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Seth Sunderdas Contractor Vs. Commissioner of Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 309 of 1969
Judge
Reported in1971MPLJ107; [1971]28STC308(MP)
AppellantSeth Sunderdas Contractor
RespondentCommissioner of Sales Tax and anr.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateK.K. Dubey, Government Adv.
DispositionPetition dismissed
Excerpt:
- .....not disputed that the petitioner's head office or principal place of business is situated within raipur circle no. 2.by notification no. 1738-1113/v.s.t. of 13th june, 1966, the state government under section 3(3) of the act directed that sales tax officers of raipur 1 and raipur 2 shall exercise the powers conferred under the act within the local limits of raipur 1 and raipur 2 circles respectively. the local limits of these circles were also specified in the notification. on 24th june, 1968, the state government transferred shri r.n. mishra, who was then the officiating sales tax officer, flying squad, raipur, to the post of officiating additional sales tax officer, raipur circle 2. there is also a sales tax officer, namely, shri gautam, appointed by the government for raipur circle.....
Judgment:
ORDER

G.P. Singh, J.

1. By this petition under Article 226 of the Constitution, the petitioner seeks a writ in the nature of prohibition, against Shri R.N. Mishra, Additional Sales Tax Officer, before whom proceedings for assessment of sales tax for the year 1963-64 are pending.

2. To appreciate the contentions raised in this petition, certain material facts and relevant provisions of law may first be stated. The petitioner is a partnership firm and has registered itself as a dealer under the Madhya Pradesh General Sales Tax Act, 1958. The power to assess the tax liability created by the Act is conferred on the Commissioner under Sections 18 and 19. The Commissioner is authorised by Section 30 to delegate any of his powers to officers appointed under Section 3 to assist him. One of the categories of officers that can be appointed under that section to assist the Commissioner comprises of 'Sales Tax Officer or Additional Sales Tax Officer'. 'Sales Tax Officer' is defined in Section 2(p) to mean a Sales Tax Officer appointed under Section 3 and to include an Additional Sales Tax Officer. These officers exercise jurisdiction 'within such areas as the appointing authority may specify' under Section 3(3). The State Government has framed rules under the Act which are known as the Madhya Pradesh General Sales Tax Rules, 1959. Rule 2 of these Rules defines certain expressions of which three are relevant. 'Circle' means the area comprised within the local limits of the jurisdiction of a Sales Tax Officer as specified under Section 3(3). 'Assessing authority' means the person to whom the Commissioner has delegated all or any of his powers of assessment and imposition of penalty or levy of fee under the Act. 'Appropriate Sales Tax Officer' in relation to any particular dealer means the Sales Tax Officer of the circle in which the dealer's place of business is situated or if a dealer has more than one place of business in the State, the Sales Tax Officer of the circle in which his head office or principal place of business is situated. It is not disputed that the petitioner's head office or principal place of business is situated within Raipur Circle No. 2.

By Notification No. 1738-1113/V.S.T. of 13th June, 1966, the State Government under Section 3(3) of the Act directed that Sales Tax Officers of Raipur 1 and Raipur 2 shall exercise the powers conferred under the Act within the local limits of Raipur 1 and Raipur 2 circles respectively. The local limits of these circles were also specified in the notification. On 24th June, 1968, the State Government transferred Shri R.N. Mishra, who was then the officiating Sales Tax Officer, flying squad, Raipur, to the post of officiating Additional Sales Tax Officer, Raipur Circle 2. There is also a Sales Tax Officer, namely, Shri Gautam, appointed by the Government for Raipur Circle 2.

The delegation of the Commissioner's powers was made by the Commissioner, Shri K.C. Tiwari, by Notification No. 267, dated 1st April, 1959, under which powers under Sections 18 and 19 in relation to assessment of dealers were conferred on Sales Tax Officers. Shri K.C. Tiwari ceased to hold the office of the Commissioner some time in 1964 and some other officer was appointed in his place. There has been, however, no fresh order of delegation by the new Commissioner and the officers are still exercising the powers delegated to them by the notification issued by the previous Commissioner Shri K.C. Tiwari.

3. The first contention of the learned Counsel for the petitioner is that the State Government must specify the area within which an officer appointed by the Government is to exercise jurisdiction and no such area has been specified while transferring Shri Mishra to the post of Additional Sales Tax Officer, Raipur Circle 2.

Now, we have already referred to the notification of 13th June, 1966, by which the State Government specified the areas comprised in Raipur Circle 1 and Raipur Circle 2 within which Sales Tax Officers of these circles are to exercise jurisdiction. It has also been noticed that Sales Tax Officer as defined in Section 2(p) of the Act includes an Additional Sales Tax Officer. In this background when Shri Mishra was transferred to the post of Additional Sales Tax Officer, Raipur Circle 2, it must be held that he got jurisdiction to exercise the powers of a Sales Tax Officer within the area comprised in Raipur Circle 2. The area comprised within Raipur Circles 1 and 2 being already demarcated by the earlier notification, it was not necessary to repeat it when Shri Mishra was posted to Circle 2. Posting of a Sales Tax Officer to this circle necessarily implies that the State Government has also specified the area within the circle as the area within which the officer so posted is to exercise jurisdiction.

4. The second contention of the learned Counsel is that the notification delegating the powers of Commissioner issued by the Commissioner, Shri K.C. Tiwari, exhausted itself after Shri Tiwari ceased to be the Commissioner, and therefore, no Sales Tax Officer can exercise the powers under the Act until a new notification is issued by the new Commissioner. According to the learned counsel, every time a new officer is appointed as Commissioner, there should be a fresh notification issued by him under Section 30, delegating his powers to the other officers appointed under the Act to assist him.

There is no merit in this contention. The scheme of the Act is to create an office of the Commissioner of Sales Tax and to assign to it various powers and duties. Although the functions of the Commissioner have to be performed by the individual, who for the time being is appointed to be the Commissioner, the office exists even when no officer is appointed to hold that office. Section 30 which enables delegation reads : 'The Commissioner may, by order in writing, delegate any of his powers and duties under this Act.' The words 'any of his powers and duties' as they occur here, refer to the powers and duties of the office of the Commissioner and not of the powers and duties of the individual holding the office. Therefore, when powers and duties are delegated under that section, the delegation is not restricted to the tenure of the officer making the delegation but continues even after he vacates the office and another officer is appointed to hold the office of the Commissioner. We are, therefore, of opinion that the order of delegation made by the Commissioner, Shri K.C. Tiwari, did not lapse after he ceased to be the Commissioner and is still valid.

5. It was lastly contended by the learned counsel that as there are two officers, Sales Tax Officer, Shri Gautam, and Additional Sales Tax Officer, Shri Mishra, who exercise jurisdiction in Circle 2 of Raipur, none of them can exercise jurisdiction unless some machinery is devised under the Act to divide their respective jurisdiction.

We do not find anything in the Act or the rules to suggest that there cannot be two Sales Tax Officers, exercising jurisdiction in the same circle. In our opinion, the Sales Tax Officer, Raipur Circle 2, and the Additional Sales Tax Officer, Raipur Circle 2, both exercise jurisdiction throughout the Circle. For convenience sake, there may be some administrative direction or arrangement for distribution of business arising from the circle, but both the officers continue to have jurisdiction throughout the circle in spite of such an administrative arrangement. It is not necessary that the jurisdictional area of these officers should again be divided under the Act before any of them can exercise their powers in the circle. That will in effect amount to creating a circle within a circle and to hold that in one circle, there can be only one Sales Tax Officer. But that is not the correct legal position as there is nothing in the Act to indicate that there can be only one Sales Tax Officer in a circle. In our opinion, Shri Mishra has jurisdiction throughout Raipur Circle 2 and the assessment proceedings against the petitioner can be continued by him.

6. In the result, the petition fails and is dismissed with costs. Counsel's fee Rs. 150. The outstanding amount of security deposit shall be refunded to the petitioner.


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