JUDGMENT Brijlal Gupta, J.
1. These writ petitions under Article 226 of the Constitution of India are all directed against orders of provisional assessment to sales tax under Rule 41(3) of the U. P. Sales Tax Act. A variety of objections have been raised by the petitioners in the various petitions. In the view which I take and particularly in view of the statement of the learned Advocate-General who appeared for the respondents in the writ petitions it is not necessary for me to deal with these objections.
2. Sub-rule (5) of Rule 41 provides as follows:
41. (5) Upon the expiry of the assessment year the Sales Tax Officer shall, after such enquiry as he may deem necessary, determine the turnover of the assessment year and shall assess tax thereon.
3. Sub-rule (6) of the said rule provides as follows :
41. (6) If the tax assessed differs from the total amount deposited or paid by cheque, the difference shall be realised or refunded by the Sales Tax Officer, as the case may be.
4. Thus it is clear that the provisional assessment is liable to be revised, modified, or set aside when the final assessment is made and the deficiency or excess of the tax already realised is liable to be made good or refunded, as the case may be, as a consequence of the final assessment order. The learned Advocate-General has given an undertaking that in every one of these cases a final assessment shall be made and the provisional assessment shall where necessary be suitably modified or set aside. The learned Advocate-General has given a further undertaking that until a final assessment is made the tax demand created under orders of provisional assessments will not be realised from the petitioners. The learned Advocate-General has also stated that sufficient opportunity shall be given to the petitioners to lead evidence in their cases before a final assessment is made. I am of the view that these undertakings are sufficient to serve the purpose of the petitioners, and it is riot necessary for me to go into the merits of these writ petitions or to grant any relief to the petitioners in these petitions. The learned Advocate-General has only asked that until a final assessment order is made the petitioners should be required to furnish security either of a bank guarantee or of movable or immovable property at the option of the petitioners, subject to this that in each case the Sales Tax Officer concerned is satisfied of the sufficiency of the security. I see no harm in this.
5. Before, however, I part with these cases, I should like to make the following observations which I am compelled to do on account of what I have seen of the manner in which the Sales Tax Officers have conducted the proceedings before them, and also the manner in which counter-affidavits have been filed by various Sales Tax Officers in these writ petitions.
6. Some of the Sales Tax Officers have contented themselves by merely saying that a particular petitioner is liable to sales tax because he is a commission agent; others have said that he is liable to sales tax because of the explanation added to the definition of "dealer" in Section 2(c); still others have contented themselves by fastening liability on the ground that the particular petitioner is carrying on the business of buying and selling in the customary course without saying anything at all about authority to sell; still others have used the stereotype expression that as a result of enquiries made it has transpired that particular petitioners have authority to sell; yet other Sales Tax Officers have mentioned a few factors for reaching the conclusion that particular petitioners are authorised to sell. These particular factors seem to have been adopted wholesale from some circular letter issued by the Sales Tax Commissioner to the various Sales Tax Officers. It will be noticed that no attempt whatsoever has been made to analyse the necessary ingredients of the definition of "dealer" with the explanation added, and to examine evidence produced in the case and on the basis of evidence and materials to come to the conclusion in each case whether the necessary ingredients required by the section to constitute a person a "dealer" are or are not present in particular cases. It also appears that in some cases no sufficient opportunity has been given to the particular petitioners to establish by evidence or by the production of materials whether or not they satisfy the requirements of the definition. It also does not appear from the provisional assessment orders that the materials collected by the Sales Tax Officer, if it is a fact that materials were so collected, were put to the petitioners and they were asked to explain the same. They should have been so done as pointed out by the Supreme Court in Dhakeshwari Cotton Mills Ltd. v. Commissioner of Income-tax [1954] 26 I.T.R. 775.
7. I am, therefore, of the view that before the Sales Tax Officers concerned proceed to make a final assessment, they will in each case give a sufficient opportunity to the petitioners to lead evidence to prove whether they are or are not "dealers". The results of any private enquiries made by the Sales Tax Officers should be put to the dealers and they should be given an opportunity to meet the same.
8. The essential ingredients of the definition of a "dealer" as required by the explanation under Section 2(c) are that a person in order to be a dealer must be (1) carrying on a business, (2) that this business should be of buying and selling goods, (3) that he should have the authority to buy or sell goods on behalf of his principals, and (4) that he should have this authority in the customary course of business. Further the explanation makes it clear that the name by which a particular dealer may be called is immaterial so long as he fulfils the above requirements. It will of course be open to the Sales Tax Officers to take into account admissions made by the petitioners in their statements or return forms or otherwise that they have authority to sell goods on behalf of their principals.
9. I have noticed that in numerous cases the petitioners relied upon certain printed forms to show that they are in no way concerned with the transaction of sale. The Sales Tax Officers should carefully scrutinise the gemtmeness of these forms and record a finding one way or the other whether these forms are genuine or have not merely been got manufactured for the purposes of escaping liability. It is only after the Sales Tax Officers have applied their minds to all these matters and have given necessary opportunity and recorded necessary findings that they will be able to make final assessment orders answering the requirements of the statute.
10. They should remember that the functions which they discharge in making assessments are judicial functions as laid down by the Supreme Court in Suraj Mall Mohta and Co. v. Visvanatha Sastri [1954] 26 I.T.R. 1. These functions must be faithfully and conscientiously discharged in respect of each assessee and not on any general instructions of their departmental officers or according to any set pattern or any pre-determined formula.
11. I should also like to observe that I have found that generally speaking the counter-affidavits which have been filed in reply to these writ petitions are far from satisfactory. The counter-affidavits are full of generalisations and no careful attempt seems to have been made to meet the particular allegations in the affidavit by particular averments in counter-affidavits. Facts, opinions, arguments and generalisations have been mixed up haphazardly in drawing up the counter-affidavits.
12. The verification of the counter-affidavits is also of a most unsatisfactory character. Averments have been sworn on the basis of information supposed to have been derived from the records when a mere look at some of these averments would show that there could be nothing at all in the records about the same. In writ petitions the general rule as laid down in Chapter 22, Rule 1(2), of the Rules of Court is that averments in affidavits should be based upon personal knowledge. In case information is to be found in the records, averments may be sworn on that basis. In case averments are based upon information, the source of information must be disclosed in the affidavits. It is hoped that in filing affidavits in the future these directions will be kept in view by the Sales Tax Officers concerned and affidavits will be drawn up carefully and sworn properly.
13. It should be kept in view that if assessments are framed in a slipshod or careless manner, hardship is caused to the members of the public in running around to appellate and revisional authorities or in filing writ petitions in the High Court. It should also be borne in mind that this may lead to awarding of costs against the State.
14. With these observations, I dismiss these petitions subject to the following directions : (1) In each case a final assessment shall be made. (2) Before the final assessment is made a reasonable opportunity shall be given to the petitioners to produce such evidence or other material as they may like to produce. (3) That if any information or material has been collected by the Sales Tax Officers behind the back of the petitioners the same shall be put to the petitioners and they will be required to explain the same. And (4) until a final assessment order is made the tax demand created under the provisional assessment orders would not be realised from the petitioners. This will be so if the petitioners furnish sufficient security as pointed out above. If security is not so furnished the Sales Tax Officers will be at liberty to enforce the demand under the provisional assessment orders.
15. In the circumstances I make no order as to the costs of these writ petitions.
16. A certified copy of this judgment shall be placed on the record of every one of these writ petitions.