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Sisir Soap Works Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberC.R. No. 67 (W) of 1971
Judge
Reported inAIR1973Cal542
ActsWest Bengal Public Demands Recovery Act, 1913 - Section 3(3); ;Bengal Finance (Sales Tax) Act, 1941 - Section 11(4); ;West Bengal Sales Tax Rules, 1954 - Rules 2, 56 and 57
AppellantSisir Soap Works
RespondentCommercial Tax Officer and ors.
Appellant AdvocateBindu Bhusan Chakraborty, Adv.
Respondent AdvocateS.N. Dutt, Adv.
Excerpt:
- .....tax officer has not applied to the collector for the recovery of the tax as an arrear of land revenue. according to him the application having been made to the certificate officer, barrackpore, the entire proceedings were illegal and invalid.3. in order to examine the validity of this contention it is necessary to record that both the parties accepted the position that in the present case the respondent no. 1, commercial tax officer applied to the certificate officer, barrackpore for the realisation of the demand as an arrear of land revenue. this will be apparent from paragraph 3 of the petition and paragraph 4 of the affidavit of sri sunil kumar sen filed on behalf of respondent nos. 1 and 2. it is also an admitted position that the assessment has been made under the act and.....
Judgment:
ORDER

Debiprosad Pal, J.

1. The petitioner is a partnership firm consisting of two partners and claims to be a manufacturer exclusively of soap. The petitioner was assessed under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act) in respect of the period from 1-1-1954 to 30-11-1954. The sales tax on the basis of the said assessment remaining unpaid was sought to be recovered as an arrear of land revenue. It is alleged that the respondent No. 1, the Commercial Tax Officer. 24 Parganas-in-Charge applied to the Certificate Office, Barrackpore, in June, 1957 for the realisation of the said demand. A certificate under Sections 4 and 6 of the Public Demands Recovery Act (hereinafter referred as the P. D. R. Act) was filed in the office of the Certificate Officer, Barrackpore. The name and address of the certificate holder was shown in the said certificate as Government of West Bengal. The petitioner deposited the certificated amount in Court on protest. The Certificate Officer further directed to pay interest from the date of the making of the certificate till the realisation of the demand. The petitioner objected to the payment of such interest and contended inter alia that the certificate was invalid. The petitioner's objection was overruled by the Certificate Officer, Barrackpore and thereafter an appeal was preferred under Section 51 of the P. D. R. Act. The Additional District Magistrate, 24-Parganas (north), Baraset held inter alia that in view of the Finance Department Notification which made soap taxable from 1st December, 1954 under West Bengal Sales Tax Act, 1954, and in view of Section 25 of the West Bengal Sales Tax Act, 1954 all recovery proceedings relating to luxation of soap should have been taken up under the West Bengal Sales Tax Act, 1954 and not under the Act. The Additional District Magistrate, 24-Parganas further held that the application for the present certificate should have been made to the District Collector as denoted in West Bengal Sales Tax Rules, 1954 read with the Revenue Recovery Act, 1890 and not to Sub-divisional Officer, Barrackpore who was a Certificate Officer as such. Proceeding on that view the recovery proceeding was declared by him to be void. As the appeal was connected with the payment of present interest, the order of the Certificate Officer regarding payment of interest was set aside. Thereafter the Commissioner of Presidency Division, West Bengal, on a revision under Section 53 of the P. D. R. Act set aside the finding of the Additional District Magistrate declaring the certificate to be void and directed the Certificate Officer lo proceed in accordance with law. On a revisional applica-tion moved by the petitioner the Additional Member, Board of Revenue, West Bengal, affirmed the order of the Revisional Commissioner and rejected the petition. Aggrieved by the said order of the Additional Member, Board of Revenue, the petitioner has moved this application and obtained a rule nisi.

2. The main contention urged by the learned Counsel on behalf of the petitioner is that the Commercial Tax Officer has not applied to the Collector for the recovery of the tax as an arrear of land revenue. According to him the application having been made to the Certificate Officer, Barrackpore, the entire proceedings were illegal and invalid.

3. In order to examine the validity of this contention it is necessary to record that both the parties accepted the position that in the present case the respondent No. 1, Commercial Tax Officer applied to the Certificate Officer, Barrackpore for the realisation of the demand as an arrear of land revenue. This will be apparent from paragraph 3 of the petition and paragraph 4 of the affidavit of Sri Sunil Kumar Sen filed on behalf of respondent Nos. 1 and 2. It is also an admitted position that the assessment has been made under the Act and not the West Bengal Sales Tax Act, 1954. In the course of the hearing, the learned Counsel for the petitioner did not urge the contention that the recovery proceeding should have been pursued under the West Bengal Sales Tax Act, 1954, although such a contention appears to have been raised before the authorities below. On the admitted fact as it stands now the short point which falls for my consideration is whether certificate proceedings arc invalid in view of the fact that the respondent No. 1 applied to the Certificate Officer. Barrackpore for the realisation of the demand as an arrear of land revenue. Under Section 11(3) of the Act any amount of tax which is assessed has to be paid within such date, as may be specified in the notice issued by the Commercial Tax Officer. Such date however should not be less than 30 days from the date of the service of the said notice. If any amount of tax remained unpaid after the expiry of the date specified in the said notice, such amount is recoverable under Section 11 (4) of the Act as an arrear of land revenue as if it were payable to the Collector. Under Rule 56 which has been framed under the Act, if a dealer has defaulted in the payment of any sum assessed under the Act within the time specified in the notice of demand, the assessing authority shall apply to the Collector of the area in which the dealer's office or head-office is located for the recovery of the whole amount of tax remaining unpaid as an arrear of land revenue. Under Rule 57 the Collector after taking necessary action shall report to the assessment authority what amount, if any, has been recovered and the date on which the recovery has been made. 'Collector' isdefined under Rule 2 (e) of the Rules to mean in respect of any particular area the officer exercising in such area the functions of a Collector under Act I of 1890.

The Collector is defined under Section 2(2) of the Revenue Recovery Act, 1890 (Act 1 of 1890) to mean the Chief Officer-in-Charge of the land revenue administration of a district. By the Revenue Recovery (Amendment) Act, 1966 (West Bengal Act XVII of 1966) the Revenue Recovery Act, 1890 in its application to West Bengal has been amended for certain purposes. Section 3-A has been introduced in the Revenue Recovery Ad by the said Amendment Act. Under the new Section 3-A when any certificate is received under the Revenue Recovery Act by the Collector in a district, any Certificate Officer in the District may exercise all the powers and perform all the duties and functions of such Collector under the said Act in respect of such certificate. An explanation to Section 3-A of the Revenue Recovery Act provides that the 'Certificate Officer' appearing in that section has the same meaning as in the P.D.R. Act. It is not necessary to consider the implication of the introduction of Section 3-A of the Revenue Recovery Act for the purpose of the present application, as the said amendment was introduced in 1966 and was not intended to be retrospective in operation. Apart from this the amendment does not in any way affect the definition of Collector given in Section 2(2) of the Revenue Recovery Act. The amendment merely authorises a Certificate Officer in the District to exercise all the powers and perform all the duties and functions of such Collector if the certificate has been received under the Act by the Collector of a District. The amendment does not in my view authorise the Certificate Officer to receive the certificate. The certificate is to be received by Collector of the District. After such a certificate has been received by the Collector any Certificate Officer by reason of the amendment, is authorised to exercise all the powers of such Collector in respect of the certificate.

Under the Act and Rule 56 of the Rules the Commercial Tax Officer being the assessing authority can apply to the Collector of the area in which the dealer's office is located for the recovery of the unpaid amount of tax as an arrear of land revenue. The Collector according to the definition referred to above docs not. in my view, include a Sub-divisional Officer or a Certificate Officer under the P.D.R. Act. A Collector under Rule 2 (e) of the Rules read with Section 2(2) of the Revenue Recovery Act. 1890 means only the Chief Officer-in-Charge of the land revenue administration of a District. Therefore the respondent No. 1 has no competence and jurisdiction to apply to a Certificate Officer under the P.D.R. Act for recovery of the unpaid tax as an arrear ofland revenue. It is the District Collector who is the Chief Officer-ill-charge of the land revenue administration of the District and he is the appropriate person to whom the application is to be made under Rule 56 by the Commercial Tax Officer for the recovery of the unpaid tax as an arrear of land revenue. It is true that under Section 3(3) of the P.D.R. Act a Certificate Officer means a Collector, a Sub-divisional Officer and any officer appointed by a Collector with the sanction of the Commissioner, to perform the functions of a Certificate Officer under the said Act. Sub-section (a) of Section 3 of the same Act defines a Collector as the Chief Officer-in-Charge of the revenue administration of a district and includes an additional District Magistrate appointed under Section 10(2) of the Code of Criminal Procedure even under the P.D.R. Act. Although a Certificate Officer may include a Collector, but every certificate Officer is not necessarily the Collector. In other words the definition of Collector under the P.D.R. Act does not include every Certificate Officer performing the functions of a Certificate Officer under the Act. Even under the P.D.R. Act the Certificate Officer, Barrackpore does not satisfy the definition of Collector. In my view until the Commercial Tax Officer has applied to the Collector for recovery of the amount as an arrear of land revenue, the application of the P.D.R. Act does not arise. The P.D.R. Act will apply only when such an application has been received by the Collector in accordance with law and a public demand under P.D.R. Act is sought to be recovered. The application by the Commercial Tax Officer to the Collector for the recovery of the unpaid amount of tax is made not under the P.D.R. Act and hence the rule prevailing for such application is to be construed in accordance with the definition of Collector appearing either in the Act or in the Rules; found thereunder.

The position has been now made clear by the amendment of Rule 56 and the introduction of Rule S6-A. Under the amended Rule 56 which was introduced by the Finance Department Notification No. 2310-FT dated 12th August, 1961 the Commercial Tax Officer now shall apply to the Certificate Officer within whose jurisdiction the business of the dealer is located for recovery of the unpaid amount of tax as an arrear of land revenue payable to the Collector. Consequently in Rule 56-A which was inserted on 8th June, 1957 the word 'Collector' wherever appearing in the said rule had been now substituted by the words 'Certificate Officer'. Rule 57 also consequently has been amended to replace the Collector by the words 'Certificate Officer'. Certificate Officer now under Rule 2 (e) which was introduced on 1st April, 1959 has the same meaning as in Sub-section (3) of Section 3 of the P.D.R. Act. It is not necessary however for me toexamine the validity of the recovery proceeding in the light of amended rule in view of the admitted position that this amended rule, not being retrospective in operation will not apply to the present certificate proceeding. In fact Counsel for both the parties admitted that at the time when the Commercial Tax Officer applied to the Certificate Officer under Rule 56, the unamended rule will apply.

4. Learned Counsel for the respondents relied upon the first proviso to Section 11 (4) of the Act in support of the validity of the requisition made by the respondent No. 1. Under the said proviso, where any proceedings for the recovery as an arrear of land revenue of any tax remaining unpaid have been taken as if it were payable to a person other than the Collector, such proceeding shall be deemed to have been validly taken and if they are still pending may be validly so continued. Under the P.D.R. Act, any money declared by an enactment to be recoverable as an arrear of land revenue is a public demand within the meaning of Rule 2 of Schedule 1 to the said Act. Such a public demand can be recovered by the machinery provided under the P.D.R. Act. A certificate is to be filed under Section 4 of the P.D.R. Act when the public demand payable to the Collector is due. When any public demand is payable to any person other than the Collector is due, a written requisition may be sent in the prescribed form to the Certificate Officer and on receipt of such requisition, the certificate is to be filed under Section 6 of the P.D.R. Act.

The proviso to Section 11 (4) of the Act gives a quietus to all such contentions which might be raised as to the validity of the proceeding for recovery when proceedings for the recovery of the tax remaining unpaid have been taken as if it were payable to a person other than the Collector. In my view the said proviso is not concerned with the question as to the authority to whom the Commercial Tax Officer has to apply for the recovery of the amount of unpaid tax, That question is dealt with by Rule 56 of the Rules. If the said proviso to Section 11 (4) of the Act deals with the question as to the authority to whom Commercial Tax Officer has to apply for recovery. Rule 56 would have been redundant. In my view the proviso to Section 11 (4) of the Act and Rule 56 of the Rules do not deal with and cover the same question. Rule 56 deals with the procedure to be followed in making requisition to the appropriate authority for recovery of the tax as an arrear of land revenue. The proviso to Section 11 (4) validates proceedings for recovery even when such proceedings have been taken on the footing that the tax is payable to a person other than the Collector. As I have already held that Rule 56 before its amendment governs the present case and the requisition having not beenmade in compliance with the said rule the requisition itself is invalid and without jurisdiction. Certificate proceedings on the basis of the said requisition are also invalid and without jurisdiction.

5. In the result this application succeeds. The order of the Additional Member, Board of Revenue, West Bengal, dated 22-7-1970 in case No. 42 of 1968 and also the certificate filed in the office of the Certificate Officer, Barrackpore on 28th June, 1957 being annexure 'A' to the petition are also quashed by a writ of certiorari. There will also be a writ in the nature of mandamus commanding the respondents to forbear from giving any effect to the said certificate and also to the said order of the Additional Member. Board of Revenue. I however make it clear that the respondents will be at liberty to proceed in accordance with law. The rule is made absolute to the extent indicated above. There will be no order as to costs.


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