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Bhagawat Sawrup Gupta Vs. Commissioner of Taxes and ors. - Court Judgment

LegalCrystal Citation
Subject;Sales Tax
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 310 of 1981
Judge
AppellantBhagawat Sawrup Gupta
RespondentCommissioner of Taxes and ors.
Appellant AdvocateO.P. Bhati, Adv.
Respondent AdvocateP. Prasad, Government Adv.
DispositionPetition dismissed
Excerpt:
- - --and the above statements are true to the best of my/our knowledge and belief. in a free economy, controls have to be introduced to ensure availability of consumer goods like foodstuffs, cloth or the like at a fair price and the fixation of such a price cannot be said to be an unreasonable restriction in the circumstances. 12. considering the relevant provisions of the act and the rules as well as the submissions made by the learned counsel for both the parties, i am of the opinion that both annexures a and b to the petition (as impugned by the petitioner) are not in any way violative either of the provisions of the rules or of article 19(1)(g) and articles 301 and 304 of the constitution of india......office.it may be stated here that the petitioner has enclosed along with annexure a a prescribed form stated to be accompanying the specimen form to be filled up by all dealers and to be submitted to the superintendent of taxes, which was to be treated as a permit for the purpose of taking delivery or to transport the consignment, as the case may be. it may also be noted here that, according to the respondents, the said accompanying prescribed form of annexure a is no longer existing as the same has been replaced by annexure b, which has been reproduced above.4. mr. 0. p. bhati, the learned counsel for the petitioner, has urged the following points in support of the petition : (a) the contents of annexure a appears to be a direction to the dealer including the ' 'petitioner' who has.....
Judgment:

T.C. Das, J.

1. By this writ application under Article 226 of the Constitution of India, the petitioner has challenged the validity of letter No. KGS-95/80-81/ 303-342 dated 7th February, 1981 (annexure A to the writ petition along with annexure B), issued by the Superintendent of Taxes, Gauhati, Circle No. 1, respondent No. 2, relating to import of taxable goods into the State of Assam by road.

2. The case of the petitioner is that he is a businessman and is carrying on the business of selling, purchasing, supplying, storing or otherwise disposing of goods, viz., automobile spare parts, hardware, electrical goods, machinery parts and spares and general stores under the name and style of M/s. Allied Auto Agencies. In the course of business, the petitioner used to purchase the goods and store the same for the purpose of selling, after importing them from outside the State of Assam. Besides, the petitioner also used to purchase materials within the State of Assam as and when necessary. The petitioner is also a registered dealer under the Central Sales Tax Act, 1956, the Assam Finance (Sales Tax) Act, 1956, and the Assam Sales Tax Act, 1947, for the purpose of purchasing, selling and storing the goods aforementioned.

3. On or about 7th February, 1981, respondent No. 2 addressed a letter bearing No. KGS/95/80-81/303-342 (annexure A) to the Kamrup Chamber of Commerce, Gauhati, for the purpose of circulating the same amongst the members of the Chamber--vide respondent No. 2 directed that any dealer intending to import finance taxable goods from outside the State of Assam by road transport should submit the prescribed form enclosed therewith before the Superintendent of Taxes and to cause the production of the said form duly filled up before the officer-in-charge of the check post together with the bills (sic). It was further directed in that letter that in absence of the said permit, the officer-in-charge of the check posts at Baxirhat, Damra, Charaibari, etc., will not allow the vehicle carrying the imported consignments of taxable goods to cross the check post. This was to take effect from 1st March, 1981. A perusal of the aforesaid letter (annexure A) shows that it was not addressed to anybody, but according to the petitioner, this is the same letter which was issued to the Kamrup Chamber of Commerce, Gauhati, along with the specimen form (annexure B), which is reproduced below:

Sl. No.

Book No.Date of issueTo whom issued---Name and address of dealer.ToThe Superintendent of Taxes,---Check Post.

I/We hereby declare that the following consignment---is being imported into Assam.

(1) Name and address of the consignor---

(2) Name and address of the consignee---

(3) Place of despatch---

(4) Name of check post through which the goods will be transported---

(5) Destination---

(6) Description of consignments---

(7) Quantity---

(8) Weight---

(9) Value---

(10) Consignor's invoice No. and date---

(11) Name and address of the owner of the vehicle by which the goods are carried---

(12) Remarks (if any)---

I/We hereby declare that I/we am/are registered under the Assam Finance (Sales Tax) Act, 1956, holding certificate No.--- and the above statements are true to the best of my/our knowledge and belief.

I/We also undertake to duly account for the disposal of the above goods when imported and to pay tax on the sales thereof according to the provisions of the said Act and the Rules made thereunder.

Name of the dealer in full---Address---Signature and status of the applicant---

Office of issue. Signature of Superintendent of Taxes.

Seal of office.

It may be stated here that the petitioner has enclosed along with annexure A a prescribed form stated to be accompanying the specimen form to be filled up by all dealers and to be submitted to the Superintendent of Taxes, which was to be treated as a permit for the purpose of taking delivery or to transport the consignment, as the case may be. It may also be noted here that, according to the respondents, the said accompanying prescribed form of annexure A is no longer existing as the same has been replaced by annexure B, which has been reproduced above.

4. Mr. 0. P. Bhati, the learned counsel for the petitioner, has urged the following points in support of the petition : (a) the contents of annexure A appears to be a direction to the dealer including the ' 'petitioner' who has not been empowered to issue such directions either under rule 74 of the Assam Finance (Sales Tax) Rules or under any other provisions of the Assam Finance (Sales Tax) Act, 1956, hereinafter referred to as 'the Act' and 'the Rules', to impose a permit for the dealers intending to import finance tax goods from outside the State of Assam by road transport; (b) the authority has no such power to direct the dealers and/or the officer-in-charge of such check posts to comply with such directions. The learned counsel submits that under Rule 74 of the Rules, the Commissioner can only issue instructions to the officer-in-charge of a check post but not to the dealers to furnish the declaration as in form XV ; (c) the provision of Section 32 of the Act does not empower the Commissioner of Taxes to direct a dealer to submit any such form (annexure B) though he may ask for certain information from the dealers as stated in Sub-sections (1) to (4) of Section 32 of the Act and not beyond that; (d) by introducing the system of permit (annexure B) the authority has put an unreasonable restriction upon the dealers to carry on trade and business who desire to import goods from outside the State of Assam ; (e) a new system of permit, if at all is made, is only to check the evasion of taxes for which there are other provisions of the Act for taking appropriate action in such cases of evasion and those are provided under Sections 11, 13, 25, 31, 33 and 33A of the Act; (f) the impugned permit (annexure B) is illegal, void, arbitrary and violative of the rights of the dealers guaranteed under Articles 19(1)(g), 301 and 304 of the Constitution of India being an unreasonable restriction on freedom of trade. The learned counsel submits that dealers are put to handicap as they are to submit particulars in advance which is neither feasible nor practicable under any circumstance.

5. In support of his centention the learned counsel has referred to me a decision of this Court in Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981 disposed of on 20th April, 1981) [1982] 52 STC 354. Besides, he has also relied on the decisions reported in Dwarka Prasad v. State of U. P. AIR 1954 SC 224, Himmatlal v. State of M. P., AIR 1954 SC 403 and Hansraj Bagrecha v. State of Bihar, [1971] 2 SCR 412 relating to the transport restrictions imposed in the course of trade and commerce.

In Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981) [1983] 52 STC 354 the precise question that came up for consideration was as to whether the requirements in annexures B and C of that petition with regard to obtaining of a permit in advance by filing a declaration in the prescribed form containing the particulars in connection with goods to be imported from outside Assam by road was within the powers envisaged under the Act and the Rules and whether those are consistent with the provisions of Article 19(1)(g), and not saved by Article 19(6), and Articles 301 to 304 and not saved by Article 304(b) of the Constitution of India.

7. The validity of annexures B and C was tested and on examination, this Court held that the directions as per annexure B with the annexure C of that petition were ultra vires the powers of the Superintendent of Taxes and the Commissioner of Taxes and the same were quashed. My learned brother before whom the above matter came up for consideration, observed in the concluding portion of his judgment that though annexure B was quashed, it would not cause any prejudice to the instructions of the Commissioner.

8. Mr. P. Prasad, the learned Government Advocate, Assam, appearing on behalf of the respondents, has submitted that the present case of the petitioner is not covered by the decision of this Court in Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981) [1983] 52 STC 354 as submitted by the learned counsel for the petitioner. The reason being, according to the learned Government Advocate, that the enclosure of annexure A to the present petition, viz., annexure B, is entirely different from that of annexure C of the said case which was issued under the provisions of rules 55 and 56 of the Rules with the word 'permit' (sic). The present form and the directions as per annexures A and B were not the subject-matter of the earlier case and, as such the decision of that case is not at all relevant to the case at hand. The learned Government Advocate has drawn my attention to paragraphs 16 and 17 of the judgment in Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981) [1983] 52 STC 354 and has submitted that the form mentioned therein was issued under form XIV of the Assam Finance (Sales Tax) Act, 1956, which was made annexure B with annexure C. In that context he has submitted that the petitioner in the present case has impugned annexures A and B which are absolutely different in their context with that of annexures B and C of Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981) [1983] 52 STC 354.

9. I have perused the judgment of Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981) [1983] 52 STC 354 and have also compared annexures A and B of the present petition with that of annexures B and C of Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981) [1983] 52 STC 354 and I find that the impugned annexures A and B of the present petition are entirely different in their context. As already alluded, this Court in Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981) [1983] 52 STC 354 proceeded with the question of authority of the Commissioner of Taxes as to the requirement for a registered dealer to obtain a permit in prescribed from before importing goods from outside the State and to furnish other particulars which were held to be violative of the provisions of the Constitution, not empowered by the Act and the Rules. On going through annexure B of the instant case, it appears that no such permit is sought for though the particulars as prescribed in the form are required to be submitted by the dealers. Therefore, I am constrained to hold that the present case is not covered by the decision of the earlier case as referred to me by the learned counsel for the petitioner.

10. Mr. Prasad, the learned Government Advocate, has further submitted that in the present case if annexure B is perused, it would appear that this form is to be filled up by the dealers with a declaration for the purpose of furnishing the same to the Superintendent of Taxes for onward transmission to the check posts as and when the dealer imports goods by road from outside the State. When a dealer transports taxable goods, he is to furnish this form and there is no question of obtaining any permit beforehand as required earlier in pursuance of the form issued under the provisions of the rules 55 and 56 of the Rules. The learned counsel has also drawn my attention to the contentions made in the petition that the petitioner in his petition has not challenged the vires of the rules viz., rules 71, 72 and 73 and not even Rule 74 of the Rules. Thus, it appears, that annexure B attached to annexure A to this petition is only a prescribed form to be obtained by dealers from the Superintendent of Taxes for furnishing informations as per requirements stated therein with a declaration that the dealer is registered under the Act and holding certificate from the authority concerned to that effect with a further declaration that the dealer would duly account for the disposal of the goods and pay tax thereon according to the provisions of the Act and the Rules framed thereunder. This, according to the learned counsel, appearing on behalf of the State, is neither an unreasonable restriction nor violative of the provisions of the Act or the Rules. The learned counsel has drawn my attention to the provisions of Rule 74 which empowers the Commissioner to direct the officer-in-charge of a check post by specific orders in writing, to do or refrain from doing something if it is otherwise not inconsistent with the provisions of the Act and the Rules. On receipt of such direction, the officer-in-charge of the check post shall carry out the order of the Commissioner. For this purpose, Rule 74 may be referred, which is to the following effect:

74. Power of Commissioner.--The Commissioner may by general or specific order in writing not inconsistent with the provisions of the Act and the Rules, direct the officer-in-charge of a check post subject to such conditions as he may deem fit to impose, to do or refrain from doing something which the latter has the authority to do, whereupon such officer-in-charge shall carry out the order.

Rule 71 provides for setting up of check post under Section 33A of the Act by the State Government whenever it decides to set up such check post. It provides further that where a check post is set up on a thoroughfare or road, barriers may be erected across the thoroughfare or road in the form of contrivance to enable traffic being intercepted, detained and searched. Sub-rule (4) of Rule 71 runs as follows :

' 71. Check post--(1)------------------

(2)____________

(3)_______

(4) No person shall transport taxable goods across or beyond a check post except after filing a declaration in form XV in triplicate before the officer-in-charge of the check post. '

The contention of the learned counsel for the respondents is that annexure B is not an independent form as described in Sub-rule (4) of Rule 71, as it is only a declaration to be submitted in triplicate before the officer-in-charge of the check post. This contention of the learned counsel has sufficient force and I am constrained to hold that annexure B is in accordance with Sub-rule (4) of Rule 71 and the Commissioner of Taxes is empowered by virtue of Rule 74 of the Rules to issue directions to the officer-in-charge of the check post for its compliance. It is true that the power of Commissioner under Rule 74 cannot extend to give a direction to any dealer; but on going through the form (annexure B) it is seen that there is no such direction to a dealer, as was the case in Electric & Furnishing Mart v. State of Assam (Civil Rule No. 217 of 1981) [1983] 52 STC 354. The letter (annexure A) is rather an information to be circulated a0mongst the dealers about the procedure to be followed by the officer-in-charge of the check post in accordance with the directions of the Commissioner to verify form XV as mentioned in Sub-rule (4) of Rule 71 with reference to the particulars as embodied in the said form. It is a preventive measure as per the terms of rules 71, 72 and 73 so that no dealer can evade tax as required to be paid under the Act. The learned counsel for the respondents has drawn my attention to the decisions of the Supreme Court in Pandit Banarsi Das Bhanot v. State of M. P., AIR 1958 SC 908, Corporation of Calcutta v. Liberty Cinema AIR 1965 SC 1107, Commissioner of Wealth-tax, Assam v. Mahadeo Jalan AIR 1973 SC 1023 and G. K. Krishnan v. State of Tamil Nadu AIR 1975 SC 583, and has submitted that the measure is only regulatory in nature and therefore any such question as to the violation of the provisions of either Article 301 or Article 304 does not arise. I have carefully gone through the aforementioned decisions referred to me by the learned counsel and I am of the opinion, that annexures A and B are neither in any way violative of Articles 301 and 304 of the Constitution nor is it beyond the competency of the authority of the Commissioner to issue such directions under the provisions of Rule 74 of the Rules. The contention of the learned counsel for the petitioner relating to annexures A and B to the petition as violative of Articles 19(1)(g), 301 and 304 of the Constitution of India is without any force on the face of the provisions as laid down under rules 71, 72, 73 and 74 of the Rules. The measure is only regulatory and not restrictive in nature. In a recent decision of the Suprgme Court reported in_Laxmi Khandsari_v._ State of U.P. (1981) 2 SCC 600, their Lordships of the Supreme Court had enunciated principles as to the determination of reasonable restrictions imposed by the State relating to the fundamental rights enshrined in Part HI of the Constitution. In ' paragraphs 16 and 17 of the judgment their Lordships held :

16. It is abundantly clear that fundamental rights enshrined in Part III of the Constitution are neither absolute nor unlimited but are subject to reasonable restrictions which may be imposed by the State in public interest under Clauses (2) to (6) of Article 19. As to what are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen. It is difficult to lay down any hard and fast rule of universal application but this court has consistently held that in imposing such restrictions the State must adopt an objective standard amounting to a social control by restricting the rights of the citizens where the necessities of the situation demand. It is manifest that in adopting the social control one of the primary considerations which should weigh with the court is that as the directive principles contained in the Constitution aim at the establishment of an egalitarian society so as to bring about a welfare State within the framework of the Constitution, these principles should also be kept in mind in judging the question as to whether or not the restrictions are reasonable. If the restrictions imposed appear to be consistent with the directive principles of State policy they would have to be upheld as the same would be in public interest and manifestly reasonable.

17. Further, restrictions may be partial, complete, permanent or temporary but they must bear a close nexus with the object in the interest of which they are imposed. Sometimes even a complete prohibition of the fundamental right to trade may be upheld if the commodity in which the trade is carried on is essential to the life of the community and the said restriction has been imposed for a limited period in order to achieve the desired goal.

It was further held in para 21 of the judgment:

21. Finally, in determining the reasonableness of restrictions imposed by law in the field of industry, trade or commerce, the mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition of restrictions will not render them unreasonable because it is manifest that trade and industry pass through periods of prosperity and adversity on account of economic, social or political factors. In a free economy, controls have to be introduced to ensure availability of consumer goods like foodstuffs, cloth or the like at a fair price and the fixation of such a price cannot be said to be an unreasonable restriction in the circumstances.

In the case of V. G. Row AIR 1952 SC 196 their Lordships of the Supreme Court while determining the question as to what are reasonable restrictions, held:

It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial conception. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases, can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.

11. To sum up, the contentions raised by the learned counsel for the petitioner that annexures A and B are such which put an unreasonable restriction on trade, cannot be accepted. Therefore, in my opinion, merely introducing annexure B to be produced at the check post cannot be said to be an unreasonable restriction put to a trader to carry on his trade who desires to transport taxable goods from outside the State.

12. Considering the relevant provisions of the Act and the Rules as well as the submissions made by the learned counsel for both the parties, I am of the opinion that both annexures A and B to the petition (as impugned by the petitioner) are not in any way violative either of the provisions of the Rules or of Article 19(1)(g) and Articles 301 and 304 of the Constitution of India. Therefore, I hold that the petition is devoid of merit and is liable to be dismissed which I hereby do. The rule is discharged, but on the facts and circumstances of the case, I make no order as to costs.

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