S. Velu Palandar vs The Deputy Commercial Tax Officer

T. Ramaprasada Rao, J.—The petitioner is a contractor in the Forest Department, Tiruchirapalli. His usual course of business is to purchase

casuarina poles from forest coupe and it is claimed that he sells such poles collected from the coupe as timber without further processing them into

casuarina bits. Timber as such is liable to sales tax only at a single point, according to the provisions of the Tamil Nadu General Sales Tax Act. The

petitioner says that when he purchases the goods in auction the sales tax payable is remitted to the Forest Department and his case, therefore, is

that his further dealings in timber cannot attract tax.

For the year 1961-62, the petitioner purchased such casuarina poles and paid sales tax for the relative sale amount to the Forest Department

and he was of the view that the entire transaction was closed by June, 1961. Nearly six years later, the respondent issued a notice stating that the

petitioner not having been assessed to tax, was called upon to file such returns or else he would suffer a tax on a taxable turnover of Rs. 96,375 for

the year 1961-62, which turnover was so estimated by the Revenue. The petitioner was called upon to submit his objections before 25th March,

1967.

The case of the petitioner is that he sought for an adjournment through his son on 25th March, 1967, and not having particularly heard from the

respondent about his request for an adjournment, he filed his objections on 28th March, 1967 as also a return for the purchase of casuarina poles

made by him through the Forest Department. But it happened that the respondent made an assessment order even on 25th March, 1967 because,

according to the respondent, time was granted till 11.30 A.M. on 25th March, 1967 and no objections having been filed by that time, the

assessment was completed. The petitioner has come up to this Court questioning the validity of the order of assessment dated 25th March, 1967

primarily on the ground that he had no fair opportunity to explain his case and collaterally also on other grounds which revolve on facts.

Learned Government Pleader would state that as the notice itself gave time till a particular hour of the day, the assessing officer had the requisite

authority to complete the assessment in the course of that day but beyond the specified limited hour. In this view of the matter, it is stated that there

has been ad failure of the principles of natural justice.

I am not inclined to go into the merits, as I am fairly satisfied that the petitioner did not have an effective opportunity to state his objections and

sustain his case that the goods in question cannot once over be subjected to tax as, in law, they are liable to sales tax at one single point. The main

contention of the learned Counsel for the petitioner is that the fixation of time-limit during the working hours of a notified date is by itself a method

which militates against the principles of natural justice and fair hearing. If any quasi-judicial Tribunal gives a party before it an opportunity to explain

himself or herself to a particular action proposed by the said authority, then, it would be futile to fix a particular hour of a day as the outer limit for

making such submissions. It would be normally difficult even for such an authority who fixes such an outer limit, to obey it itself for all purposes.

There may be instances where the authority may not be in a position to take up the case on that date due to official pressure or otherwise. If an

opportunity is given to a party to explain itself or submit its objections, such opportunity must be realistic and not notional. If any time such as the

one given in this case, is given, the normal presumption is that the person who is to state his objections can file the same before the expiry of the

working hours of that date. Such outer limit may be fixed for administrative convenience; but, if it comes to the question of appreciation of rights

and obligations of parties, equity and justice interfere and compel Courts to afford a reasonable and effective opportunity to persons aggrieved and

affected to state their objections by the end of the working day in question notwithstanding the fact that an hour, a minute or a second of the day is

noted in that order.

In the instant case, therefore, the normal presumption is that the petitioner would be entitled to file his objections on or before 25th March,

1967, itself and therefore there is a violation of the principles of natural justice, in that the petitioner did not have a real opportunity to state his

case, as the assessment Order was made on that day itself. On this only ground, the rule nisi is made absolute and the writ petition is allowed.

The subject-matter is remitted to the file of the respondent for him to proceed with the enquiry into the notice after taking into consideration the

objections filed already by the petitioner and such other representations as may be made at the hearing excepting the plea of limitation as to the

making of the order of assessment itself, if one has to be passed ultimately.

No costs.