Invalidity of Assessments in Deceased's Name: Ex Parte, Denial of Hearing, Dissent, Majority Decision

Naba Kumar Ghosh and Another Versus Commercial Tax Officer, Durgapur Charge and Another

Naba Kumar Ghosh and Another Versus Commercial Tax Officer, Durgapur Charge and Another - [1995] 96 STC 514 (WBTT) Issues Involved:
1. Validity of assessments and notices issued in the name of a deceased person.
2. Limitation of assessment proceedings.
3. Opportunity for hearing before assessment.
4. Basis and material for ex parte assessments.

Issue-wise Detailed Analysis:

1. Validity of Assessments and Notices Issued in the Name of a Deceased Person:

The applicants argued that the assessments and notices issued in the name of the deceased Ramapada Ghosh were nullity, illegal, and void. They contended that notices addressed to a deceased person are invalid. The respondents countered that they were unaware of Ramapada Ghosh's death as the legal representatives did not inform them as required by section 16 of the Act. The Tribunal examined various precedents, including decisions from the Supreme Court and High Courts, which held that assessments and notices issued to a deceased person without specifying the legal representatives are invalid. The Tribunal concluded that the assessments and notices issued in the name of Ramapada Ghosh were invalid as they were made after his death without proper information from the legal representatives.

2. Limitation of Assessment Proceedings:

The applicants claimed that the assessments were barred by limitation as per section 11(2a) of the Act. The respondents argued that the period of limitation should exclude the duration of an interim injunction granted by the High Court, which restrained them from proceeding with assessments. The Tribunal noted that the interim injunction order came to an end by operation of law in May 1989, and the impugned proceedings and assessments were done by August 1991. Thus, the Tribunal held that the assessments were not barred by limitation, considering the exclusion of the period during which the injunction was in force.

3. Opportunity for Hearing Before Assessment:

The applicants contended that they were not given an opportunity for a hearing before the assessments were completed. The Tribunal observed that the applicants did not comply with the requirements of sections 16 and 10(2) of the Act and did not get the registration certificate amended under section 17. Consequently, the respondents were unaware of the death of Ramapada Ghosh. The Tribunal held that the applicants could not now complain that they were denied an opportunity for a hearing, as they had themselves kept the door for hearing closed by not informing the respondents about the death of Ramapada Ghosh.

4. Basis and Material for Ex Parte Assessments:

The applicants argued that the ex parte assessments were without basis and materials. The Tribunal found that the best judgment assessments were based on past records of the registered dealer. It concluded that the assessments were not arbitrary or whimsical, as they were grounded on the past records of the business. Therefore, the Tribunal held that the objection regarding the lack of basis and material for the assessments was not sustainable.

Separate Judgment:

S.P. Das Ghosh (Chairman) dissented, holding that the assessments and notices issued in the name of the deceased Ramapada Ghosh were nullity and invalid. He emphasized that assessments should be made in the name of the legal representatives, and the failure of the applicants to inform the death of Ramapada Ghosh did not validate the assessments made in the deceased's name. He recommended setting aside the assessments and issuing fresh notices to the legal representatives.

Order of the Tribunal:

In view of the majority decision, the applications were dismissed with no cost allowed. The interim order passed on October 8, 1991, was vacated. The majority decision and the order governed all four cases, RN-269 of 1991, RN-270 of 1991, RN-271 of 1991, and RN-272 of 1991.