition were specifically denied. It was asserted that the petitioner produced its books of account from time to time, participated in the assessment proceedings during which all the materials utilised against the petitioner were put to the representatives of the petitioner for clarification and their statement taken on oath. So, the allegation that sufficient opportunity was not granted to the petitioner and the assessments were concluded hastily is untrue and incorrect. In fact, there was a prolonged assessment proceeding starting from 8th September, 1976, when the notice of assessment was issued till the last hearing on 20th January, 1977. During this period, ample opportunity was afforded to the petitioner for submission of evidence and clarification of different anomalies found in the books of account and on due consideration of the explanation offered by the employees of the assessee, opposite party No. 4 passed the assessment orders rightly under Section 12(4) of the Orissa Sales Tax Act on 31st January, 1977.
The petitioner was required to pay the taxes in accordance with the terms of the demand notices served on it within 30 days from the date of service thereof and to produce proof of payment within 7 days therefrom before the collecting authorities, i.e., opposite party No. 5. As the petitioner failed to comply with the above requirements of law, a notice to show cause against levy of penalty, as envisaged under Sub-section (5) of Section 13 of the Orissa Sales Tax Act, was issued by opposite party No. 5 to the petitioner. It was further asserted that all the actions of the opposite parties were bonafide, lawful and in accordance with the principles of natural justice and the charge that the action of the authorities was hostile, capricious and illegal was strongly denied. It was specifically asserted in the counter that the writ petitions are not maintainable in law as the petitioner has alternative remedy open under the statute. Article 226(3) of the Constitution prohibits any redress of any injury referred to in Article 226(1)(b) or Sub-clause (c) and, hence, dismissal of the petitions was urged.
6. It was contended on behalf of the petitioner that:
(i) the assessing officer has assumed jurisdiction under Sections 15 and 12(4) of the Act, but they do not confer on him any such jurisdiction ;
(ii) as a manufacturer qua seller of paper, the petitioner is only required to keep the accounts of its sales and nothing more. If that is produced and the assessing authority has no information or evidence that any particular sale has been suppressed or omitted, he is bound to accept it, and if any such evidence is there, then an opportunity has to be given to the assessee to explain it and thereafter assessment made ;
(iii) the petitioner-company is not bound to keep accounts of its purchase of bamboos, caustic soda and consumption of electrical energy, etc. The taxing officer is also not competent to ask of the petitioner these accounts and even if the petitioner has done so, it is out of fear and not out of any obligation under law and, therefore, should not be considered to the petitioner's prejudice;
(iv) the petitioner was not given any opportunity to explain the alleged anomaly in the proposed ultimate assessment;
(v) extraneous, incorrect and irrelevant considerations, such as 'the dealer-company is a habitual law-breaker for which they are penalised from time to time ; repeatedly visited with penalty by the River Board for polluting the water of river Mahanadi; forest department imposing penalty for overfelling and illicit felling of bamboos', have moulded the assessment and, as such, they cannot stand; and
(vi) on the above grounds there has been violation of natural justice and the assessment is violative of Article 265 of the Constitution.
7. We would now proceed to examine the tenability of these contentions. (A) Point No. (i).-Section 12 of the Orissa Sales Tax Act speaks of assessment of tax and Section 15 speaks of how a dealer is to maintain accounts. According to the petitioner these assessments cannot be under Section 12(4) and Section 15, which the order envisages and the assessing authority has clutched jurisdiction under these provisions of the Act which do not confer on him any such power; and, therefore, the assessment order is without jurisdiction and a nullity. Under the scheme of the Act, best judgment assessment can be made in two circumstances, namely, (i) if a registered dealer does not file any return or (ii) if the return filed is not acceptable. Here, evidently some of the returns have been filed in time and some beyond time. The taxing officer has not been satisfied with the returns furnished and so issued notice under Section 12(2) of the Act. The notices required under Sub-section (2) or (4) of Section 12 are identical as per Rule 28 and they shall be in form No. VIII. In these notices, the assessing authority as per Rule 28 'shall fix a date for the production of such accounts and documents as he may require and for considering any objections which the dealer may prefer'. Here, the assessing authority has given that chance to the assessee ; has heard the representatives of the assessee ; has taken their statements on oath and on their admitted failure to reconcile the anomalies, assessed the petitioner under Section 12(4) of the Act. Section 12(4) postulates a case where a dealer has not furnished the return within the prescribed date. In these cases, as already said, some of the returns are within the prescribed date and some beyond the date and so they offer a mixed case. Yet the fact remains that he has given notice to the assessee to clarify and support the returns and, after hearing the assessee, he has discarded the returns and has resorted to best judgment assessment. We find nothing wrong in it. This is also an appropriate circumstance where best judgment assessment has to be resorted to. Section 12(3) and Section 12(4) are not invariably mutually exclusive, so that if it will be an assessment under Section 12(4), it cannot be under Section 12(3). In other words, in certain circumstances and to certain extent, i.e., when the returns have been filed beyond the prescribed date and yet the assessing authority takes them into consideration for which there is no express provision under Section 12 of the Act, they overlap. The crucial point is if a situation for 'best judgment assessment' has arisen or not. In the instant case, with the rejection of the returns consequent upon the rejection of the supporting materials, such a situation did emerge. So, there is nothing to quarrel about the assessment made under Section 12(4). Besides, whether it is an assessment under Section 12(3) or 12(4), if the assessing authority has power to do so and there is no inherent lack of jurisdiction, under what section he has made the assessment is immaterial. Rightly it has been said that 'the mistaken mention of a particular section or the label or the nomenclature used is not determinative of the validity of an assessment' (see Ram Chand & Sons v. Commissioner of Income-tax, U.P. [1967] 63 I.T.R. 252). 'In order to substantiate a right to obtain a writ of prohibition from the High Court or from the Supreme Court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision' (see Isha Beevi v. Tax Recovery Officer [1975] 101 I.T.R. 449 (S.C.)). So, we dismiss the contention that the assessing authority in these cases has arbitrarily usurped jurisdiction and power and, therefore, the assessments are invalid.
(B) Points Nos. (ii) and, (Hi).-The contention on behalf of the petitioner-company is that the petitioner-company being a manufacturer qua seller, the approach of the assessing officer has not been proper. According to the petitioner, Section 15, which provides : 'Every registered dealer shall keep a true account of the value of goods bought and sold by him', postulates only that a dealer has to keep accounts of the goods bought and sold. Here, the petitioner-assessee not being a purchaser of paper but manufacturer thereof, it is only required to keep the accounts of its sales to different parties and if there is no suppression in it, the assessing officer has no right to go beyond and ask the petitioner to produce other accounts in support of the returns. Elaborating on this point, it was argued that the company was under no obligation to produce its books of account regarding the purchase of bamboos, caustic soda and consumption of electricity, etc., and under the statute, the taxing officer was not competent to ask the petitioner any other accounts excepting the account of sales. Even if the petitioner has produced any such accounts, it is out of an apprehension arid not of an obligation under any law and, therefore, any anomaly found in those accounts, cannot be construed to the petitioner's prejudice. In this case, admittedly, the petitioner has been asked to produce its accounts regarding purchase of bamboos, softwood, power-consumed and incidental manufacturing account of the dealer over paper produced from year to year. The assessing officer found that the accounts kept by the dealer over these raw materials were unintelligible for they were disproportionate to the production of paper actually made. According to the petitioner, the assessing officer went wrong first in asking for those supporting materials of manufacturer and secondly, in discarding the returns on the basis of those irrelevant account books on manufacture. That the assessee is not bound to keep the accounts regarding purchase of bamboos, softwood, consumption of electricity, etc., we are unable to accept. These are raw materials used by the company in the production of paper. If no accounts of those raw materials are maintained and when demanded not produced, the quantum of paper manufactured cannot be judged.
It would be puerile to say that a manufacturer like the assessee is only to keep the accounts of its sales and nothing beyond that. If that be so, there would be no scope for checking the same and anything produced by the assessee is bound to be accepted unless the assessing officer has some credible information or material that some sale or sales have been suppressed which is extremely difficult to get. So, we are not impressed with this argument.
(C) Point No. (iv).- It was contended that the assessee has not been given an opportunity to give evidence in rebuttal to the finding and, in fact, the petitioner was not at all made known what the assessing officer was going to utilise against it. In this context, reliance was placed on the case of G. K. Padmaraju v. Commissioner of Income-tax, Hyderabad [1959] 37 I.T.R. 365.
What evidence or material is utilised in making the assessment and whether that evidence or material has to be put to the assessee to give evidence in rebuttal is a question of fact likely to vary from case to case. If any assessing officer during the course of the discharge of his duty receives some or any material de hors the accounts produced, on the basis of which he is going to discard the accounts of an assessee, it is in such circumstance only that the assessee should be given an opportunity to establish that the information is incorrect, the material has no basis and the assessing officer has been misinformed or misguided. But that is not the case here. The assessing officer, in this case, has not proceeded on any such information or material. He has examined the supporting books of account produced by the assessee and by a thorough cross-check has come to the positive finding that they are not acceptable. Nothing else than the books of account produced has been utilised and that too when the representatives of the assessee have failed to explain them. So, this point is barren of substance.
(D) Point No. (v).-It was contended that extraneous, incorrect and irrelevant matters, such as, 'the dealer-company is a habitual law-breaker for which they are fined from time to time ; repeatedly visited with penalty by the River Board for polluting the water of river Mahanadi; forest department imposing penalty for overtoiling and illicit felling of bamboos', have moulded the assessment and, as such, they cannot stand. True, the learned assessing officer has referred to these factors but it needs no effort to see that these considerations have not in the least influenced the assessment. The law on the point as laid down by the Supreme Court in Homi Jehangir Gheesta v. Commissioner of Income-tax [1961] 41 I.T.R. 135 (S.C.) runs thus:.the court must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee, has been considered fairly and with due care ; whether the evidence pro and con has been considered in reaching the final conclusion; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice.
The decisions of the Supreme Court in Dhirajlal Girdharilal v. Commissioner of Income-tax [1954] 26 I.T.R. 736 (S.C.) and Omar Salay Mohamed Suit v. Commissioner of Income-tax [1959] 37 I.T.R. 151 (S.C.) do not, however, require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions.
Thus, the sole point for consideration is whether the observations quoted above, viz., that the assessee is a habitual law-breaker, etc., have influenced the assessment. To this question our answer is in the negative as would be clear from the elaborate assessment orders now impugned. In support of our view on this point as well as on other factual aspect of .the matter some relevant extracts from the assessment orders on O. S. T. are quoted hereunder :
In response to the notice under Section 12(2) of the O. S. T. Act, the Accounts Executive of the company, Shri A. K. Mitra, the Mill Accountant, Shri B. C. Sahoo, Sri Samiran Chakraborti and Sri Tarapad Roy, both of them Assistants working in the head office of the company, Sri Y. Subba Rao, General Assistant working in the mill, Sri Khetramohan Baral and Sri Sidheswar Swain, Assistants in raw materials and costing sections, Sri M. M. Misra, Forest Supervisor, and Sri Gangadhar Das, Accounts Assistant, have appeared from time to time and produced books of account as per memo of appearance filed. The books of account have been carefully examined and several defects have been noticed which are discussed below.
* * * *
This was confronted to the representative of the dealer-company on 13th January, 1977, who stated that the reasons of the above discrepancy cannot be explained by him. Similar discrepancies were noticed for 1974-75 and 1975-76 also. The representative of the dealer-company, who appeared on 13th January, 1977, stated that competent officers of the company would explain the above discrepancies on 14th January, 1977. But on 14th January, 1977, no explanation was filed in this regard. On 15th January, 1977, the representative of the mill who appeared and produced the books of account was asked to explain about the above discrepancies. But he said that he was not able to explain anything as he was working in the accounts section. Thus, it will be seen that in spite of sufficient opportunity having been offered to the dealer-company to explain the discrepancy between the total quantity of bamboo despatched to the mill as per the figures furnished by the forest office of the company and the total quantity received in the mill as per the mills account, no explanation has been advanced. Therefore, I am constrained to conclude that the dealer has no explanation to offer in the matter. Therefore, it is concluded that the above bamboos have been utilised for clandestine production of papers.
The learned assessing officer concludes in paragraph 11 by saying :
Including 12,717 M. T. of wood, the total quantity of basic raw materials consumed comes to 52,701. At 2.5 : 1 recovery ratio, the total quantity of paper produced would come to 21,080 M. T. against 18,603 M. T. shown in accounts.'
At the end of the 14th and 15th paragraphs, he concludes thus :
'Thus, it is established that the percentage of moisture deducted from the gross weight of bamboos before they are taken to the bamboo stock register is not faithfully recorded in regular course of business....This is as per the books of account of the dealer-company themselves. But allowing only 20 per cent moisture on bamboo and 30 per cent on wood following the above technical opinion, 45,872 M. T. and 3,170 M. T. of bamboo and wood were put into the manufacturing process during the year under assessment. Applying 2.5 : 1 production ratio, the total quantity of paper that was produced from the above bamboo and wood consumed comes to 19,616 M. T. whereas the dealer-company has shown the total production at 18,603 M. T.
While examining the proportion of power consumed and paper produced from year to year, he detected wide discrepancies and when the representative of the company was confronted with this, he could not offer any reasonable explanation and so the assessing officer observed :
On being asked to prove his statement with reference to the actual production of different variety of paper from time to time, Shri Mitra stated that it was very difficult to do. Therefore, the books of account of the dealer-company are held as unintelligible so far as the proportion of consumption and production of paper is concerned.
In respect of the various chemicals used in the manufacturing process, he came to the further finding that the dealer-company's manufacturing account with reference to use of bleaching material which is one of the important chemicals used in paper-making industries is not reliable.
While discussing the use of sizing materials, he found immense variation and the representative of the company, Shri A.K. Mitra, stated that it was very difficult to explain the same. On this score, the assessing officer concluded thus :
The ratio obtained in 1973-74 is also very much different from the ratio exhibited in the other years. If 1972-73 is taken as base, the total production of paper comes to 19,600 M. T. instead of 18,425 M. T. shown in books of account. Shri A. K. Mitra, the Accounts Executive, in his statement dated 11th January, 1977, was asked to explain the reasons of this difference. He stated that the more is the thickness of paper produced the less will be the quantity of loading materials used and that for producing cheaper variety of paper more of loading materials are consumed. But Shri Mitra could not prove the same with the help of accounts. Rather he expressed his inability to do this. There is no point to keep accounts which do not stand to reason.
Finally, the assessing officer held :
On examination of the above registers it was found that during 1973-74, the dealer-company produced 19,122.600 M. T. of paper as per machine weight, i.e., as per actual weighment made as soon as paper comes out of the machine, whereas, as per the actual weight of the reams after finishing, the total production is shown at 18,567.426 M.T.
Examining the accounts from different angles, i.e., purchase of raw materials, the assessing officer came to the following conclusion :
The discussion so far made makes it abundantly clear that the books of account of the dealer-company are not recorded in a true and intelligible manner, as required under the provisions of Section 15 of the O. S. T. Act. Therefore, the books of account of the dealer are rejected and the assessment is being completed on best judgment.
Thereafter, while making an estimate of the turnover of the company, he has referred to some guidelines for best judgment assessment mentioned in a decision of this Court, i.e., New Orissa Traders v. State of Orissa [1975] 35 S.T.C. 335. But, in following the principles laid down therein, evidently he has overshot the mark and made certain observations which are irrelevant for making an honest assessment of the turnover of the company. The observations that the dealer-company enjoys a semi-monopoly position in the market and the dealer-company has taken vast forest contract of bamboo on royalty from which basic raw material, i.e., bamboo, is extracted and utilised in the mill for production of paper, are very much germane ; but not that the company is a habitual law-breaker or that it has been repeatedly visited with penalty to the tune of several lakhs by the River Board for polluting the water of river Mahanadi or that the forest department are imposing penalty for overtoiling or illicit felling. We may add here that the estimate of production of the company at 20,000 M. T. has already been arrived at by the assessing officer at different stages earlier. So, on a scrutiny of the assessment order as a whole, we are unable to accept the contention that these extraneous and irrelevant matters have in any way influenced the judgment although we agree that it would have been proper if those observations were not there. Accordingly, this point is also decided against the assessee.
(E) Point No. (vi).-It was argued with great elaborateness that the proceeding before the assessing officer is a quasi-judicial proceeding in which the principles of natural justice should be adhered to; violation thereof would render the initial order null and void which cannot be cured subsequently if other remedies are open, that will not bar a petitioner to seek relief under Article 226 of the Constitution and where there has been erroneous usurpation of jurisdiction a writ of certiorari would lie and acquiescence or participation in such a proceeding would not debar an aggrieved party from challenging it in a proper writ. All these are well-settled propositions of law. So we do not feel inclined to refer to the several citations made on this score. The moot point is if the impugned orders suffer from any of those vices.
Keeping the law in view as well as the facts of the instant case, as discussed herebefore, we are unable to agree with the learned counsel for the petitioner that the order passed in this case is a nullity because the assessing officer has usurped jurisdiction, or that he has violated the principles of natural justice or rule of law.
8. Therefore, the assessments made under the 0. S. T. cases are in no way vitiated justifying interference in exercise of our extraordinary jurisdiction under Article 226 of the Constitution. Consequently, O. J. C. Nos. 198, 199, 200, 201, 202 and 203 of 1977 fail and are dismissed.
9. So far as the C. S. T. cases are concerned, the additional feature argued is that as many as 56 C forms for the financial year 1973-74, 120 C forms for 1974-75 and 25 C forms for 1975-76 were whimsically rejected. It was contended on behalf of the petitioner that sufficient time was not given to the petitioner in rectifying the defects in those C forms. In this context, the observation of the assessing officer is thus :
However, several of these C forms were found defective as noted against each in the statement enclosed with this order. Therefore, the same are rejected and on sales amounting to Rs. 26,57,902.81 covered under these defective C forms tax is being charged at 10 per cent. C forms for balance sales shown to registered dealers have not been produced in spite of opportunities given....
While not accepting the contention that no opportunity was given, we take into consideration the practical difficulty of the assessee in obtaining proper C forms or rectifying the defects in them within a short time. We hesitate to believe prima facie that a dealer like the assessee has furnished bogus C forms. Given reasonable opportunity, we believe, it would rectify the defects in them. If none appeared on behalf of the assessee on the due date fixed for it, we think it is not because the forms were spurious but because they were unable to rectify the defects within that time. Accordingly, we would interfere in the C. S. T. cases and direct that the revenue should give another chance to the petitioner to claim deduction under valid C forms. Since in the meanwhile more than two years have passed, the learned assessing officer would do well to give one more chance to the assessee to produce valid C forms and then finalise the assessment according to law. Accordingly, O. J. C. Nos. 195, 196, 197, 204, 205 and 206 of 1977 are allowed, the assessments and demands quashed and cases remanded for reassessment on the lines indicated above.
O. J. Cs. arising out of 0. S. T. assessments are rejected and O. J. Cs. arising out of C. S. T. assessments are allowed as indicated in the order.
Parties to bear their own costs in the circumstances of the cases.
J.K. Mohanty, J.
I agree.