Sikri, J.— The State of Madras (the State of Andhra Pradesh was substituted by order dated April 9,1954) filed a suit against six defendants (1) Messrs Hussain Bhoy Sons and Co. Bombay; (2) Yacoob Hussain Bhoy by power of Attorney Agent Atlaf H. Laljee; (3) Haroon H.A Laljee; (4) Abbas Bhoy Hussain Bhoy (5) Unisha Bhoy Hussain Bhoy, known as Annes H. Laljee; and (6) Fazal Hussain Bhoy known as Fazal H. Laljee for the recovery of Rs 72,273 alleging, in brief, that this sum was due from the said defendants on the basis of an assessment order, dated March 31,1946, marked Ex. A-3 made by the Deputy Commercial Tax Officer, Guntur, under the Madras General Sales Tax Act, 1939, in respect of the year 1944-45. Various pleas were taken in the written statement but as we propose to dispose of the appeal on one point, which will be presently stated, we mention only one plea. It was stated in the written statement that the orders of assessment and demand were illegal, ultra vires, arbitrary and void ab initio. Various reasons were given why it was alleged that the order of assessment was bad. Two issues were framed to cover this plea.
“Issue 4: Whether the assessment of the sale tax in question is void and ultra vires?
Issue 5: Whether the assessment of Sales Tax was properly and validly made on the 1st defendant firm?”
2. The Additional Subordinate Judge, Guntur, decreed the suit. On appeal by the defendants, the High Court reversed the decree on the ground that the assessment was bad in law as a notice under Rule 17(5)of the Madras General Sales Tax Rules, 1939, was a condition precedent to the making of an assessment, and the notice relied on by the State, Ex. A-l, dated March 19, 1946, was addressed to Hussain Bhai Lalji, father of defendants two to five, and not to defendants two to five or Defendant l, the firm, constituted by the defendants two to five. The said Hussain Bhai Lalji was not even a partner in the said firm.
3. The High Court granted a certificate under Article 133, and now the appeal is before us. The learned counsel for the appellant addressed us on the point decided against the appellant by the High Court. In reply, the learned counsel for the respondents raised the point that the whole basis of the suit was the assessment order dated March 31, 1946, but this was not an assessment order made against any of the defendants. He said that before a suit can be filed for the recovery of a tax levied or determined by an assessment order, that order must be passed against the persons sought to be made liable. The learned counsel for the appellant objected that this point had been raised for the first time and should not be allowed to be raised at this stage. Before discussing the merits of the point, we may say that in the exceptional circumstances of this case the objection of the learned counsel for the appellant should not be sustained. In the written statement the general plea had been taken that the assessment order, A-3, was void etc., and the point had been taken in para 14 of the written statement that the order of assessment and demand was illegal, etc. It must, however, be admitted that the point now raised was not taken expressly. The judgment of the learned Sub-Judge does not deal with it. But the point was taken in the Ground of Appeal, No. 4, which reads thus:
“That the statutory form the notice (Ex. A-l) was, as a matter of fact, issued upon third party (Hussain Bhai Lalji) who was unconnected with the suit dealings and not upon the defendants. Consistently enough he was assessed by the assessing authorities in respect of the suit transaction and not the defendants.”
4. The High Court does notice this point when it observes that the order of assessment itself proceeded on the assumption that Hussain Bhai Lalji was the dealer. In the statement of the case of the respondents in Contention (xi), it is stated “that the assessment was illegal and void ab initio because neither was the notice issued or served upon the respondents nor was the order of assessment made in regard to the respondent firm and the irregularities vitiated the assessment”. The appellant had thus notice of the contention.
5. Let us now see whether there is any force in the point that the assessment order, A-3, dated March 31, 1946, was made against any of the defendants. The relevant part of the assessment order reads thus:
“Enquiry shows that during 44-45 Ghee Supply Company supplied ghee during the earlier part of the year and that Huasain Bhai Lalji, Hornby Road, Bombay was approved as ghee supplier to the Military during the latter part of the year. This company did not send either A-l or A form for their turnover in ghee during 44-45 as a matter of grace a notice was however sent to the contractor by Registered Post on 20-3-46 to show cause before 28.3.48 why his turnover should not be estimated and assessed to the best of judgment. The turnover of Ghee Supply Company was fixed at Rs 72,27,300. There is no reason to fix the turnover of this Company at a lesser amount. I therefore fix the turnover of contractor Hussain Bhai Lalji also on Rs 72,27,300 and Sales Tax of Rs 72,273 is ordered to be collected from him for the year.”
6. It will be observed that the assessment order mentions a notice, which is stated to have been sent to the contractor. The notice, Ex. A-l, was in the following terms:
“Notice issued by Special Commercial Tax Officer, Guntur, to 1st defendant, dated 19th March, 1946.
Re. dated 19-3-46 Office of the Special Deputy
Commercial Tax Officer,
Guntur.
NOTICE
From the enquiry it is seen that you as Military Contractors have done extensive business in ghee in this Presidency in 1944-45. According to rules you should have sent (A' form showing your turnover for the year on or before 1-5-45. You have not done so. This is to inform you that unless you produce your accounts etc., for my inspection before 28-3-46, your turnover will be estimated to the best of judgment and assessment levied on it.
(Signed) Illegible,
Special Deputy Commercial Tax Officer
Guntur.
19-3-46
To
Hussain Bhai Lalji, MLA Hornby Road,
Bombay (By R.P) Acknowledgment due.
Despatched by R.P on 20-3-46 with
acknowledgment due.”
It seems to us that the assessee or the dealer assessed was Hussain Bhai Lalji and not any of the defendants. Mr Chetty, however, drew our attention to two sentences viz. ‘the Company did not send either A-l or A form...' and ‘There is no reason to fix the turnover of this company at a lesser amount'. We, however, think that on a fair reading of the assessment order it was the contractor Hussain Bhai Lalji who was assessed. In reply to the notice A-l, the Secretary to Hussain Bhoy Lalji, MLA, wrote as follows:
Navsari Building, Hornby Road,
Fort, Bombay, 3rd April, 1947.
Special Dy, Commercial Tax Officer,
Guntur.
Dear Sir,
Your letter dated 19-3-1946 addressed to Mr Hooseinboy A. Laljee has been received.
I have to inform you that Mr Hooseinbhoy Laljee has not purchased any ghee as a Government Contractor, therefore no tax can be assessed against him. The purchase of ghee referred to by you probably refers to the purchase by the Government of India through their appointed Agents M/s Hooseinbhoy Sons and Co.”
Even then no steps were taken to modify the assessment order, if it was possible.
7. Accordingly, we hold that no assessment order was passed against any of the defendants on the basis of which a suit can be brought, and, therefore, the suit must be dismissed on this point.
8. Mr Chetty, however, urges that the defendants must be held to have waived this objection. In this connection, he relies on the facts that Defendant 1 filed a revision petition against the assessment order, A-3, and it was dismissed by the Commercial Tax Officer on January 1, 1948, on the ground that no appeal had been filed. It is necessary, however, to point out that the main prayer in the revision petition was to obtain stay of the criminal proceedings which had been launched against the defendants in respect of the assessment. Be that as it may, we fail to see how the filing of a revision petition can constitute waiver of the illegality of the assessment order of proceedings to recover sums due on the basis of an assessment order passed not against the defendants but against another party. The subsequent revision petition to the Board of Revenue and its dismissal on July 23, 1949, stands on no better footing.
9. In the result, the appeal fails and is dismissed, but in the circumstances of the case, parties will bear their own costs in this Court.