LexSTATE OF GUJARAT & ANR. ETC. ETC. versus PATEL RANJIBHAI DHANBHAI & ORS. ETC.
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788
STATE OF GUJARAT & ANR. ETC. ETC.
v.
PATEL RANJIBHAI DHANBHAI & ORS. ETC. El'C.
May 1, 1979
(Y. V. CHANDRACHUD, C.J.,
R. S. SARKARIA,
N. L. UNTWALIA,
P. S. KAILASAM AND E. S. VENKATARAMIAH, JJ.]
Bombay Soiro Tax Act 1959-Ss. 33(b) a11d 35(1)~Bombay Sale>' Tax
Act, 1953-S. 14(b) validity of-lf offend Art. 14
of the
Co11.rt1tufiun-
Procedure under s. 33(b) if more onerous than the procedure under 1. 35,.
Section 33(6) of the Bombay Sales Tax Act 1959 provides that if the
CP1nmissioner of Sales Tax has reason to believe that a dealer
i.~ liable to pay
tnx bul has failed to apply for registration within the time as rcquit·ed by s. 22,
the Con1mhsioner shall assess to the best of his judgrn~nt the au1ount Of tax
due from the dealer in respect of such period and any period subsequent
thereto.
Section 35(1) provides that if the C'ornmission,:r has reason to believe
that any turnover chargeabl'e to tax has es~aped assessment he may proceed
to assess or re-assess the amount of tax due, as the case nw.y be.
Section 14(6) of the Bombay Sales Tax Act, 1953 provides that if the
Collector is satisfied that any dealer has been liable to pay the tax in respect
of any period he shall assess to th'e best of his judgment the amount of tax
from the dealer.
Section 15 of the 1953 Act provides that if the Collector
is satisfied that any turnover has escaped assess1ncnt he may proceed to assess
or re-assess the an1ount of tax.
In C.A. 287/72 the Sales Tax Officer after
is~uing notice.; under s. 14(6)
of 1953 Act to the erstwhile partners of the asses'iee firlll af(er its dissolution
to show cause why they should not be assessed to tax and \vhy a penalty
should not be imposed on them for not getting themselves registered under the
Act made a best judgment assessment under s. 33(6) of the 1959 Act and
imposed a penalty. In C.A. Nos. 289/72 am! 290/72 the Sales Tax Officer
made a best judgment ass'ess.ment and imposed penalty under s. 36(2) on
account of the assessees' failure to get their
respective
firms
reg~stered as
dealers under the Act.
Relying mainly on the judgment of this Court in Anandji llari Das & Co.
v. S. P. Kasture & Ors. (A.I.R. 1968 S.C. 565) and Ghanshyan1das \. Regional
Assistant Commissioner of Sales Tax, Nagpur (A.I.R. 1964 S.C. 766), the
High Court held that the provisions of ss. 33(6) and 35 of the 1959 Act over-
lap each other and that s. 33(6) offends Art. 14 of the Constitution and as such
is void because all cases of escapement of assessment by a dealer can be dealt
with at the sweet will of the assessing authority under either of these provisions,
that the procedure provided ins, 33(6) was more onerous than the one provided
in s. 35 inasmuch as, unlike the latter section, no perio<l of limitation had
been provided for taking action under s. 33(6), that no guidelines had been
provided and that the choice of one procedure in preference to the other is
left to the arbitrary whim of the' assessing authority.
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GUJARAT V. P. R. DHANBHAI
789
Jn the second batch of cases the assessees were unregistered dealers who
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were assessed under s. 14(6) of the, 1953 Act. Following the decision of a
Division Bench of the Bombay High Court which held that s. 14(6) of the
1933 Act ·was violative of Art. 14 of the Constitution and therefore void, the
Sales tax Tribunal directed the orders passed by the aflsessing authorities be set
a!ld.e.
It w.u contended on behalf of the State Governments that s. 33(6) is a
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special provision confined to an unregistered dealer, who is guilty of committing
a two-fold violation of the: law enacted in that provisio11, that the special
provisi"n excludes the application of the general provision ins. 35(1) and the
case of unregistered dealer who escapes assessment on account of his failure
to get himself registered, that the case of Anandii Hari Das C;:. Co. was distin-
guishable because that was a case of a registered dealer whil~ the cases on
hand were cases of unregistered dealers and that the procedure provided in
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s. 33(6) is not more onerous than the one prescribed und~r s. 35.
AUo\\ing the appeaols,
HELD: I. Section 33(6) of the 1959 Act and s. 14(6) of the 1953 Act
do not violate ArL
14 of the Constitution and are valid.
[801C]
2. Section 33(6) is, in terms, restricted in its application to the case of an
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unregistered dealer whose modus operandi to evExcerpt shown. Read the full judgment & AI analysis in Lexace.