STATE OF KERALA versus K. T. SHADULI YUSUFF ETC.

STATE OF KERALA

K. T. SHADULI YUSUFF ETC.

March 15, 1977

[P. N. BHAGWATI, R. S. SARKARIA AND S. MURTAZA FAZAL Au, JJ.,]

Kera/a General Safes Tax Act, 1963-S. 17(3)-Scope of-Best judgment .assessn1ent 1nade relying 011 entries in account books of other dealers-Assessee -If e11titlcd to cross-exan1ine the dealers.

Natural iustice-Scope in tax matters-Best Judgment assessnient made relyuig on en/lies in account books of other dealers-Cross-examination of dealers-If par/ of pruiciples of 11atr11al Justice. Section 17(3) of the Kerala General Sales Tax Act 1963 provides that if the return submitted by an assessee appears to be incorrect or incomplete, the assessing authority may assess the dealer to the best of its judgment. The oroviso to the sub-section enacts that before taking action under the sub-~cc­iion, the dealer shall be given reasonable opportuniry of being heard aud, Yihere return has been submitted, to prove the correctness of completeness of ~uch return.

Relying on the evidence furnished by entries in the books of acc9unt of 5ome olher dealers, the Sales Tax Officer disbelieved the assessee's a~(..OUnts and came to the conclusion that the return field by hin:1 was incorrect and in-complete and made best judgment assessment under s. 17(3). fhe asses~ee's request to cross-examine the dealers in regard to the correctne:-.s of their accounts was rejected by the Sales Tax Officer. Jn revision the High Court quashed the order of the Sales Tax Officer.

Dismissing the State's appeal,

(Per Bhagwati and Sarkaria, JJ}

HELD . The assessee was entitled to cross-examine the dealers under thi.: second part of the proviso to s. 17(3). The Sales Tax Officer's refi.,_~al to summon the dealers for cross-examination by the· assessee constituted infraction of ti1e right conferred on the assessee by the second part of the prov1su and that vitiated the order of assessment made against him. [239 F] (I) The rule which requires an opportunity to be heard to be given ro person likely to be affected by decision is not an inflexible rule having fixed connotation. It has variable co:i;iten_t ~epending on the. na.ture of the .inquiry, the framework of the law under which 1t rs held, the const1tutton of the at~thority hoiciing the inquiry, the nature and character of the right affected and tne coH-sequences :flo\ving from the decision. The rule of audi alterem partc1n does not require in every case specified procedure to be followed. In given case, the rule of audi alterem parte1n may import requirement that witnesses, wilo5e statemenls are sought to be relied upon by the authority holding the inquiry, should be permitted to be cross-examined by the party affected while in s0me other cases it mav not. The procedure required to be adopted for giving an opiJortunity to person to be heard must necessarily depend on the facts and circumstances of each case. rz37 B-Dl

(2) (a) It is only on the existence of one of two conditions, namely, that n.J return is submitted by the assessee or the return submitted appears to be incorrect ·or incomplete that the Sales Tax Officer gets the jurisdiction to make be'St judgn1ent assessment. [237 H]

(b) The second. part of the proviso lays down that ~·here return has been . submitted, the assessee should be given reasonable opportunity to pro,•e, the correctness or completeness of such return. ..To prove"' means to establish the correctness or. completeness of the return by any mode permissible under taw. The Oppor_tun1ty to prove would, !herefore, necessarily carry with it the right to CxaDllne w1~esses and that would include equally the right to cross-exarniae w~t­nesses examined by the Sales Tax Officer. [238 G-HJ

Jn the instant case, the assessee could prove the correctness and completnes~ of his return only by showing that the entries in the books of account of the dealers on ·which the Sales ·Tax O_fficer relied, were false, bogus or manipulated and that bis return should not be disbelieved on the basis of· such entries. 'I his could not be done unless an "opportunity to: cross exan1ine the dealers was given. [239 BJ · · , .-.I

.i.-turlimohan Prabhudayal v. State of Orissa~ 2~ S.T.C. 22 and 1.1. Appukutry v. Stt:t_e of Kera/a~ 14 S.T.C. 489 approved,

Fazal Ali, J. (concurring).

Section 17(3) with the proviso'. thereto and r. 15, have given statutory right to tl1e assc,,~e to prove the correctness of his return and the asses~ee \\'~J fntitled to cross..examine the wholesale dealers, relying· on whose accounts the Sales Tax Officer 1nade best judgment assessment. [247 E] (1) Th: ,,_.ell-settled rules in regard to best judgment assessment are (i) The taxing authority must not act dishonestly or vindictively or capriciously. He must make ·what he honestly believes ·to be fair estimate of the proper figures of assessment and for this purpose, he must be able to take into consi-deration all matters which he thinks will assist him in arriving at fair and proper estimate. Though it must necessarily be guess work it must be honest guess Work. [241 EJ · ·

'ii) Although tax proceedings are quasi-judicial and tt..e-Salcs Tax Officer is_ noL bound strictly by rules of evidence, yet he must base his order on materials known to the asse~see and after he has been given chance to rebut the same. [244 E) .

(iii) Admissibilitv of document or material in evidence is quite different from the value \vhiCh the authority ·would attach to such materia1. 1'he tax auttrority can even. base its conclusion on private .opi!1ion or asSessmcttt provided .F the same is fu11y disclosed to the assessee and he ts given an opportunity to rebut the same. [242 E]

lnconie-t.a:t ClJmmissioller v." Badridfis Ra111rai Shop, Al..ofa ! 11)37; 64 I.A. 102 114 115 and Dhakeswari Cotton !.-fills Ltd. v. Com1nissio11er of 111come-tax,' Wesi Bengal, [1955] 1 S.C.R. 941 followed.

1)37; 64 I.A.

Uar;T1ubar 11.fandal Harihar Mandal v. State of Bihar 8 S.T.C. 770 and C~ Vasaniilal & Co. v. C.l.T. Bombay City 45 LT.R. 206 referred to.

Seth Gurmukh Singli v. Com~issioner of Income-tax Punjab, (1944] 12 J.T.R. 393 approved •

.,flJ The \\l"'rds "opportunity of being heard" ills. lil3) ace Of very wide amPli~de. A~i that the court has to see is whether the asses~ee had been gi".en , fair hearing. \Vhether the hearing would extend to ttie r1gnt of demandLng .II cross·examination oL witnesses or not, 'Y?uld depend upo!1 the. nature of the matetials r\!lled uron by the tax autbonuc,,. the manner tn wh1cl\ the a<;Sessee cars rebut those materials and the facts and circumstances of each case. [234 F-G]

(b) The second part of the proviso confers benefit on the assessee for giving him an opportunity not only of being heard but also of proving the correctness or completeness of his return. Secondly, r. 15 clearly shows that where the retu1n of the assessee is incorrect or incomplete he must be called upon to prove the correctness or completeness of the same. It also enjoins on. the Sales Tax Officer that reasonable opportunity of being heard should be given to .the assessee to prove the correctness and completeness of the return. The require-ment of the second part of the proviso to s. 17(3) is reiterated in r. 15. [244 F; 247 DJ

In the instant case, if the assessee desired the dealers whose accounts were used against him to be cross-examined to prove that his return was not incor-rect or incomplete, he could not be denied this opportunity. The dealers might have made the entries to embarrass the assessee or they might have animus or business rivalry with the assessee. The assessee could establish the correctness of his return only if he was allowed to cross examine· the dealers. 1244 Hl

Jayalllilal Thakordas v. State of Gujarat 23 S.T.C. 11 distinguished.

M. Appukutty v. State of Kerala, 14 S.T.C. 489 and Muralimohan Prabhu-dayal v. State of Orissa, 26 S.T.C. 22 approved.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 572-574 and 575 of 1972.

(Appeals by Special Leave from the Judgment and Order dated 13-7-1971 of the Kerala High Court in Tax Revision Cases Nos. 42, 45, 58 and 44 of 1970.)

S. V. Gupte (In CA No. 572/72), K. M, K. Nair and A. C. Pudissery for the appellant in all the appeals.

T. A. RamachRndran, for the respondents in all the appeals.

The Judgment of P. N. Bhagwati and R. S. Sarkaria, JJ. was delivered by Bhagwati, J., S. Murtaza Fazal Ali, J. gave separate opinion.

BHAGWATI, ,J. The facts giving ri'se to these appeals are set out in the judgment about to be delivered by our learned brother S. Murtaza Fazal Ali and we do not think it necessary to reiterate them. So far as Civil Appeals 572-57 4 of 1972 are concerned, it would be sufficient to state briefly lhe following facfs as these are the only facts necessary for appreciating the question of Jaw which arises for deter-mination in these appeals. In the assessments of the assessee to sales tax for three assessment years the returns filed by him on the basis of his books of account appeared to the Sales Tax Officer to be incorrect and incomplete since certain sales appearing in the books of account of one Haji P. K. Usmankutty as having been effected by the assessee in his favour were not accounted for in the books of account maintained by the assessee. The assessee applied to the Sales Tax Officer for affording him an opportunity to cross-examine Haji Usmankutty in regard to the correctness of his accounts, but this opportuntry wa:~ denied to him and the Sales Tax Officer proceeded to make best jud!lffient assessment under section 17, sub-section (3) of the Kerala _General Sales Tax, 1963. The assessee appealed but without success and this was followed by revision application . to

the High Court. The High Court took the view that the assessee was entitled to an opportunity to cross-examine Haji Usmankutty before any finding could be arrived at by the Sales Tax Officer that the returns filed by the assessee were incorrect and incomplete so as l:o warrant the making of ·the best judgment assessment and ·since no such opportunity had been given to the assessee, the High Court quashed the order of the Sales Tax authorities and remanded the case to the Sales Tax Officer for making fresh assessmen\s according to law after giving an opportunity to the assess·~e to cros_s-examine Haji Usmankutty. The facts in Civil Appeal No. 575 of 1972 are almost identical, save that instead of Haji Usmankl1tty, certain wholesale dealers were sought to be cross-examined in that case and the oppor-tunity to cross-examine them was denied by the Sales Tax authorities. Since the High Court quashed the orders of assessments in both cases, the State preferred an appeal by special leave in each case challenging the correctness of the view taken by the High Court. Now, the law is well ·settled that tax authorities entrusted with the power to make assessment of tax discharge quasi-judicial functions and they are bound to observe principles of natural justice in reaching their conclusions. It is true, as pointed out by this Court in Dhakes-D 1\'ari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal(') that taxing officer "is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in court of law", but that does not absolve him from the obligation to comply with the fundamental rules of justice which have come to be known in the jurisprudence of ad-ministrative law as principles of natural justice. It is, however, neces-E sary to remember that the rule's of natural justice are not constant : they are not absolute and rigid rules having uni versa! application. lt was pointed out by this Court in Suresh Koshy George v. The Univer-sity of Kerala & Ors. (2) that. "the rules of natural justice are not embodied rules" and in the same case this Court approved the follow-ing observations from the judgment of Tucker, L. J. in Ru;sel v. Duke of Norfolk and Ors. ([3]) :

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domes-tic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt whh, and so forth. Accordingly. 1 do not derive much assistance from the definitions of natural justice which have been from time io time used, but. whatever standard is adopted, one essential is that the person concerned should have reasonable opportunity of present-ing his case."

One of the rules which constitutes part of the principles of natural justice is the rule of audi alterem partem which requires that (!) [1955] 1 S.C.R. 941. (2) [1969] I S.C.R. 317. (3) [1949] 1 AU. England Reports 108.

no man should be condemned unheard. It is indeed requirement of the duty to act fairly which lies on all quasi judicial authorities and this duty has been extended also to the authorities holding adminis-trative enquiries involving civil consequences or affecting rights of parties because, as poinied out by this Court in A. K. Kraz'pak and Ors. v. Union of India,(') "the aim of the rules of natural justice is .to secure justice or to put it negatively to prevent miscarriage of justice" and justice, in society which has accepted socialism as its article of faith in the Constitution, is dispensed not only by judicial or quasi judicial authorities but also by authorities discharging administrative functions. This rule which requites an opportunity to be heard to be given to person likely to be affected by decision is also, like the g,,;ms of which it is species, not an inflexible rule having fixed connotation. It has variable content depending on the nature of the inquiry, the framework of the law under which it is held, the consti-tution of the authority holding the inquiry, the nature and character of the rights affected and the consequences flowing from the decision. It is, therefore, not possible to say that in every case the rule of audi alterem partem requires [that] particular specified procedure to be followed. It may be that in a· given case the rule of audi alterem partem may import requirement that witnesses whose statements are sought to be relied upon by the authority holding the inquiry should be permitted to be cross-examined by the party affected while in some other case it may not. The procedure required to be adopted for giving an opportunity to person to be heard must necessarily depend on the facts and circumstances of each case.

Now, in the present case, we are not concerned with situation where the rule of audi alterem partem has to be read .into the statutory provision empowering the taxing authorities to assess the tax. Section 17, sub-section ( 3), under which the assessment to sales tax has been made on the assessee provides as follows :

"If no return is submitted by the dealer under sub-section ( 1) within the prescribed period, or if th~ return submitted by him appears to the assessing authority to· be inco;rect or incoll!plete, . the assessing authority shall, after makmg such enqmry as 1t may consider necessary and after taking into account all relevant materials gathered by it, assess the dealer to the best of its judgment :

Provided that before taking action under this sub-section the dealer shall be given reasonable opportunity of being heard and, where return has been submitted, to prove the correctness or completeness of such return.''

It is clear on plain natural construction of the language of this provision that it empowers the Sales Tax Officer to make best Judgment assessment only where one of two conditions is satisfied :

satisfied :

(l) [19701 I S.C.R. 457.

either no return is submitted by the assessee or the return submitted by him appears to the Sales Tax Officer to be incorrect or incom-plete. It is only on the existence of one of these two conditions that the Sales Tax Officer gets the jurisdiction to make best judgment assessment. The fulfilment of one of these two pre-requisites is, therefore, condition precedent to the assumption of jurisdiction by the Sales Tax Officer to make assessment to the best of his judgment. Now, where no return has been submitted by the assessee, one of the two conditions necessary for the applicability of section 17, sub-section ( 3) being satisfied, the Sales Tax Officer can, after making such inquiry as he may con'sider necessary and after taking into account all relevant materials gathered by him, proceed to make the best judgment assessment and in such case, he would be bound under the proviso to give reasonable opportunity of being heard to the assessee. But in the other case, where return has been sub-mitted by the assessee, the Sales Tax Officer would first have to satisfy himself that the return is incorrect or incomplete before he can pro-ceed to make the best judgment assessment. The decision making process in such case would really be in two stages, though the in-quiry may be continuous and uninterrupted : the first stage would be the reaching of satisfaction by the Sale's Tax Officer that the return is incorrect or incomplete and the second stage would be the making of the best judgment assessment. The first part of the proviso which requires that before taking action under sub-section ( 3) of section 1 7, the assessee should be given reasonable opportunity of being heard would obviously apply not only at the second stage but also at the first stage of the inquiry, because the best judgment assessment, which is the action under section 17, sub-section (3), follows upon the inquiry and the "reasonable opportunity of being heard" must extend to the whole of the inquiry, including both stages. The requirement of the first part of the proviso that the assessee should be given "reasonable opportunity of being heard" before making best judgment assessment merely embodies the audi alterem partem rule and what is the content of this opportunity would depend, as pointed out above, to great exte_nt on the facts and circumstances of each case. The question debated before us was whether this opportunity of being heard granted under the first part of the proviso included an oppor-tuuity to cross-examine Haji Usmankutty and other wholesale dealer's on the basis of whose books of accounts the Sales Tax Officer dis-believed the account of the assessee and came to the finding that the return submitted by the as'sessee were incorrect and incomplete. But it is not necessary for the purpose of the present appeals to decide this question since we find that in any event the assessee was entitled to this opportunity under the 'second part of the proviso.

The second part of the proviso lays down that where return has been submitted, the assessee shonld be given reasonable opportunity to prove the correctness or completeness of such return. This require-ment obviously applies at the first stage of the enquiry before the Sales Tax Officer comes to the conclusion that the return submitted by the assessee i·s incorrect or incomplete so as to warrant the making of best judgment assessment. The question is what is the content

of this provision which imposes an obligation on the Sales Tax Officer to give and confers corresponding right on the assessee to be afforded, reasonable opportunity "to prove the correctness or completeness of such return". Now, obviously "to prove" means to establish the ·Correctness or comrleteness of the return by any mode permissible "Under law. The usl.lai mode recognised by Jaw for proving fact is by production of evidence and evidence includes oral evidence of wit-nesses. The· opportunity to prove the correctness or completeness of the return would, therefore, necessarily carry with it the right to examine witnesses and that would include equally the right to cross-examine witnesses examined by the Sales Tax Officer. Here, in the present •Case, the return filed by the assessee appeared to the Sales Tax Officer to be incorrect or incomplete because certain sales appearing in the books of Hazi Usmankutty and other wholesale dealers were not shown in the books of account of the assessee. The Sales Tax Officer relied on the evidence furnished by the entries in the books of account of Hazi Usmankutty and other wholesale dealers for the purpose of coming to the conclusion that the return filed by the assessee was in-correct or incomplete. Placed in these circumstances, the a'ssessee could prove the correctness and completeness of his return only by showing that the entries in the books of account of Hazi Usmankutty and other wholesale dealers were false, bogus or manipulated and that the return submitted by the as·sessee should not be disbelieved on the basis of such entries, and this obviously, the assessee could not do, unless he was given an opportunity of cros's-examining Hazi Usmau-kutty and other wholesale dealers with reference to their accounts. Since the evidentiary material procured from or produced by Hazi Usmankutty and other wholesale dealers was sought to be relied upon for showing that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examina-tion. It can hardly be disputed that cross-examination is one of the most efficacious methods of establishing truth and exposing falsehood. Here, it was not disputed on behalf of the Revenue that the assessee in both cases applied to the Sales Tax Officer for summoning Hazi Usmankutty and other wholesale dealers for cross-examination, but his application was turned down by the Sales Tax Officer. This act of the Sales Tax Officer in refusing to summon Hazi Usmankutty and other wholesale dealers for cross-examination by the assessee clearly constituted infraction of the right conferred on the assessee by the second part of the proviso and that vitiated the orders of assessment made against the assessee.

We do not wish to refer to the decisions of various High Courts on this point since our learned brother has discussed them in his iu.dgment. Y1e are ~f the opinion that the view taken by the Orissa Htgh Court m Muralimohan Prabhudayal v. State of Orissa(I) and the Kerala High Court in M. Appukulty v. State of Kerala(2) and the present cases represents the correct Jaw on the subject. We accord-ingly dismiss the appeals with no order as to costs.

(I) 26 S.T,C, 22.

(2) 14 S.T.C, 489.

FAZAL Au, J.-These appeals by special leave involve an inter-esting question of law as to the interpretation of s. 1 7 ( 3) of the Kerala Genera\ Sales Tax, 1963-hereinafter referred to as 'the Act'-and the proviso thereof read with r. 15 framed under the Act. The assessment years in question are 1965-66, 1966-67 and 1967-68 in the case of the respondent K. T. Shaduli in Civil Appeals Nos. 572-574 of 1972 and 1967-68 in the case of Nallakandy Yusuff in Civil Appeal No. 575 of 1972. But both the cases involve an iden-tical question of law. In this view of the matter, we propose to deal with all these appeals by one common judgment.

The assessee in Civil Appeals Nos. 572-574 of 1972 filed his sales-tax returns before the Sales Tax Officer who on an examination of the accounts found that the returns submitted py the a;sessee were both incorrect and incomplete inasmuch as certain entries in the books of account of Haji P. K. Usmankutty revealed certain transac-tions which were not accounted for in the assessce·s books of account. The Sales Tax Officer, after hearing the ossessee, made an assess-ment to the best of his judgment under s. 17(3) of the Act read with r. 15 made under the Act. The Sales Tax Officer thus rejected the accounts of the assessee as they did not reflect the goods said to have been purchased by Haji P. K. Usmankutty. The assessee sought an opportunity to cross-examine Haji Usmankutty with respect to the correctness of his accounts which were relied upon by the Sales Tax Oflker, but this opportunity was refused to him by the Sa)es Tax Ofticer as also the other appellate authorities. Similarly in the case of the respondent Nallakandy Yusuf!, in Civil Appeal No. 575 of 1972, the return filed by the assessee was rejected by the Sales Tax Officer on the ground that certain transactions shown in the accounts of some wholesale dealers were not reflected in his books of account and the opportunity asked for by the assessee for cross-examining the said wholesale dealers was refused to him. The order of the Sales Tax Officer was co~nfirmed by the Appellate Authorities under the Act. Both the assessees then filed revision application before the Hi~b Court which allowed the application of the asscssees, quashed the orders of the Sales Tax Authorities and remanded ti.e cases to the Sales Tax Officer for giving an opportunity to the respondents for cross-examining the wholesale dealers concerned and then making assessments in accordance with the law. The State having obtained special leave from this Court-hence these appeals before us.

The short question that fell for determination before the High Court was, whether under the provisions of the Act the opportunity of being heard which was to be given to the assessees, would include within its sweep the right of cross-examination of third party whose accounts were the basis of the best judgment assessments made by the Sales Tax Officer and the examination of which later on showed that the returns filed by the assessees were incorrect and incomplete. The High Court, on coi:isideration of s. 17 ( 3) and the Rules made under the Act came to the conclusion that the assessees were entitled to fair hearing and the opportunity of being heard could not be said to be complete unless in the circumstances of these cases the as-

sessees were allowed to cross-examine Haji P. K. Usmankutty and other wholesale dealers on whose accounts reliance was placed by the Sales Tax Authorities.

provision of law authorising the Taxing Authorities to. make. best judgment assessment in default of the ass~ssee .complymg with the le•al requirements is not new one, but existed m s. 23 ( 4) of B. the !;,come-tax Act, 1922 as amended by the Indian Income-tax (Amendment) Act, 1939, the relevant part of which runs thus:

If any person fails to make the return required by any notice given under sub-section (2) of sectin 22 and has not made return or revised return under ;;uh-section (3) ot the same section or fails to comply with aU the terms of notice issued under sub-section ( 4) of the same sec-tion or, having made return, fails to comply with all the terms of notice issued under sub-section (2) of this sec-'.ion, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable bv the asscssee on the basis of ·such Qssessn1ent and, in the case of firm, may refuse to register it or may cancel its registration if it is already registered :

Provided x x

Describing the nature and character of best iudgment assessment, Lord RusseU of Killowen in delivering the judgment of. the Privy Council in Income-tax Commissioner v. Badridas Ramrai Shop, kola,(') observed as follows:

"The Officer is to make an assessment to the best of hiJ; judgment aganst person who is in default as regards sup-plying informatiQn. He must not act dishonestly or vindic-tively or capriciously, because he must exercise judgment in the matter. He must make what he honestly believes to be fair estimate of the proper figure of assess-F ment, and for this purpose h.e must, their Lordships think, b~ able to take into consideration local knowledge of pre-vious returns by and as·sessments of the a&'l;essee, and all other matters which he thinks will assist him in arriving at fair and proper es<imate; and though there must neces-sarily be guess-work in the matter, it must be honest guess-work."

These observations were quoted with approval by this Court Raghbar Mand al Harihar Manda/ v. State of Bihar([2]).

Mr. Gupte learned counsel for the appellant submitted that he main object of the best judgment assessment was to penalise the

the

(1) (1937) 64 IA. 102, 114-115.

(2) 8 S.T.C.7i0.

assessee for either not filing return or for filing return which was defective and if at this stage he is given full-fledged hearing inclnd-ing the right to summon and cro·ss-examine witnesses, then this would amount to condoning the default committed by the assessee. lt'was also argued that as the Income-tax authorities are not bound by the technical rules of evidence, the assessee cannot claim cross-examina-tion of witnesses as matter of right. In support of his submission he relied upon decision of this Court in Dhakeswari Cotton Mills Ltd v. Commissioner of Income Tax, West Bengal('), where agreeing with similar argument put forward by the Solicitor-General in that case this Court observed thus : "As regards the second contention, we are in entire agreement with the learned Solicitor-General when he say·s that the Income-tax Officer is not fettered bv technical rules of evidence and pleadings, and that he is cl1titled to act on material which may not be accepted as evidence ,in Court of law, bl!t there the agreement ends, because it is equally clear that in JTiaking the assessment under sub-section (3) of section 23 of the Act, the Income-tax Officer is not en-titled to make pure gues·s and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23 ( 3)."There can be uo doubt that the principle that as the tax proceedings are of quasi-judicial nature, the Sales Tax authorities are not strictly bound by the rules of evidence which means that what the authorities have to consider is merely the probative value of the materials pro-duced before them. This is quite different from saying that even the rules of natural justice do not apply to such proceedings so as to deny the right of cross-examination to the assessee where the circum-stances clearly justify such course and form one of the integral parts of the materials on the basis of which the order by the Taxing Autho-rities can be passed. The admissibility of document or material in evidence is quite different from the value which the authoriiy would attach to such material. The Privy Council has held that the Taxing Authorities can even base their conclusion on their private opinion or assessment provided the same is fully disclosed to the assessee and he is given an opportunity to rebut the same. In these circumstances, therefore, we do not agree with Mr. Gupte that merely because the technical rules of evidence do not strictly apply, the right of cross-· examination cannot be demanded by the assessee in proper case governed by particular statute.

This Court further fully approved of the four propositions laid down by the Lahore High Court in Seth Gurmukh Singh v. Commis-sioner of Income-tax, Punjab([2]). This Court was of the opinion that the Taxing Authorities bad violated certain fundamental rules of

(I) [1955] l S.C.R. 941.

(2) (1944) 12 I.T.R. 393.

natural justice in that they did not disclose to the assessee the infor-mation supplied to it by the departmental representatives. This case was relied upon by this Court in later decision in Raghubar Mandal Har.ihar Mandal's case (supra) where it reiterated the decision of this Court in Dhakeswari Cotton Mills Ltd."s case (supra), and while further endorsing the decision of the Lahore High Court in Seth Gurmukh Singh's case(2) pointed out the rules laid down by the Lahore High Court for proceeding under sub-s. (3) of s. 23 of the Income-tax Act and observed as follows :

"The rules laid down in that decision were these : ( 1) While proceeding under sub-section (3) of section 43 of the Income-tax Act, the Income-tax Officer is not bound to rely on such evidence produced by the assessee as he con-siders to be false; (2)1 if he proposes to make an estimate in disregard of the evidence, oral or documentary, kd by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate; (3) he is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and ( 4) . in case he proposes to use against the a~sessee the result of any private inquiries niade by him, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and should further give him amp!~ opportunity to meet it, if possible."

It will .thus be noticed that this Court clearly laid down that while the Income-taic Officer was not debarred from relying on any material against the assessee, justice and fair-play demanded that the sources of information relied upon by the Income-tax Officer must be dis-closed to the assessee so that he is in position to rebut the same and an opportunity should be given to the assessee to meet the effect of the aforesaj_d information.

We, however, find that so far as the present appeals are concerned, they are governed by the provisions of the Kerala General Sales Tax Act, the provisions of which are not quite identical with the provisions of the Income-tax Act and the Kerala Act appears to have fully in-corporated all the essential principles of natural justice in s. 17 (3) of the Act. In these circumstances, therefore, the answer to the ques-tion posed in these appeals would have to turn up.on the scope, inter·· pretation and content of s. 17 (3) of the Act, the proviso thereto and r. 15 framed under the Act. It is true that the words "opportunity of being heard" are of very wide amplitude but in the context the sales-tax proceedings which are qua'si-judicial proceedings all that the Court has to see is whether the assessee has been given fair hearing. Whether the hearing would extend to the right of de-manding cross-examination of witnesses or not would naturally depend upon the nature of the materials relied upon by the sales-tax

authorities, the manner in which the asses·sce can rebut those male-rials and the facts and circQmstances of each case. It is difficult to lay down any hard and fast rule of universal application. We would, therefore, first try to interpret the ambit of s. 1 7 (3) and the proviso thereof in order to find out whether right of cross-examination of witnesses whose accounts formed the basis of best judgment assess-ment is conferred on the assessee either expressly or by necessary in-tendmcnt. Section 17 ( 3) of the Act runs thus : "If no return is submitted by the dealer under sub-sec-tion ( 1) within the prescribed period, or if the return sub-mitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such enquiry as it mzy consider necessary and after taking into account all relevant materials gathered by it, assess the dealer to the best of its judgment :

Provided that before taking action under this sub-sec-tion the dealer shall be given reasonable opportunity of being heard and, where return has been submitted, to prove the correctness or completeness of such return."

An analysis of this provsion would 'show that this sub-section con-templates two contingencies-(!) where the assessee does not file his return at all; and (2) where the assessee files his return which, however, is found to be incorrect or incomplete by the assessing authority. The sub-section further enjoins on the assessing authority duty to consider the necessary materials and make an enquiry before coming to its conclusion. The proviso expressly requires the as·sessing authority to give to the assessee reasonable opportunity of being heard even if the assessee had committed default in not filing the return. Since the statute itself contemplates that the assessee should be given reasonable opportunity of being heard, we arc not in position to agree with the contention of the learned counsel for the appellant that if such an opportunity is given, it will amount to condonation of default of the assessee. The tax proceedings are no doubt quasi-judicial proceedings and the Sales-tax authorities arc not bound strictly by the rules of evidence, nevertheless the authorities must base their order on materials which are known to the assessee and after he is given chance to rebut the same. This principle of natural justice which has been reiterated by this Court in the' deci-sions cited above has been clearly incorporated ins. 17(3) of the Act as mentioned above. The statute does not stop here, but the second part of the proviso confers express benefit on the a'ssessee for giving him an opportunity not only of being heard but also of proving the correctness or completeness of such return. In view of this pro;·i-sion it can hardly be argued with any show of force that if the asses-see desires the wholesale dealers whose accounts are used against him ff to be cross-examined in order to prove that his return is not incorrect or incomplete he should not be conceded this opportunity. Apart from anything else, the second part of the proviso itself confers this specific right on the assessee. It is difficult to conceive as to how the

assessees would be able to disprove the correctness of the accoun~s of Haji P. K. Usmankutty or the other wholesale dealers, unless.he. is given chance to cros~-examine them with resp.eel to t~e cred1b1hty ,of the accounts maintamed by them. It ts qmte possible .that t~e wholesale dealers may have mentioned certain transacttons m ~heir books of account either to embarrass the assessees or due to ammus ' or business rivalry or such other reasons which can only be established '. when the persons who are responsible ior keeping the accounts are brought before the authorities and allowed to be cross-examined by the assessees. This does not mean that the assessing anthority is bound to examine the wholesale dealers as witnesses in presence of the assessees : it is sufficient if such wholesale dealers are merely tendered by the safos-tax authorities for cross-examination by the assessees for whatever worth it is. In view of the express provision of the second par\ of the proviso, we are fully satisfied that the res-pondents had the undoubted right to cross-examine the wholesale dealers on the basis of whose accounts the returns of the assessees were held to be incorrect and incomplete. We are fortified in our view by decision of this Court in C. Vasantilal and Co. v. Com-missioner of Income-tax, Bombay City('), where this Court observed as follows :

"The Income-tax Officer is not bound bv anv technical rules of tl!e law of evidence. It is open to him to collect materials to facilitate assessment even by private enquiry. But if he desires to use the material so collected, the assessee mu·st be informed of the material and must be given an ade-quate opportunity of explaining it."

It will be noticed that if the Sales-tax authorities refused the prayer of the assessees to cross-examine the wholesale dealers, then such the material collected by the assessing authority. refusal would not amount to an adequate opportunity of explainino 0

Mr. Gupte learned counsel for the appellant relied on decision of the Gujarat High Court in Jayantilal Thakordas v. State of Guja-rat('). In the first place the Gujarat High Court in that case was concerned wit~ the. Bombay Sales. Tax Act which did not contain any express provtston hke the one which is to be found in the second part of the proviso to s. 17(3) of the Kerala General Sales Tax Act and therefore, any decision given by the Gujarat High Court would hav~ no application to the facts of the present appeals. In Jayantilnl Thakorda_s's case (supra) the Court was merely called upon to inter-pret the import of the words "reasonable opportunity of being heard" and the Judges held that as ample opportunity was given to the assessee concerned to show cause why the sales said to have been suppressed

(3) 14 S.T.C. 489.

by him should not be included in his turnover, the rules of natural justice were duly complied with. The Court further pointed out that the sales-tax authorities were not strictly bound by the rules of evidenctl nor did the Act require the assessing authorities to do more tha11 what they had done in that case. The Gujarat High Court seems. to have dissented from the view taken by single Judge of the Kerala High Court in M. Appukutty v. State of Kerala([3]). Finally, it does not appear from the facts mentioned in the judgment of the Gujarat High Court that the assessee had at any time made specific prayr:r for cross-examining the representatives of the firm of M/s A. Alibhai & Co. In these circumstances, therefore, Jayantilal Thakordas's case (supra) does not appear to be of any assistance to the appellant. We might, however, state that we are not prepared to go to the extent to which the Gujarat High Court has gone even in interpreting the content and ambit of an opportunity given to the assessee of being: heard so as to completely exclude the right of cross-examination. We have already held that whether the reasonable opportunity would ex-tend to such right would depend upon the facts and circumstances. of each case.

We feel that the correct law on the subject has been laid down by Division Bench of the Orissa High Court in Muralimohan Prabhudayal' v. State of Orissa(') where the High Court, while adumbrating thG 4th proposition, namely, as to how the assessee was to rebut the· material used by the Department against him, observed as follows :

the·

"It is the amplitude and ambit of this fourth proposition which needs examination. There cannot be any controversy that the assessee can adduce independent evidence of his own to disprove the particulars proposed to be used against him. . . . . . . . third party's accounts are proposed to be used against the assessee and if such accounts are relied on, the assessee's accounts are to be discarded. . . . . . . . . . If the assessee gets an opportunity by cross-examination, he can establish that the accounts of the third party are wrong and manipulated to suit the interest of the third party, or that they were intended to be adversely used agamst the assessee with whom the third party had inimical relation-· ship. It is difficult to accept the contention in such case that the ample and reasonable opportunity to be given to the assessee would not include within its sweep the right of cross-examination."The High Court in the present appeals has relied on its earlier decision· in Appukutty v. State of Kerala (supra) where sing!e Judge of ~he Kerala High Court pointed out that the fact. that a. th1!d ~arty mam-taining some secret accounts had _made c~rta1!1 ~nt~1e~ m his accounts which may connect the asse~see will. not give 1unsd1ctton to the assess-ing authority to use that mformat1on unless the assessee has been•

given an ?Pportunity to crosscexamine J1im effectively. As no such opportumty was given, the Court held that the proceedings stood vitiated. In our opinion, the decision of the Kerala High Court was substantially correct and in consonance with the language of s. 17 (3) and the proviso thereto.

As no such

Other cases have also been cited before us which, however are based on the peculiar language of the statutes which the Cour<s 'were construing and which are diherent from the language used in the Act.

Finally, apart from the provisions of s. 17 (3) and the proviso thereto, the rules further reiterate what the proviso contemplates. Rule 15 which deals with provisional assessment where re,urn is incorrect and incomplete runs thus :

"If the return submitted by the dealer appears to the assessing authority to be incorrect or incomplete, the assess-ing authority shall, afcer issuing notice to the dealer calling upon him to produce his accounts to prove the correctness or completeness of his return at time and place to be specified in the notice and after scrutiny of all the accounts if any, produced by the dealer and after taking into account all rele-vant materials gathered by it determine the turnover of the dealer to the best of its judgment, and fix provisionally the annual tax or taxes payable at the rate or rates speci!Jed in Section or notified under Section 10. Before determining the turnover under this rule, the dealer shall be given reasona-ble opportunity of being beard and also to prove the correct-ness or completeness of the return submitted by him."

The Rule clearly shows that where the r_eturn of the assessee is in-correct or incomplete he must be called upon to prove the corrcctn~ss or completeness of the same. It also enj0:ins that reasonable oppor-tunity of being he.ard should be given to the assessee to prove the correctness or completeness of the return submitted by him. Thus .the requirement of the second part of the proviso to s. 17 (3) is reiter-ated in r. 15. We understand that such provision in the Act is peculiar to the Kerala Act and is not to be found in other sales-tax statutes which provide for best judgment assessment. Thus on true interpretation of s. 17(3), the proviso thereto and r. 15, the inescapable conclusion would be that the assessee has been given statutory right to prove the correctness of his return by showing that the materials on the basis of which his return is found to be incorrect or incomplete are wrong and if for this purpose the assessee makes an express prayer for cross-e.xamining the wholesale dealers whose accounts formed the sheet-anchor of the notice issued to the assessee, he is undoubtedly entitled to cross-examine such wholesale dealers. In view of the language in which the Rules are cbuched it seems to us that determinative issue arises in this case-the Depart-H ment taking the stand that the returns filed by the assessees ar.e incorrect and incomplete, whereas the assessees contend that their 17-240SCI/77

returns are correct and that the accounts of the wholesale dealers which formed the basis of the information of the Sales-tax Authorities were wrong and incorrect. Such an issue can only be determined after examination of the accounts of both the parties and after affording the assessees the right to cross-examine the wholesale dealers concern-ed, particularly when the assessee makes specific prayer to 'this effect.

For these reasons, therefore, we are convinced. that the judgment passed by the High Court in all these appeals is correct in law and the High Court has righJy decided the issues involved. The appeals accordingly fail and are dismissed with no order as to costs.

Appeals dismissed.