Yusuf and anr. Vs. State of Bihar - Court Judgment

Excerpt:
- [s.k. dass, acting c.j.,; k. subba rao,; n. rajagopala ayyangar,; raghuvar dayal, jj.] the appellant was a registered dealer carrying on business in bidis. for the year 1949-50, i.e., for the period from october 22, 1949 to november 9, 1950 he submitted only one return on october 5, 1950 for one quarter and defaulted in respect of the other quarters. he was served a notice on august 13, 1954 under s. 11(1) and (2) of the c.p. and berar sales tax act, 1947, in respect of the turnover for the said period. there after, he filed the returns, but in the assessment proceedings he contended inter alia, that the proceedings before the sales tax commissioner were barred by time. this contention was rejected and his tax liability was determined. then the appellant moved the high court in writ petition. in the other appeal no. 102/1961, the appellant had not filed any return for the year 1950-51 i.e. for the period from november 10, 1950 to october 31, 1951. he was served a notice on october 15, 1954, under s. 11(4) of the act. the said notice was within 3 years from october 16, 1951 which fell within the 4th quarter of the concerned year. the appellant then, filed his returns under protest and contended that the assessment proceedings were barred by limitation under s. 11(a) of the act. this plea was re- jected and his tax liability was determined. the appellant then, filed another writ petition for a similar relief. both the writ petitions were heard together and the learned single judge relying on a decision in firm sheonarayan matadin v. sales tax officer, raipur, quashed the said assessments. the respondent then, filed letters patent appeals before the division bench and by a common judgment the orders of the learned single judge were set aside. in this court, the appellant contended : (1) the expression "escaped assessment" in s. 11-a of the act would apply also to a case where there was no assessment at all ; (2) even if the first assessment proceedings were pending before the appropriate authority, it could only make the assessment within three years from the date of the commencement of the said proceedings, which would start only after the appropriate authority issued a notice under s. 10(1) or s. 11(2) or s. 11(5) of the act; (3) in the present case no proceedings in respect -of the said assessment were pending and (4) as only a part of the fourth quarter in the second appeal falls within three years, the proceedings in respect of the said entire quarter would be barred under s. 11-a of the act and, in any view only the turnover escaped in respect of the period between november 10, 1950 to october 31, 1951 could be assessed. the respondent mainly contended that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer the proceedings commence from the date fixed in the registration certificate within which the said dealer has a statutory obligation to furnish his return. held : (raghubar dayal, j. dissenting) : the expression "escaped assessment" in s. 11-a of the act includes that of a turnover which has not been assessed at all, because for one reason or other no assessment proceedings were initiated and therefore, no assessment was made in respect thereof. commissioner of income-tax, bombay v. pirojbai' n. contrac- tor, (1937) 5 i.t.r. 338, maharaj' kumar kamal singh v. com- missioner of income-tax, bihar and orissa, [1959] supp. - s.c.r. 10 maharajadhiraj sir kameshwar singh v. state of bihar, [1960] 1 s.c.r. 332, commissioner of income-tax, bombay v. narsee nagsee & co. [1960] 3 s.c.r. 988 and state of madras v. balu chettiar, (1956) 7 s.t.c. 519,relied on. the assessment proceedings under the sales tax must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for, the assessment was not completed and, if completed, it might be that the entire turnover would be caught in the net. in re lachhiram basantlal, (1930) i.l.r. 58 cal. 909 and rajendra nath mukherjee v. income-tax commissioner, (1938) l.r. 61 i.a. 10, referred to. under sub-section (1) of s. 10, the commissioner need not issue a notice to a registered dealer for furnishing the relevant returns, but a statutory obligation is imposed on the said dealer to do so by such dates and to such authority as may be prescribed. in the case of a registered dealer there are four variations in the matter of assessment of his 'turnover : (1) he submits a return by the date prescribed and pays the tax due in terms of the said return; the commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return. (2) the commissioner is not satisfied with the correctness of the return ; he issues a notice to him under s. 11(2), and makes an enquiry as provided under the act, but does not finalize the assessment. (3) the registered dealer does not submit a return; the commissioner issues a notice under s. 10(3) and s. 11(4) of the act. (4) the registered dealer does not submit any return for any period and the commissioner issues notice to him beyond three years. in the case of a registered dealer the proceedings before the commissioner starts factually when a return is made or when a notice is issued to him either under s. 10(3) or under s. 11(2) of the act. the acceptance of the contention that the statutory obligation to file a return initiates the proceedings is to invoke a fiction not sanctioned by the act. bisesar house v. state of bombay (1958) 9 s.t.c. 654 and ramakrishna ramnath v. sales tax officer, nagpur, (1960) 11 s.t.c. 811, distinguished. a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return. in the first case, therefore, the tribunal had no jurisdiction to issue a notice under s. 11-a with respect to the quarters other than that covered by return made by the appellant. in the second case, the commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter, but as it was done without showing separately the assessment of tax payable in respect of each quarter, this court cannot confine the relief to be given to the appellant in these appeals to the period barred under s. 1 1-a of the act. the appeals, therefore must be allowed. per raghubar dayal, j.--the turnover for the years 1949-50 and 1950-51 could not be said to be turnover which escaped assessment, within the meaning of that expression in s. 11-a of the act and therefore, the notices issued by the assistant commissioner of sales tax in 1954 under s. 11(2) cannot be said to be notices issued under s. 11-a beyond the period within which they could have been issued. the proceedings for the assessment commence against the registered dealer from the prescribed date for his submitting the return which he is required to submit by sub- section (1) of s. 10. no notice is necessary to be issued to him for the submitting of the return for the purpose of assessment. the statute, by the provisions of sub-section, (1) of s. 10, gives him the required notice to the effect that he is to submit the necessary returns by the dates prescribed by the rules. the registration certificate issued to him mentions the period of the dealer's year, the prescribed return period and the dates by which the dealer had to furnish the returns. the registered dealer is, in this way, in no worse position than an ordinary dealer who receives a notice for -submitting the returns by a certain date. in the case of the unregistered dealer, the proceedings commence by the issue of a notice under subsection (1) of s. 10. there is no time limit fixed for the sales tax officer to take action against the registered dealer under sub-sections (2) and (4) of s. 11. he does not contravene art. 14, if he takes action against a registered dealer under sub-section (2) or sub- section 4 of s. 11 even after the expiry of three years from the period whose turnover is to be assessed. - 1. nine persons including the two appellants were tried for the murder of ghulam rasool as well as for attempting to murder p. in order to show that his performance was excellent accused nizam made a show of making a present of rs. 2 but he failed to return the balance of re. 1) with an instrument like bhalla and by bano with a gandasa as a result of which he sustained serious injuries. 4. both the trial court as well as the high court have concurrently believed the testimony of p. 9 is available from the dying declaration given by him in the hospital on the 5th of december, 1964. 5. this court ordinarily does not appreciate the evidence unless it is satisfied that exceptional and special circumstances exist for doing so. the court must be satisfied that as a result of serious appreciate of the evidence by the trial court and the high court substantial and grave injustice has been done. the state of aimer 1954crilj1313 that unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, this court does not exercise its over-riding powers under article 136(1) of the constitution. the appellants were well known to the injured. as mentioned earlier both the trial court as well as the high court have accepted his testimony as being substantially true.hegde, j.1. nine persons including the two appellants were tried for the murder of ghulam rasool as well as for attempting to murder p.w. 9, mohd. islam. four out of those nine accused were acquitted by the trial court. the remaining accused were convicted under several provisions of the indian penal code. but in appeal, the high court acquitted all the appellants before it in respect of the incident relating to the murder of ghulam rasool. further it converted the conviction of appellant no. 1 for causing injuries to p.w. 9 from one under section 307 read with section 34, i.p.c. to one under section 326, i.p.c. and for that offence sentenced him to suffer rigorous imprisonment for seven years. the conviction of appellant no. 2 bano alias ibrahim was converted from section 307 i.p.c. read with section 34, i.p.c. to one under section 324, i.p.c. and for that offence he was sentenced to suffer rigorous imprisonment for three years. as against that decision this appeal has been brought by special leave.2. the prosecution case in brief is that there was a qawali competition about a month prior to the occurrence. p.w. 4 imteyaz was one of the competitors. in order to show that his performance was excellent accused nizam made a show of making a present of rs. 3 to him on that occasion. but on the very next day, he demanded back that amount. after some persuasion imteyaz returned rs. 2 but he failed to return the balance of re. 1. this led to a friction between imteyaz and his friends on one side and nizam and his friends on the other. on december 3, 1964, some of the accused persons including the appellants started a quarrel with imteyaz and p.w. 5 babu qasab in connection with the return of the aforementioned re. 1. because of the intervention of p.w. 13, nothing serious happened on that day. but it is said that on the next evening at about 7 p.m. when p.w. 5, babu qasab and p.w. 6 shamsuddin came near the scene of occurrence, the accused persons stopped them and assaulted them. coming to know of that incident from p.w. 1, naso, his father ghulam rasool went to the scene. there he was severely attacked as a result of which he died. thereafter p.w. 9 came to know that there was a marpit going on at the scene and therefore he went to that place to see what the matter was. as soon as he went there, he was attacked by chamo (appellant no. 1) with an instrument like bhalla and by bano with a gandasa as a result of which he sustained serious injuries. immediately p.w. 9 was shifted to the hospital where his dying declaration was recorded on december 5, 1964.3. the high court has disbelieved the witnesses speaking to the attack on ghulam rasool. as mentioned earlier all the accused were acquitted of the charges relating to that incident. the high court has also come to the conclusion that it is not proved that there was any unlawful assembly. even in the matter of attack on p.w. 9, the high court has come to the conclusion that as there is no proof of previous concert on the part of the assailants, no aid can be taken from section 34, i.p.c. consequently it convicted the assailants of p.w. 9 only for the injuries caused by them.4. both the trial court as well as the high court have concurrently believed the testimony of p.w. 9. his testimony is fully corroborated by the medical evidence adduced in the case. he had sustained two serious injuries one on the stomach and the other on the shoulder blade. as a result of the stomach injury his intestines had come out. the evidence of p.w. 10, dr. ambika prasad who examined p.w. 9, corroborates ms testimony. further corroboration for the testimony of p.w. 9 is available from the dying declaration given by him in the hospital on the 5th of december, 1964.5. this court ordinarily does not appreciate the evidence unless it is satisfied that exceptional and special circumstances exist for doing so. the court must be satisfied that as a result of serious appreciate of the evidence by the trial court and the high court substantial and grave injustice has been done. it was held by this court in hem raj v. the state of aimer : 1954crilj1313 that unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, this court does not exercise its over-riding powers under article 136(1) of the constitution. it is further held therein that the circumstance that the appeal has been admitted by special leave does not entitle the appellant to open out the whole case and contest all the findings of fact and raise every point which could be raised in the high court. even at the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for.6. it is fully established that p.w. 9 was injured at about the time and the place mentioned in the charge. the incident had taken place when there was still day light. the appellants were well known to the injured. hence be had no difficulty in identifying them. it is not shown that p.w. 9 had any motive to falsely implicate the appellants. he had mentioned the names of the appellants as his assailants at the earliest possible opportunity. the version given by him as regards the manner of attack on him is corroborated by medical evidence. it is true that the high court has not accepted the evidence of p.ws. 1 and 2 who sought to corroborate the testimony of p.w. 9. that cannot throw any doubt on the testimony of p.w. 9. the probabilities of the case are in favour of the version given by p.w. 9.7. the only thing urged against the evidence of p.w. 9 is that in his dying declaration he had said that a-1 had attacked him with a bhalla, but during his evidence in court he stated that he was attacked by an instrument resembling bhalla. later on it was proved through him that he was attacked by the instrument exh. 1 which is a kafgir. this contradiction is of very minor significance. another contradiction brought out at the time of his cross-examination was that during his evidence he had merely spoken to the attack on him by the appellants, but in his dying declaration in addition to saying that these appellants had attacked him, he had also stated that after he fell down some of the other accused had attacked him with sticks. this statement appears to be an exaggeration. but under the circumstances of the case that embellishment is not sufficient to detract from the value to be attached to his testimony. as mentioned earlier both the trial court as well as the high court have accepted his testimony as being substantially true. we see no reason to differ from that conclusion.8. in the result this appeal fails and the same is dismissed.9. the appellants are on bail. they shall now surrender to the authorities and undergo the remaining portion of the sentence imposed on them.