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Judgment
A. RAGHUVIR, C.J. :
The above batch of writ petitions are filed by a partnership firm run in the name and style of M/s. P. K. Himatsingka & Co. The firm consisted of four partners. One among them is Gauri Sankar Himatsingka. The firm was registered on 5th June, 1969 as a dealer in transport vehicles of scooters and three wheelers under the Assam Finance (ST) Act (II of 1956). The issues raised in the batch of cases relate to reassessment of assessment orders completed relevant to the period ending with 30th September, 1969,31st March and 30th September, 1970, 31st March and 30th September, 1971, 31st March and 30th September, 1972, 31st March and 30th September, 1973 and 31st March and 30th September, 1974. The books of accounts of the firm after the assessment order in 1975 were seized by the Vigilance Cell of the Sales tax Department and were tendered before the 1st class Magistrate at Gauhati in two criminal cases launched against the firm.
On 17th February, 1976 the Superintendent of Taxes served a notice to the firm (which is one of the two impugned notices) to show cause as to why the assessment orders referred to earlier be not revised. The notice recited in the year 1968-69 the turnover escaped affecting vehicles 256 (Nil), 1969-70 - 531 (Nil), 1970-71, 630 (40), 1971-72 374 (158), 1972-73 - 377 (188), 1973-74 -374 (34) and 1974-75 - 408 (80). The figures in the brackets relate to three wheelers and the other figures relate to scooters. On receipt of the notice on 24th April, 1976 the firm sought three months time for compliance as their books of accounts were seized by the Vigilance Cell. Thereupon time was granted and extended till 9th June, 1976. On 8th June the firm represented the Vigilance Cell be directed to produce the accounts books for verification. On 20th September, 1978 and on 17th October, 1978 G. S. Himatsingka, a partner of the firm was ordered to produce the accounts. On 10th January, 1979 the Superintendent of Sales tax served another notice (the second impugned notice) under s. 11 to G. S. Himatsingka in continuation of the earlier notice on 17th February, 1976 to furnish turnover particulars for periods before 31st January, 1979 and to produce accounts on 31st January, 1979. Later the inquiry was postponed to 8th February, 1979. In the second impugned notice the firm was asked to submit turnover particulars pertaining to 30th September, 1970 and 31st March, 1971.
When account books were not produced and returns were not submitted the reassessments were completed on 28th February, 1979. Aggrieved thereby the firm filed appeal before the Asstt. Commr. of Taxes (A), Gauhati, and in that appeal it was urged reassessments for periods ending with 30th September, 1968, 31st March, 1969 and 30th September, 1969, 31st March, 1970 and 30th September, 1970 were barred by limitation. For the period ending 30th September, 1968 to 30th September, 1974 numerous other grounds were advanced like reassessment orders should not have been made without the books of accounts. The notices on 17th February, 1976 and on 10th January, 1979 inter alia were assailed as illegal. While proceedings are pending, registration of the firm was cancelled on 10th January, 1980 in a separate proceeding. The appellate authority in the order on 10th September, 1984 had regard to the fact that in the absence of books the firm could not submit explanation by 31st January, 1979 giving only 20 days time. Thus the firm was "handicapped", therefore, orders under appeal were set aside. The two notices dt. 17th February, 1976 and 10th January, 1979 were, however, held not invalid in law. The reassessment proceedings were thus remanded for de novo inquiry.
The instant batch of writ petitions were filed in this Court on 24th May, 1985. The firm in the batch petitions seeks to quash the remand order and the impugned two notices. The issues relevant to first notice dt. 17th February, 1976 may now be considered.
Secs. 8 and 11 of the Act are referred and the learned counsel for the firm argued that the first impugned notice does not conform to the requirements of the two sections of the Act. We see in sub-cl. (1) of s. 8 a form is to be prescribed and to date the form is not prescribed. Sec. 8 is incorporated by reference in s. 11 of the Act and the latter section recites that if assessment has been wrongly made the authorities may at any time within eight years issue notice to the dealer containing all or any of the requirements which may be included in a notice under sub-s. (2) of s. 8 and may proceed to assess the dealer ......"
Learned counsel for the petitioner relying on the above two sections argued that in all cases of reassessment a notice under s. 8 must be served and if not served the notice turns defective. In the instant case the notice addressed to the firm on 17th February, 1976 does not conform to the requirements of s. 8, therefore, it is argued the notice is non est and illegal. This contention overlooks the words in emphasised portion of s. 11 of the Act. The counsel, however, argued that without a notice to file a return within the meaning of s. 8 read with s. 11 the assessee cannot avoid payment of interest and penalties which otherwise the assessee may be mulcted (sic). Precisely for that reason the impugned first notice is argued to be defective in law. No case however, is cited to support the contention.
Learned counsel relied on the decision in Y. Narayana Chetty and Another Vs. The Income Tax Officer, Nellore and Others, to support the contention. That was a case of reassessment under the IT Act. The Court in that case held that proper notice on an assessee is a condition precedent for reassessment. If there is no proper notice or notice is defective consequential orders of reassessments, it was held, were inoperative. To a like effect is the decision of the Calcutta High Court in Commissioner of Income Tax, Bombay City I Vs. Ramsukh Motilal, Bombay, and of the Bombay High Court in R.K. Das and Co. Vs. Commissioner of Income Tax, West Bengal, . Another decision of the Calcutta High Court Rama Guha and Others Vs. Income Tax Officer, ''C'' Ward and Others, is also to the same effect. In that case it is held proper notice should be addressed to proper person to avoid "confusion". That was a case where a notice to partner was held not a notice to the firm. A Full Bench decision of this Court in MESSRS. TANSUKHRAI BODULAL Vs. Income Tax OFFICER, NOWGONG, AND OTHERS., is also to the same effect where it is held proper notice is a condition precedent for reassessment proceedings. A proper notice cannot be waived. This Court held once defect in the notice is detected the assessment orders cannot be allowed to continue. In another decision in Commissioner of Income Tax Andhra Pradesh Vs. K. Adinarayan Murty, it was held HUF is a unit of assessment and an individual is different from HUF, when notices are to be issued correct status of the person on whom it is served should be shown by the authorities as notice alone invoked jurisdiction of the authorities. The decision in Calcutta Tanneries (1944) Ltd., Calcutta Vs. Commissioner of Income Tax, Calcutta, and COMMISSIONER OF Income Tax, MADRAS Vs. K. M. N. N. SWAMINATHAN CHETTIAR., Kanailal Gatani vs. CIT & EPT (1963) 48 ITR 262 are also to the same effect. On consideration of the contentions, we hold the impugned notice on 17th February, 1976 suffers from no vice whatever.
The next argument raised is with respect to the notice dt. 10th January, 1979. It is argued the notice conforms to the requirements under the Act. But is not addressed to the firm, therefore, the notice is defective. The appellate authority made a reference in the order referred to earlier Gauri Sankar Himatsingka was representing the firm in the reassessment proceedings. The second impugned notice besides recites a continuation of the first impugned notice. In this case the firm however avers that the firm was not aware of the second impugned notice. We are unable to give any credence to such an averment as Gauri Sankar is shown to be representing the firm in the reassessment proceedings. In a case reported in Mahendra Rambhai Patel Vs. Controller of Estate Duty, Gujarat State, the Gujarat High Court held at page 11 "We would not, however, place undue emphasis on the description of the parties to whom the notice is addressed, for, in construing a notice of this kind regard must be had to the notice as a whole and no one part of the notice should be allowed to overweigh the other part. It is quite possible that even though a notice may be addressed to a partner, the body of the notice may show that it is in effect and substance a notice against the firm for reassessment of the income of that firm". That case on all fours applies to the facts relevant to the second impugned notice. The second impugned notice is a continuation notice, therefore, does not suffer any illegality.
Learned counsel for the dealer as well as for the sales tax Department referred only to the facts in Civil Rule 409/85 and represented that the decision in that case governs all other cases. Because of this representation we have not adverted to the facts in other cases.
For the aforesaid reasons, we dismiss the above Civil Rules. No costs.
J. M. SRIVASTAVA, J. :
I agree.