SUPERINTENDENT OF TAXES, TEZPUR AND ORS. versus M/S. BORMAHAJAN TEA CO. LTD.

Citation: [1978] 2 S.C.R. 573 · Decided: 17-01-1978 · Supreme Court of India · Bench: N.L. UNTWALIA · Disposal: Dismissed

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Judgment (excerpt)

,, 
,J 
573 
SUPERINTENDENT OF TAXES, TEZPUR AND ORS. 
v. 
M/s. BORMAHAJAN TEA CO. LTD. 
January 17, 1978 
[N. L. UNTWALIA AND P. S. KAILASAM, JJ.] 
(;onstitution of India Art. 136-The discretion of the Court at 
the 
final. 
hearing to decide whether the court would interfere taking the totality of tfle 
facts into consideration. 
Assani Taxation (On- Goods Carried by Road or on lnland Waterways) 
A 
B 
Act. 1961. Section 7, 9, 11, 20-The return filed beyond the period prescribed 
C 
lvhether 11011 est.-Retiirn filed without payment of the tax due 
whether non 
est.-Whether Revenue can treat the return as invalid and thereafter contend 
before this Court that the return lvas valid. 
The respondent is an assessee under the Assam Taxation (On Goods Carried 
by Road or on Inland Waterways) Act, 1961. 
The respondent in C. A. 602 ot 
1974 submitted the return under section 7(1) of the Act for the period ending 
September 30, 1960, without paying the tax on the return as required under 
section 20(2) of the Act. 
The respondent in C. A. No. 603 of 1974 submitted 
his return under section 7 ( 1) for the quarter ending 3 lst December, 1960. 
The return \Vas filed beyond the period of 30 days as required by section 7(3 ). 
No tax ,,,.-as paid along with the submission of the return in this case also. 
The assessing authorities treated the returns filed as invalid 
and 
therefore, 
proceeded \vith the best judgment assessment. 
The assessing authorities passed 
assessment orders in both the cases under section 9(4) of the Act. 
No notices 
either u!"!der. section 7 (2) or section 11 of the Act \Vere served on the respon· 
dents. 
Thei ::-espondent filed a Writ Petition in the High Court and challenged the 
assessment orders on the g?ounds : 
1. Since the return was filed without depositing the tax in both cases and 
filed beyond time in one case the returns are not returns \Vithin the meaning ot 
section 7 ( 1) and no assessment proceedings can be made on that. 
2. Since no notice. as contemplated by section 7 (2) and section 11 of the 
Act dire.cting the assessee to show cause why assessrilent proceedings should 
not be initiated within two years from the date of the expiry of the return 
'\. , 
period v.as issued no proceedings could be validly initiated -as it had beco1ne 
;}_, 
time-barred under section 7 (2) of the Act. 
· 
D 
E 
F 
The appellant contended that the demand. by the Taxing Officer under sec· 
tion 9(3) of the Act is in pursuance of the return fUed voluntarily by the assessec 
G 
though without payment of the tax and that it can be taken as a return and 
assessment made under section 9 of the Act. 
The High Court held that under section 7 ( 1) the return must be submitted 
with_in.·.a period pf 30 days after the compl7tion of the return quarter and that 
the return submttted after the statutory· penod must be held to be non est for 
the purpose of initiating assessment proceedings. 
The High Court also held 
that the return submitted without the payment of due on the feturn which is a 
mandatory requirement makes the return non est and, therefore, no further pro· 
H 
ceed~ngs couJd be taken on such a defective return. 
·ln appeal by Special Leave the appellant contended : 
A 
B 
c 
D 
E 
574 
SUPREME COURT REPORTS 
[1978] 2 s.c.R. 
l. The High Court was in error in holding that the return submitted by 
the respondent is non est. 
2. The return is complete and valid when it is submitted in such form 
to such authorities as prescribed by the rule and the fact that there 
was any defect in the return such as non-payment of tax requ1rcd 
under section 20(2) or delay in filing the return within 
the time 
prescribed under section 7 (3) does not make the return non est. 
The respondent contended that this Court should not allow the plea put 
forv.'ard on behalf of the appellant that the return was a valid one as it was 
admitted that the assessment did not ]Jroceed on the return submitted. That 
the appellant treated both the· returns as invalid ones; that the Tax Authorities 
cannot be allowed to change their front and submit that they proceeded on the 
lbasis of the returns furnished by the respondent. 
Dismissing the appeal, the Court 
HELD: I. On a reading of section 7(1) and section 20(2) of the Act it 
cannot be said that the submission of the learned Counsel for the appellant that 
it is not necessary that the tax should be paid before valid return is submitted is 
without substance. This Court in the deci

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