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Balharshah Timber Depot Vs. Commissioner of Commercial Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1892 of 1954
Judge
Reported inAIR1958Cal246,[1958]9STC675(Cal)
ActsBengal Finance (Sales Tax) Act, 1941 - Sections 4(2), 7(3), 11(2) and 20(4); ;Bengal Sales Tax Rules - Rules 5, 6 and 80; ;Constitution of India - Article 226
AppellantBalharshah Timber Depot
RespondentCommissioner of Commercial Tax and anr.
Appellant AdvocateAnil Kumar Sinha and ;Digendra Kishore Choudhury, Advs.
Respondent AdvocateJ. Majumdar, Addl. Govt. Pleader and ;Pradyut Kumar Banerjee, Advs.
Cases ReferredPromode Lal Maitra v. Additional District Magistrate
Excerpt:
- .....11 (2) of the act or in making an order of assessment under the same section. it may be that the sales tax officer could have issued the registration certificate a fortnight or a month prior to the date when the certificate was actually issued in this case. it appears however from paragraph 7 of the counter-affidavit that as proper enquiries according to law had to be made, the registration certificate could not be issued before the 17th of february, 1953.4. mr. majumdar has argued that as the petitioner did not appeal under section 20 of the sales tax act and moved this court under article 226 of the constitution after the remedy by way of appeal became barred by lapse of time, the discretionary relief under article 226 of the constitution should not be granted to the petitioner......
Judgment:
ORDER

H.K. Bose, J.

1. This is an application under Article 226 of the Constitution for an appropriate Writ quashing an order of assessment dated the 6th February 1954 made under the provisions of the Bengal Finance (Sales Tax) Act, 1941 and directing the respondents to forbear from giving effect to the said assessment order and to the notice issued in connection with the said assessment proceedings.

2. The petitioner is a registered partnership firm carrying on business in timber as wholesale and retail dealer since 8th August, 1952 at 40 Chetla Road, P. S. Alipore, in the district of 24-Parganas. It is alleged that on the 7th November, 1952 the petitioner applied before the Commercial Tax Officer, Bhowanipore, for a registration certificate after the taxable quantum in respect of sale of timber in the said business exceeded the limit specified under the Bengal Finance (Sales Tax) Act 1941 but the authorities concerned delayed in granting the registration certificate and it was after the lapse of more than 4 months that the Sales Tax Authorities granted the certificate of registration in the prescribed form on the 17th February, 1953. Thereafter on 2nd March, 1953 a notice in Form No. 6 as prescribed by the Sales Tax Rules was issued to the petitioner, for assessment under Section 11 (2) of Act, directing the petitioner to be present with the necessary books of accounts for assessment of sales tax in respect of the period from 12th September, 1952 to 16th February, 1953. It appears that the petitioner appeared before the Commercial Tax Officer pursuant to such notice and made representations on the lines set out in paragraph 5 of the petition and objected to the jurisdiction of the Sales Tax Authorities to make the assessment in respect of the said period and under the said provisions of Section 11 (2) of the Act. The Commercial Tax Officer however overruled the said objection and assessed a sum of Rs. 2,202-15-9 as the sales tax payable by the petitioner in respect of the period from 12th September, 1952 to 16th February, 1953 under Section 11 (2) of the Act. Thereafter on or about 11th February, 1954, the Commercial Tax Officer issued a notice in form No. VII of the Sales Tax Rules directing the petitioner to deposit the amount assessed, into the Reserve Bank, Calcutta, by the 20th of March, 1954. The petitioner thereafter filed an application on the 24th April, 1954, for review of the order of assessment dated the 6th of February, 1954 before the Commercial Tax Officer who had made the said assessment but the Commercial Tax Officer did not allow the said application of the petitioner. The petitioner has raised various grounds challenging the validity of the order of assessment, in paragraphs 9 to 14 of the petition, but the Rule Nisi which was issued by Sinha J. on the 26th May, 1954 was limited to grounds (e), (g), (h) and (i) as set out in paragraph 13 of the petition.

3. Mr. Anil Kumar Sinha, the learned Advocate for the petitioner, has argued that the notice given by the Commercial Tax Officer under Section 11 (2) in Form No. 6 on 2nd March 1953 for assessment for the period from 12th September, 1952 to 16 February, 1953 and the actual assessment made under Section 11 (2) of the Act is illegal and without jurisdiction. It is submitted by Mr. Sinha that in order to attract Section 11 (2) of the Act it is to be established that the petitioner 'failed to get itself registered' within the meaning of those words as used in Section 11 (2) of the Act, but as the petitioner had applied for registration on 7th November, 1952 and the Sales Tax Authorities took four months' time to get the petitioner registered, and actually put the petitioner on the register on the 17th February, 1953, it cannot be said that the petitioner failed to get itself registered. It appears to me that a person can be said to have failed to get himself registered when he does not take any steps whatsoever to obtain a registration certificate; but when he has applied for registration and has not thereafter done anything to prevent or obstruct registration but the authorities concerned are unable for some reasons or other, to complete registration before a certain time, the dealer concerned cannot be said to have failed to get himself registered. It appears however in the present case that although the taxable quantum of the petitioner had exceeded the specified limit two months prior to 12th September, 1952 the petitioner did not put in an application for registration before the 7th November, 1952 and it appears that even this application which was put in on the 7th of November, 1952 was not in order as it did not contain the signatures of all the partners of the petitioner firm nor did it contain the signatures of the attesting witnesses as required under columns 8 and 9 of the prescribed Form No. `1(a) of the Sales Tax Rules. The defects appear to have been remedied on the 18th December, 1952 when the petitioner put in a revised application. It is therefore clear that the Sales Tax Authorities were not in a position to take any action or steps on the application for registration until a regular application was put in on the 18th of December, 1952. It appears from Rule 5 of the Sales Tax Rules as also from the prescribed Form No. 1(a) that various particulars have to be set out in an application for registration which is made under the provisions of the Act; and it is incumbent upon the Authority dealing with that application to satisfy himself upon proper enquiry that the particulars required to be set out in Form No. 1(a) read with Rule 5 of the Sales Tax Rules are correct and complete. Reference may be made to Section 7 (3) of the Act and Rule 6 of the Sales Tax Rules for showing that such is the duty of the Commercial Tax Officer who deals with such application for registration. So it cannot be expected that the Commercial Tax Officer will complete the registration on the very next day or within a very short time thereafter. The Authority must have some reasonable time given to him for making the enquiries in respect of the particulars set out in the petition and satisfying himself that they are correct and complete. What is reasonable time will depend upon the particular circumstances of each case. No hard and fast rule can be laid down in respect of such a matter. It is also possible that the volume or pressure of work in the hands of the particular officer concerned, may be such as not to enable such officer to take action on the application for registration that is filed by a particular individual, as soon as the application is made. So having regard to these facts it cannot be said that the Commercial Tax Officer was guilty of any unreasonable delay in granting the certificate of registration in respect of the application which was filed by the petitioner. As I have pointed out already the certificate of registration was issued on the 17th of February, 1953, that is, in less than two months from the date when a regular application for registration was put on the file of the Sales Tax Department. In the circumstances of this case, therefore, it cannot be said that the Sales Tax Authorities were not justified in issuing a notice under the provisions of Section 11 (2) of the Act or in making an order of assessment under the same section. It may be that the Sales Tax Officer could have issued the registration certificate a fortnight or a month prior to the date when the certificate was actually issued in this case. It appears however from paragraph 7 of the counter-affidavit that as proper enquiries according to law had to be made, the registration certificate could not be issued before the 17th of February, 1953.

4. Mr. Majumdar has argued that as the petitioner did not appeal under Section 20 of the Sales Tax Act and moved this Court under Article 226 of the Constitution after the remedy by way of appeal became barred by lapse of time, the discretionary relief under Article 226 of the Constitution should not be granted to the petitioner. Reliance is placed on a decision of Sinha J. reported in Promode Lal Maitra v. Additional District Magistrate, 24-Parganas, : AIR1957Cal164 . It may be noted however that although the petitioner did not file any appeal, an application was made by the petitioner for review of the order as provided by Section 20 (4) of the Act. This was a remedy which was open to the petitioner to take. The Assistant Commissioner however did not entertain this application for review but asked the petitioner to prefer an appeal against the order to the Commissioner. This petition for review was filed on the 24th April, 1954 and was thus beyond the period of limitation of 30 days which is prescribed as the period of limitation for such application for review under Rule 80 of the Sales Tax Rules. There is of course a proviso to Rule 80 under which it is open to the applicant for review, to satisfy the officer concerned that the applicant had sufficient cause for not presenting the application within the prescribed period. It appears however that the Assistant Commissioner did not throw out the application on the ground that the application was barred by limitation. He did not apply his mind to this aspect of the matter at all but declined to entertain the application and advised the petitioner to appeal to the Commissioner against his order. I do not therefore think that the conduct of the petitioner in the present case has been such as to disentitle the petitioner to any relief under Article 226 of the Constitution.

5. It is also to be noted that the petitioner's gross turnover had exceeded the taxable quantum about two months prior to 12th of September. 1952 and so the petitioner became liable to pay the tax under the provisions of Section 4 (2) of the Act. So there cannot be any question that the Sales Tax Authorities had jurisdiction to assess the petitioner. Section 11 is a procedural or machinery section as it is called, laying down the manner in which Sales Tax Authorities should proceed to make assessment of Sales Tax in respect of business of dealers. Section 11 (1) deals with cases of assessment of taxes due from registered dealers and Section 11 (2) deals with the procedure to be adopted in case of assessment of tax from unregistered dealers who have failed to get themselves registered under the Act. So even it it is held that the Assistant Commissioner in the present case was not justified in proceeding under Section 11 (2) as the petitioner had not failed to get himself registered within the meaning of those words as used in Section 11 (2) in respect off the entire period under assessment, action of the Assistant Commissioner can be at the most an Irregularity in the procedure but it would not be a case of want of or excess of jurisdiction. The Authorities had jurisdiction to make assessment In respect of business of the petitioner as soon as the petitioner's turnover exceeded the taxable quantum according to the provisions of Section 4 (2) of the Act. So I do not see why after the petitioner was brought on the register he could not be proceeded against under Section 11 (1) of the Act in respect of the period in question, though anterior to the date of registration. It is however not necessary for the purpose of this case to decide definitely whether the petitioner's case would come under Section 11 (1) of the Act, the petitioner having been registered on the 17th February, 1953 and the notice that was issued in Form No. 6 having been issued thereafter in March, 1953. If Section 11 (1) is applicable to the petitioner's case then unless the petitioner could show that the petitioner had suffered any injustice by reason of an irregularity in the procedure which was adopted by the Assistant Commissioner in making assessment under Section 11 (2) of the Act this Court would not have interfered under Article 226 of the Constitution. But as I have pointed out already, in my opinion, the case of the petitioner comes under Section 11 (2) of the Act, and so this question need not be considered any further.

6. In my view, this petition should fail.The Rule is accordingly discharged. There willbe no order as to costs.


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