Case: M/S. Daluram Pannalal Modi Vs. The Assistant Commissioner Ofsales Tax Etc

1. The appellant had been assessed to sales tax for the year 1957-58 under the Madhya Bharat Sales Tax Act 1950. This Act was repealed on April 1, 1659 bythe Madhya Pradesh General Sales Tax Act, 1958. On December 31, 1960, a notice was issued to the appellant by an Assistant Commissioner of Sales Tax under the 1958 Act wherein it was stated, "I am satisfied that your sale during the period from 1-4-1957 to 31-3-1958 has escaped assessment and thereby rendered yourself liable to be reassessed under S. 19(1) of the Act". Pursuant to this notice fresh assessment proceedings were started by the Assistant Commissioner in respect of the sales in the year 1957-58 and on March 31, 1961, he made an order imposing an additional tax on the appellant of Rs. 3l,250/- for that year and a penalty of Rs. 15,000/-. The appellant moved the High Court of Madhya Pradesh for a writ of certiorari to quash the order but was unsuccessful. It has now appealed to this Court against the judgment of the High Court.

Reasoning: We will assume that the sales covered by the order against Gajanand Satyanarayan were the same as those with which the order in hand is concerned. In the re-assessment proceedings however it was found as a fact that Gajanand Satyanarayan was a name only and that no real person bearing that name ever existed. That finding cannot be challenged in the present proceedings and that being so, it seems to us that the assessment order upon Gajanand Satyanarayan was a nullity, obviously, no assessment could be made under the Act on a non-existent person. If that order was a nullity and the learned counsel has not been able to show how it could have been otherwise it could not stand in the way of the re-assessment of the appellant at all. The second challenge to the impugned order must, therefore, also be rejected.8. Learned counsel for the appellant has sought to raise two other points but the was not permitted to do so because these points were not mentioned in the petition for the writ nor raised at any earlier stage. We will however state them here but without expressing any opinion of our own as to their tenability. The first of these points was that under S. 19 (1) of the 1958 Act only those sales could be re-assessed which were chargeable to tax under that Act and the sales brought to tax under the present order were of sugar, a commodity the sale of which was not chargeable under the Act. The other point was that penalty had been imposed by the impugned order under S. 14 of the Act of 1950 but this was illegal since the 1950 Act had been repealed and the right to impose a penalty under the repealed Act had not been saved by the saving section, namely, S. 52.