S.N Phukan, C.J:— The petitioner in this writ petition has challenged the order dated February 28, 1997 passed by the Sales Tax Officer, Cuttack-II, East Circle, Cuttack, O.P No. 1, in not complying with certain directions given by the appellate authority by his order dated March 16, 1994 while remanding the matter.
2. The petitioner is a registered dealer under the provisions of the Orissa Sales Tax Act, 1947 and the Central Sales Tax Act, 1956 and he was assessed to tax for the year 1989-90 by O.P No. 1.
3. The petitioner was reassessed for the period in question consequent upon receipt of a report from the Inspector of Sales Tax, Bhubaneswar I Circle, regarding suppression of purchase of betel nut from the petitioner by one M/s. Gopinath Store of Banamalipur in the district of Puri. In the reassessment proceeding, the petitioner disputed the allegations made by the Inspector of Sales Tax as incorrect and illegal and prayed for issuance of notice/summons to the owner of the firm, M/s. Gopinath Store for confrontation by the petitioner, but the assessing authority only issued a notice by registered post and without taking further steps passed the order of assessment. On an appeal being preferred by the petitioner, the Assistant Commissioner of Sales Tax, Cuttack I Range, O.P No. 2, remanded the matter with a direction to the assessing authority to issue summons to the owner of M/s. Gopinath Store and to allow an opportunity to the petitioner for confrontation with the owner of M/s. Gopinath Store to find out the truth about the suppression of the transactions. Thereafter the petitioner appeared before O.P No. 1 in the reassessment proceeding and summons was issued through registered post which was returned back due to refusal and the assessing authority treated such refusal as sufficient service. Thereafter the assessing authority passed the impugned order of assessment dated February 28, 1997. The petitioner being aggrieved by the aforesaid order has filed this writ petition.
4. It is not disputed that the sales tax authorities are clothed with the powers of the civil court. Therefore, section 32 of the Code of Civil Procedure will apply and this section gives immense power to the assessing authority to compel attendance/appearance of the representative of the concerned firm, M/s. Gopinath Store. We are not satisfied that by mere issuance of a notice by registered post, the assessing authority has discharged his obligation. It is the duty of the assessing authority to secure attendance of the representative of the concerned firm. section 32 of the Code of Civil Procedure empowers to issue warrant of arrest, attach and sell the property and impose fine. The provision of section 32 is quoted below:
“32. Penalty for default.—The court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may—
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding five hundred rupees;
(d) order him to furnish security for his appearance and in default commit him to the civil prison.”
5. We may refer to a decision of the Allahabad High Court in Mittal & Company v. Commissioner Of Sales Tax, U.P, Lucknow, U.P, [1988] 69 STC 42, wherein it has been held that though the initial onus to establish that no sale was made by the assessee is on the assessee, no evidence need be adduced for establishing a negative fact, and that when the assessee denies the factum of sale, the onus shifts to the Revenue to disprove the contention of the assessee. Therefore, in the case in hand, the onus is on the Revenue.
6. Seated with thus, we hold that the assessing authority, which is a quasijudicial authority, has failed to exercise the power contained in section 32 of the Code of Civil Procedure. We hope the assessing authority would act in accordance with the Act and the Rules and keep in mind that he has not only to act fearlessly but fairly while dealing with matters concerning interest of the revenue of the State.
7. Therefore, the reassessment order, vide annexure 2 series, is liable to be quashed. We accordingly do so and direct the assessing authority to take all coercive measures to ensure presence of the representative of the concerned firm with books of account before him to enable him to reassess the tax payable by the petitioner for the assessment year 1989-90 keeping in view the law laid down by the Allahabad High Court in Mittal & Company case, [1988] 69 STC 42.
8. In the result, the writ petition is allowed to the extent indicated above. No cost.
P.K Tripathy, J.:— I agree.
9. Writ petition allowed.
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