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Part-110-Snapshot to Legal Cases-

Whether a Notice served within limitation period was bad in law because assessee was asked to appear on a public holiday and although the said defect was cured by a subsequent letter (although issued after the limitation period) fixing the date of hearing on another date-Commissioner Of Sales Tax vs Paramount Industrial Stores 1976 384 STC 555 Bom


Relevant Matter



Facts of the Case

On 29th March, 1956, assessee was served a Notice under section 15(1) of Bombay Sales Tax Act, 1956 directing the assessee to attend in person or by a legal practitioner
or by an agent authorised in writing at 11 a.m. on 19th April, 1956, at the place and address mentioned therein. The Sales Tax Officer by his letter dated 18th April, 1956,
served on the assessee and purporting to be in continuation of the said notice requested the assessee to attend his office on 24th April, 1956, at 11 a.m. instead of 19th
April, 1956, as the day on which the assessee were required to attend, 19th April, 1956, happened to be a public holiday. It was contended by the assessee that that the
notice served on 29th March, 1956, " was defective, as 19th April, 1956, was a public holiday.


Decision of Tribunal

The notice was defective because 19th April, 1956, which was the date fixed for hearing in the said notice, was a public holiday and the assessee was wrongly asked to
appear on a holiday. Tribunal held that the defect could not be cured after expiry of a period of five years from the end of assessment period on 31
st March, 1951, and hence
action taken to correct the same by way of the letter dated 18th April, 1956, was clearly beyond limitation


Contention of Revenue

Department contended that the notification issued did not in any manner prevent and prohibit public officers from working or performing their official duties on public
holidays. It was urged by him that there was nothing in law or by way of a binding order which prevented the Sales Tax Officer from directing the assessee to appear before
him on 19th April, 1956, and it was perfectly open to the Sales Tax Officer to proceed with the hearing on that date irrespective of whether the assessee appeared or not, and
all that the assessee could do was to apply, if they so thought fit, for an adjournment of the hearing which the Sales Tax Officer would have normally granted on account of
that day being a holiday.
All that was required was that notice should be issued within the prescribed time and it must contain all or any of the requirements which may be included in a notice under
sub-section (3) of section 14 of the said Act. Although it was agreed that for a notice under section 15 of the said Act to be a valid notice such notice must contain the date
on which the dealer was required to attend and the place at which he was required to attend. But, once some date and some place was specified in the notice, validity of the
notice would not be affected, although date or place might happen to be an impossible one on which it could not have been physically possible to hold a hearing. The said
notice must be regarded as valid as it did not in any manner mislead the assessee, nor were the assessee prejudiced, because they were, in fact, heard before the order of
reassessment was made


Whether Tribunal was
justified in holding that
notice served within
prescribed period was
bad in law because
assessee was asked to
appear on 19th April,
1956, being a holiday.

High Court observed that a notification to declare days set out therein to be public holidays was issued and 19th April, 1956, being on account of Ramnavami was also a
High Court observed that to hold that once the date is stated in the notice, however meaningless it might be, the requirement regarding the stating of the date has been
complied with would, reduce this requirement to a mere idle and meaningless formality. High Court cited an example stating that let us take a case where an assessee is
served with a notice under section 15 of the said Act and the date on which he is required to attend is given in the notice as 1st January, 1880, or let us say, 35th January,
1976, and there was no other indication as to what was the correct date on which he is required to attend. Such a notice would convey no information whatsoever to the
assessee concerned as to the date on which his attendance is required and, thus such notice cannot be treated on a better or higher footing than a notice which does not
contain a date of hearing at all


Even if notice was bad
in law, could the defect
be cured by letter dated
18th April, 1956, issued
by Sales Tax Officer,
fixing date of hearing
on 24th April, 1956.

The High Court observed that thus, even if an invalid notice under section 15 of the Bombay Sales Tax Act, 1956 was complied with by assessee, yet the defect cannot be
said to have been waived and proceedings taken pursuant to such a notice would be invalid.
In view of this, it was thus held that the defect in the notice could not be cured by reason of subsequent letter dated 18th April, 1956 and quite apart from this, and what was
even more important, was that the letter dated 18th April, 1956, was admittedly written and served on the assessee after the period of five years prescribed under section
15 of the said Act in the case of concealed income had already expired, and hence such an attempted correction could have no legal effect.


Cases Relied upon

Commissioner Of Income-Tax vs Ramsukh Motilal AIR 1955 Bom 227-If a notice under section 34 of the Income-tax Act, 1922, gave only six days to the assessee to
make a return under that section, the notice was clearly illegal and such illegality cannot be waived by the assessee and no consent can confer jurisdiction upon a court if
court had no jurisdiction, and if we take the view that the Income-tax Officer can have jurisdiction only provided he complies with the conditions laid down in section 34, then
no consent by the assessee or no waiver on his part can confer jurisdiction upon the Income-tax Officer. Thus, in that case assessee had actually made a return pursuant to
the invalid notice under section 34 and it was yet held that reassessment proceedings pursuant to the said notice were invalid. (This decision was approved by Supreme
Court in Y. Narayana Chetty & Another vs The Income-Tax Officer, Nellore Equivalent citations: 1959 AIR 213).
B.K. Gooyee vs Commissioner Of Income-Tax, AIR 1966 Cal 438-A notice issued under section 34 of the Indian Income-tax Act, 1922, which does not contain the
signature of the Income-tax Officer, who issues it, is invalid and, all proceedings taken in pursuance of such a notice are invalid.
Also Referred- Kulkarni v. Tribhovandas Bhimji Zaveri [1956] 7 S.T.C. 385 (Bom); Nyalchand Malukchand Dagli v. Commissioner of Income-tax [1966] 62 I.T.R. 10 (Guj)