1. The present application registered as RN-209 of 1999 is taken up together for hearing with another application numbered as RN-210 of 1999. These are applications under Section 8 of the West Bengal Taxation Tribunal Act, 1987 in the nature of applications under Article 226 of the Constitution of India.
2. In RN-209 the applicant is challenging the notice dated May 18, 1999, in respect of the period of four quarters ending March 31, 1992 asking the applicant to show cause why the deemed assessment that was made in terms of Section 11E(1) of the Bengal Finance (Sales Tax) Act, 1941 (in short, "the 1941 Act") should not be reopened in terms of Section 11-E(2). The notice reads as follows : "Whereas I am satisfied that the returns filed by you which formed the basis of the abovementioned deemed assessment case exhibit incorrect statement of your turnover/incorrect particulars of sales as noted below and whereas it appears to me that the assessment is required to be reopened, you are hereby directed to show cause on June 29, 1999 at 11.30 A.M. why the assessment will not be reopened.
Gist of the order proposed to be passed particulars : Evading of sales tax to the tune of Rs. 10,46,025.60." 3. The contention of the applicant is that the notice does not meet the requirements of the principles of natural justice because the incorrect statement of turnover or incorrect particulars of sales alleged to have been furnished by the applicant have not been disclosed therein.
4. In RN-210, the applicant is the same person. He is challenging the validity of a similar notice dated May 18, 1999 in respect of the period of four quarters ending March 31, 1991. The language of the notice is identical with the language of the notice in RN-209 except the figures. There is an additional grievance in RN-210. It is that allegedly there was an order of assessment under Section 11(1) of 1941 Act in course of which documents were examined, but in spite of that, the impugned notice under Section 11-E(2) has been issued. It is contended that in view of the order of assessment made under Section 11(1) the authorities could not resort to Section 11-E(2).
5. Heard arguments at length of Mr. Sumit Kr. Chakraborty, learned Advocate for the applicant, in both the cases and Mr. D. Gangopadhyay, learned State Representative, appearing for respondents, in both the cases.
6. Before we proceed to examine the validity of the notices issued in both the cases in terms of Section 11-E(2), it is necessary to dispose of the additional point taken in RN-210 to the effect that allegedly an assessment was made in that case under Section 11(1). Mr. Gangopadhyay appearing for respondents has submitted that there was no assessment at all under Section 11(1). Mr. Sumit Kr. Chakraborty, learned advocate for the applicant, has submitted on being asked by us that no notice in form VI under Section 11(1) can be produced to show that a notice for assessment under Section 11(1) was served on the applicant. In paragraph 5 of the application, in RN-210, it has been stated that in response to a notice the applicant appeared before respondent No. 2, the Assistant Commissioner of Commercial Tax, Fairlie Place Charge, and produced "the books of accounts in support of returns". It was not stated in the application that declaration forms were produced before respondent No. 2 or those forms were endorsed by respondent No, 2.
Thirteen declaration forms are produced before us but we do not find any signature or endorsement by respondent No. 2 on those forms. Mr.
Chakraborty appearing for the applicant submits that endorsements are not done in writing, but he points at some tearing at the middle of the top of the forms and submits that the usual practice is to tear off at the middle of the top indicating that the forms were examined. Mr.
Gangopadhyay, learned State Representative, however, denies and opposes the contention of Mr. Chakraborty, regarding the mode of examination and endorsement of declaration forms. In this connection, we have to refer to paragraph 6 of the application in RN-210 wherein it is stated that after the alleged assessment under Section 11(1) was completed, the due amount of tax was paid by the applicant without filing appeal.
In this connection Mr. Surnit Kr. Chakraborty, learned Advocate, for the applicant, submits to us that no copy of order of assessment or notice of demand in form VII was served on the applicant. In such circumstances, we are unable to hold that there was an assessment under Section 11(1) of the 1941 Act in respect of the period of four quarters ending March 31, 1991.
7. Now we have to come to the question of validity of the notices issued under Section 11-E(2) in RN-209 and RN-210 for reopening the deemed assessments for the periods of four quarters each ending March 31, 1992 and March 31, 1991 respectively. Mr. Chakraborty appearing for the applicant submits that the allegation on the basis of which respondent No. 1 wants to reopen the deemed assessments is that incorrect statement of turnover or incorrect particulars of sales were furnished in the returns filed by the applicant, but such incorrect statements or incorrect particulars of sales have not been indicated in the notices. Therefore, according to Mr. Chakraborty, in the absence of such statements or particulars the applicant is not in a position to show cause. Hence his submission is that the notices are violative of the principles of natural justice and should be quashed. He relies on a decision of the division Bench of High Court at Calcutta in the case of Electro House v. Commissioner of Income-tax reported in [1968] 70 ITR 421, and a judgment reported in [1995] 28 STA 15 (WBTT) (Sanwarmal Agarwal v. Inspector of Commercial Taxes) and an unreported judgment dated March 8, 1995 in RN-61 of 1995. Mr. D. Gangopadhyay, learned State Representative appearing for respondents, opposes the contention of Mr. Chakraborty. He submits that at the preliminary stage of issuing a notice asking to show cause under Section 11-E(2), the satisfaction required to be arrived at is a prima facie satisfaction, and the particulars stated in the impugned notices are sufficient for the purpose at that stage, and no further particulars were required to be supplied. He has of course further submitted that had the applicant wanted to obtain further particulars for facilitating showing cause, he could approach respondent No. 1 who might provide him the necessary particulars for the purpose of showing cause and there was no necessity of agitating the matter before us. He relies on a decision of the Supreme Court in the case of Sales Tax Officer v. Uttareswari Rice Mill [1972] 30 STC 567 (SC) and a judgment of this Tribunal in Shree Chemicals (India) v. Deputy Commissioner of Commercial Taxes reported in (1998) 31 STA 47 (WBTT). In the second case relied by him he draws our attention to the observation that sometimes mere use of a particular expression from the statutory provision may be meaningless and the test is whether the mandate and spirit of Section 11-E(2) have been carried out. In the first case relied on by Mr. Gangopadhyay, he has reierred to the finding that in terms of Section 12(8) of the Orissa Sales Tax Act, 1947 there was no express or implied postulate for recording of reasons for initiating reassessment proceeding. It was held in that case that a notice under Section 12(8) was not invalid because the reasons which led to the issue of the notice were not mentioned therein.
8. There is no dispute that the impugned notices in the two cases were issued in terms of Section 11-E(2)(b) of the 1941 Act. The provision, excluding the portions not relevant to these cases, reads thus : "Where the Commissioner is satisfied on information or otherwise that a registered dealer has furnished incorrect statement of his turnover or incorrect statement of his sales in the return submitted under Section 10 or otherwise relating to an assessment made under Sub-section (1) which has resulted in reduction of the amount of tax payable by him.....................".
9. In the impugned notices respondent No. 1 has stated that he was satisfied, that means, he was prima facie satisfied that the applicant had furnished incorrect statement of turnover or incorrect particulars of sales in the returns filed by him, and that resulted in evasion of tax amounting to Rs. 10,46,025.60 in RN-209 and Rs. 5,12,700.52 in RN-210. Thus respondent No. 1 used the word "evading" instead of the word, "reduction" used in Section 11-E(2).
10. After hearing arguments of both sides and after considering the decisions relied on by the parties we pass the following order : The word, "evading" is certainly different from the word, "reduction" ; but that does not by itself invalidate or vitiate the notices. As has been said, a particular word or expression used in a statute does not necessarily or always carry a special weight or a special significance although in some cases a particular term or expression can of course convey a particular significance. In the present cases, by using a wrong word, "evading", respondent No. 1 does not appear to have contravened the provision of Section 11-E(2), although it would be more proper for him to use the word "reduction". At best, the applicant can agitate on the question that no other indication has been given in the notices on the basis of which he can understand what incorrect statement of turnover or incorrect particulars of sales were furnished by him in his returns so that he can show cause in terms of the notices. But, in our view, the amount of tax prima facie found by respondent No. 1 to have not been paid in terms of the returns filed by the applicant can give an estimate or indication of the incorrectness of the statement of turnover or incorrectness of the particulars of sales in the returns. Therefore, we do not consider the present notices are invalid.
11. Be that as it may for the ends of justice we direct respondent No.1 to furnish to the applicant such other particulars in gist which the applicant may want to know upon appearance before him in connection with both the present cases. For that purpose the applicant may appear before respondent No. 1 on July 13, 1999 at 11 A.M. in the office of respondent No. 1 and submit application seeking further information he wants for enabling him to show cause. If he does so, respondent No. 1 is directed to furnish such information in gist as he will think proper for submission of show cause by the applicant and he will give at least two weeks' time to the applicant for submission of his show cause from the date of furnishing such further information. Thereafter the proceedings will continue according to law.
12. At this stage Mr. D. Gangopadhyay, learned State Representative appearing for the respondents, informs us that orders for reopening the deemed assessments have been passed on June 29, 1999 in terms of the impugned notices in view of the fact that the applicant did not appear before respondent No. 1 in response to the impugned notices. He also submits that, according to the statute, the deemed assessments are to be reopened in appropriate cases by June 30, 1999. After hearing Mr.
Gangopadhyay we quash the orders passed on June 29, 1999 under Section 11-E(2) reopening the deemed assessments for the impugned periods. We direct respondent No. 1 to dispose of the proceedings under Section 11-E(2) afresh according to law within a period of five weeks from today.
13. However, if the applicant does not appear before respondent No. 1 on July 13, 1999 and does not make an application for further information as already said, the orders passed by respondent No. 1 under Section 11-E(2) on June 29, 1999 will remain intact and will remain in force.
14. Thus the main applications in RN-209 and RN-210 of 1999 are finally disposed of without any order for costs.