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Kedarnath Jute Manufacturing Co. Ltd. Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case Number Appeal No. 81 of 1959
Judge
Reported in[1962]13STC138(Cal)
AppellantKedarnath Jute Manufacturing Co. Ltd.
RespondentCommercial Tax Officer and ors.
Appellant Advocate S. Banerji, ;Somendra C. Bose and ; Tarun K. Base, Advs.
Respondent Advocate The Adv.-General and ; K.C. Mukherjee, Adv.
DispositionAppeal dismissed
Cases ReferredMarsland v. Taggart
Excerpt:
- h.k. bose, c.j.1. this is an appeal from an order of sinha, j., discharging a rule issued in a writ application under article 226 of the constitution.2. the appellant is a public limited company and is a registered dealer under bengal finance (sales tax) act, 1941. in respect of accounting year ending 31st december, 1954, the appellant submitted a return to the commercial tax officer on 21st october, 1955, and in respect of the accounting year ending 31st december, 1955, the appellant submitted its return to the commercial tax officer on 27th february, 1956. in the return filed on 21st october, 1955, in respect of the year ending 31st december, 1954, the gross turnover was shown to be rs. 70,99,928-10-0 and an exemption was claimed under two headings : (i) rs. 1,33,730-7-6 under section.....
Judgment:

H.K. Bose, C.J.

1. This is an appeal from an order of Sinha, J., discharging a rule issued in a writ application under Article 226 of the Constitution.

2. The appellant is a public limited company and is a registered dealer under Bengal Finance (Sales Tax) Act, 1941. In respect of accounting year ending 31st December, 1954, the appellant submitted a return to the Commercial Tax Officer on 21st October, 1955, and in respect of the accounting year ending 31st December, 1955, the appellant submitted its return to the Commercial Tax Officer on 27th February, 1956. In the return filed on 21st October, 1955, in respect of the year ending 31st December, 1954, the gross turnover was shown to be Rs. 70,99,928-10-0 and an exemption was claimed under two headings : (i) Rs. 1,33,730-7-6 under Section 5(2)(a)(i) of the Bengal Finance (Sales Tax) Act and (2) Rs. 69,65,979-9-6 under Section 5(2)(a)(ii) of the Act and the taxable turnover was shown as Rs. 218-9-0 only for which a tax of Rs. 9-12-6 was paid. This sum of Rs. 9-12-6 was deposited in the treasury on the 2nd November, 1955. It appears that the Commercial Tax Officer by a notice dated the 22nd April, 1955, had fixed 4th August, 1955, as the date of the hearing of the appellant's assessment case for the year ending 31st December, 1954, and by this notice the appellant company was called upon to produce, amongst other documents, 'written declarations of purchasing registered dealers where sales are claimed exempt from tax for having been made to such registered dealers' (Item 8). The date of hearing of the other assessment case for the year ending 31st December, 1955, was fixed as the 21st January, 1957, by a notice dated the 4th September, 1956. In this appeal we are concerned with the assessment case for the year ending 31st December, 1954.

3. The case of the appellant company is that after receiving the notices of the dates fixed for hearing of the assessment cases, the appellant in the 2nd week of January, 1957, started sorting its books and documents and discovered that 147 declaration forms received by the appellant from various registered dealers in respect of transactions had with them were missing and that the loss had occurred in the course of shifting the appellant's office in June, 1955. from 34, Jatindra Mohan Avenue to its present office at 13, Syed Salley Lane. The appellant thereafter made attempts to procure confirmatory letters and duplicate declaration forms from the purchasing dealers and succeeded in obtaining some duplicate forms. The Commercial Tax Officer in making the assessment has granted exemption to the extent of the amount that is covered by the duplicate declaration forms produced by the appellant, but in respect of the amount which is not covered by any declaration forms he had refused the exemption asked for. The assessment order for the accounting year ending 31st December, 1954, was made on 21/23rd November, 1957. It appears that prior to the making of the assessment order the appellant on 8th August, 1957, had made an application under Section 21A of the Bengal Finance (Sales Tax) Act, 1941, for an order summoning certain witnesses and for production of certain documents. Relevant portions of this application are set out below :-

In respect of our claims for exemption under Section 5(2)(a)(ii) of the Act certain declaration forms obtained by us from certain purchasing dealers are lost. Names and addresses of the purchasing dealers and particulars of the declarations are given in Annexure 'A' hereto. * * As we are not in possession of the declaration forms and as no duplicates are forthcoming from all the dealers concerned, we pray that you would be pleased to summon the parties under Section 21A of the Bengal Finance (Sales Tax) Act, 1941, to appear before your goodself on a date that may suit your goodself and to produce the following books and documents so that sales made by us to these parties could be fully substantiated and proved entitling us to claim deduction under Section 5(2)(a)(ii) of the Act.

1. Counterfoils of the declaration forms issued to us (Form XXIV).

2. Register of declarations in Form No. XXIII.

3. Ledger, cash book, journal and bank pass book for the relevant purchases made by the said dealers.

Bengal Form No. 3246 for summons to witnesses in quadruplicate for each of the dealers duly filled in is annexed hereto for service on the respective parties. Costs for issue of the summons and attendance of witnesses may kindly be intimated to us and the same will immediately be deposited.

Yours faithfully,

for and on behalf of

The Kedarnath Jute .,

Babulall & Co., Private Ltd.

Sd/-K. D. Jhunjhunwala

Director

Managing Agents'.

4. Below this application, the names of the witnesses to be summoned are set out.

5. It appears however that no order was made by the taxing authority on this application under Section 21A of the Act. It is also to be noted that although by notice dated 22nd April, 1955, the Commercial Tax Officer had called upon the appellant to produce at the hearing the declaration forms and other documents mentioned in the said notice, the appellant company did not send any intimation of the alleged loss of the declaration forms until about the 3rd May, 1957. After the assessment order was made on 21/23rd November, 1957, a notice of demand dated the 26th November, 1957. was served on the appellant company calling upon it to pay a sum of Rs. 1,49,776-4-6 as additional tax payable in respect of the sum of Rs. 22,46,006-6-0 for which no exemption was allowed. On 3rd February, 1958, the appellant moved this Court under Article 226 of the Constitution and a rule nisi was issued on that date by P. B. Mukharji, J. But at the final hearing the rule was discharged by Sinha, J. The order discharging the rule was made on 19th March, 1959. It is against this order that the present appeal has been preferred.

6. The principal point which arises for determination in this case is whether the dealer who claims the benefit of the exemption under Section 5(2)(a)(ii) has got to produce the original declaration forms received from the purchasing dealer or production of other evidence to substantiate the transaction in respect of which exemption is claimed is enough where the original declarations are lost or mislaid. Section 5(2)(a)(ii) is as follows :-

(2) In this Act the expression 'taxable turnover' means that part of a dealer's gross turnover during any period which remains after deducting therefrom-

(a) his turnover during that period on-

(ii) sales to a registered dealer of goods of the class or classes specified in the certificate of registration of such dealer, as being intended for resale by him, or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract; and of containers or other materials for the packing of goods of the class or classes so specified:Provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are sold and containing prescribed particulars on a prescribed form obtainable from the prescribed authority is furnished in the prescribed manner by the dealer who sells the goods.

7. The proviso in Section 5 (2) (a) (ii) appears to have been introduced in the Act by Section 4 (a) of the West Bengal Amendment Act XLVIII of 1950 and certain modifications were also made in this Sub-clause (ii) by this Amending Act and it appears that this sub-clause together with the proviso was put into force by a Government notification from 17th January, 1952.

8. There is a rule in the Bengal Sales Tax Rules which has been framed under Section 26 of the Bengal Finance (Sales Tax) Act which is also relevant for the purpose of determining the question raised. The rule is Rule 27A and the material portion is set out below:-

(1) A dealer who wishes to deduct from his gross turnover the amount in respect of a sale on the ground that he is entitled to make such deduction under the provisions of Sub-clause (ii) of Clause (a) of Sub-section (2) of Section 5 shall, on demand, produce in respect of such a sale,-

(a) * * * *(b) in any other case, the copy of the relevant cash memo, or bill, according as the sale is a cash sale or a sale on credit, and a declaration in writing signed by the purchasing dealer or by such other person as may be authorised in this behalf by such dealer that the goods in question are- * * ' * *

(2) A dealer wishing to make a deduction under Clause (b) of Sub-rule (1) shall not accept, nor shall the purchasing dealer give, a declaration mentioned in the said clause except in a form obtainable by the purchasing dealer from the appropriate Commercial Tax Officer on application.

(3) Every registered dealer shall maintain in a register in Form XXIII true account of every declaration form received from the Commercial Tax Officer and, if any declaration form is lost or destroyed or stolen, he shall report the same to the appropriate Commercial Tax Officer immediately and shall make appropriate entries in the remarks column of the register in Form XXIII.

(4) No registered dealer to whom a declaration form is issued by the Commercial Tax Officer shall transfer the same to another person except for the purpose of Sub-rule (2).

9. Now the proviso in Section 5(2) (a) (ii) does not deal with the contingency of the original declaration forms being lost or destroyed. It is absolute and imperative in its terms, and states that in order that a dealer can successfully claim deduction or exemption, the original declaration forms have to be produced before the authority concerned. The words of the proviso are plain and there is no ambiguity about it. If the Legislature has not thought of a particular aspect of the matter, it is not for the Court to make up the deficiencies of the Legislature.

10. The learned counsel for the appellant has argued that an equitable and liberal construction should be put upon the proviso so as to relieve the hardship that may be caused by putting a strict construction upon its terms. The answer to this contention is furnished by certain very pertinent observations made by the English Court of Appeal in the case of London Investment and Mortgage Co. Ltd. v. Inland Revenue Commissioners [1957] 1 All E.R. 277 at 289 which were to the following effect:-

Finally although I have every sympathy with the gallant endeavour which the Special Commissioners made to put the matter right from an equitable point of view, there is no justification or warrant in introducing words into a taxing statute which are not there, that being matter for the Legislature and not for this Court which can only take the language as it finds it and put such interpretation as it thinks right on that.

11. It was further observed in this case that to make an attempt to put an equitable construction by introducing words not there will be judicial legislation. 'Legislation to gild the pill is a matter for Parliament.' (pages 280-281).

12. It appears that the question of loss or destruction of the declaration forms is dealt with in Clause (3) of Rule 27A of the Sales Tax Rules to which I have already referred and in the letter of the Commissioner dated the 12th July, 1955, to the Bharat Chamber of Commerce and referred to in paragraph 14 of the writ petition. But it is clear from Clause (3) of Rule 2'/A that it deals with cases of loss prior to the actual issue of the declaration forms by a registered dealer and the letter of the Commissioner has reference only to cases of loss during transit of the declaration forms from the purchasing dealer to the selling dealer. So though express provision is made for these specific cases of loss, no provision is made to meet the contingency of loss of original declaration forms from the custody of the selling dealer, for the purpose of granting exemption. But the Court cannot sully this omission however harsh and unreasonable the result may be. It is possible that in order to prevent objectionable methods being adopted for tax evasion the Legislature thought fit to enact the proviso in Section 5(2) (a) (ii) and Clause (b) of Rule 27A (1) in their present form. But the Court is not concerned with the wisdom or policy of the Legislature but its function is to interpret and give effect to the words of the statute.

13. It will not be out of place to refer at this stage to certain observations of the English Court of Appeal in the case of Howard De Walden v. Inland Revenue Commissioners [1942] 1 K.B. 389. Lord Greene, M.R., at page 397 in construing Section 18 of the English Finance Act, 1936, observed as follows:-

The section is a penal one, and its consequences, whatever they may be, are intended to be an effective deterrent which will put a stop to practices which the Legislature considers to be against the public interest. For years a battle of manoeuvre has been waged between the Legislature and those who are minded to throw the burden of taxation off their own shoulders on to those of their fellow subjects. In that battle the Legislature has often been worsted by the skill, determination and resourcefulness of its opponents of whom the present appellant has not been the least successful. It would not shock us in the least to find that the Legislature has determined to put an end to the struggle by imposing the severest of penalties. It scarcely lies in the mouth of the taxpayer who plays with fire to complain of burnt fingers.

14. So it is likely that in the public interest and with the object, of preventing fraudulent evasion of tax such a stringent provision requiring production of the original declaration forms from the custody of the selling dealer was enacted. It was argued that the expression 'on demand' in Rule 27A indicates that it is optional with the taxing authorities to demand or not to demand production of declaration forms and so relaxation of the requirements of the proviso to Section 5(2)(a)(ii) of the Act or of Clause (b) of Sub-rule (1) of Rule 27 A is permissible in case of loss of declaration forms. I do not however think that on the wordings of the proviso and of the relevant rule as they now stand, it is permissible for the taxing authority to dispense with the production of the declaration forms in the matter of granting deduction or exemption. The expression 'on demand' has perhaps been introduced to fix the point of time when the declaration forms have to be produced.

15. In the application under Section 21A of the Bengal Finance (Sales Tax) Act, the appellant had admitted that the declaration forms were lost. The authorities concerned had therefore reasons to think that it was no use calling for production of other kinds of evidence which the appellant wanted to produce before them in order to get exemption. That this is what prompted the taxing authorities in not taking any action on the application under Section 2-1A is made clear in paragraphs 17, 23 and 30 of the affidavit of Bonornali Prosad Saha affirmed on the 7th March, 1958. So by not disposing of the application under Section 21A in so far as it asked for summoning of witnesses and compelling production of documents referred to therein the authorities cannot be said to have acted in contravention of the statute or of any principle of natural justice. Section 21A vests power in the taxing authority to summon witnesses and to enforce production of documents in the manner laid down in the Code of Civil Procedure, but there is no absolute obligation cast upon the taxing authority to summon witnesses or to. call for production of documents simply because a party asks for it. The taxing authority has discretion to summon or not to summon as it thinks fit, but if the discretion is exercised arbitrarily and the party concerned is prejudiced as a result thereof, the Court will certainly grant relief to the party in appropriate cases. But we do not think that in the present case, there was any prejudice caused to the appellant by the taxing authorities not. dealing with or not making any order on the application, because the declaration forms either original or duplicate (which is equivalent to original) were not forthcoming and both under the proviso to Section 5(2)(a)(ii) and under Rule 27A(1)(b) the production of the original declaration forms was indispensable in order to entitle the appellant to claim exemption.

16. It was argued that if the taxing authorities had called for the production of the counterfoils of the declaration forms from the purchasing dealers concerned, these counterfoils being in the nature of counterparts and as such being primary evidence of the original declaration forms would have been sufficient to meet the requirement of the law and would have enabled the appellant to get the exemption. I fail to see how the counterfoils could be regarded as counterparts within the meaning of Section 62 of the Indian Evidence Act, which provides that 'where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against parties executing it'. It is pointed out in authoritative text books on evidence that when each of the instruments is duly signed by the party to be found by it and each delivers to the other, the documents are termed counterparts and each is evidence against the party executing it and those in privity with the executing party. Thus a pattah and a kabuliat are treated as counterparts to each other. The counterparts dealt with in Section 62 have no reference to documents like counterfoils of declaration forms which are preserved by registered dealers. Even a cursory glance at the counterfoils shows that there is considerable difference between the declaration forms as such and the counterfoils. The counterfoil is not an exact replica of the declaration form. It is not signed by the registered dealer nor does it contain all the particulars of the declaration forms. So production of the counterfoils would not have served the purpose of the declaration forms.

17. Our attention has been drawn to three affidavits of Biseswar Lal Chharia, Asaram Bansal and Ramesh Pal Jhunjhunwalla all affirmed on the 2nd September, 1958, for showing that 3 purchasing dealers were willing to issue duplicate declaration forms, but the Commercial Tax Officer by his letter dated nth April, 1957, written to one of these dealers asked the dealer concerned not to issue the duplicate declaration forms until the dealer heard from the Commercial Tax Officer. The material portion of the letter is as follows :-

To

Messrs Srikishen Beriwalla & Sons Private Ltd.,

21A, Canning Street,

Calcutta.

Sub : Loss of declaration forms.

I am to request you to ascertain from M/s. The Kedernath Jute ., of 13, Syed Salley Lane, Calcutta, the circumstance under which they lost the forms for which they are now wanting duplicates. The duplicate may not be issued till you hear from the undersigned.

This is most urgent.

Sd. Illegible

Commercial Tax Officer,

Lyons Range Charge,

11-4-57.

18. A reference to paragraph 7 of the affidavits affirmed on 2nd September, 1958, by the three persons referred to above, shows that the excuse put forward by these dealers for not issuing duplicate declaration forms was as follows :-

I say that the said firm was at all material times and still now is ready and willing to issue duplicate sales tax declaration certificates to the petitioner in respect of the said transaction mentioned in the said annexure, provided sanction and permission is received from the appropriate Sales Tax Authorities to adopt the said course. This is necessary because if we issue a duplicate sales tax declaration certificate without such consent, permission and sanction of the appropriate Sales Tax Authorities we shall not receive the sales tax declaration certificates in replacement of those to be issued by us as duplicate sales tax declaration certificates and as a result thereof we shall have to suffer in business.

19. It is also pointed out by the learned counsel for the appellant with reference to certain unreported decisions of Sinha, J., of this Court, that. the taxing authorities are bound to issue declaration forms to registered dealers when asked for and if the taxing authorities have any reasons to doubt the bona fides of the demand for the issue of the declaration forms in any particular case, they can call upon the party to furnish security as a condition for the proper custody and use of the declaration forms. If the decisions of Sinha, J., against which appeals are said to be pending, are correct then there was no necessity for the purchasing dealers to seek any permission of the Commercial Tax Officer before issuing the duplicate declaration forms nor had the Commercial Tax Officer any power to withhold issue of declaration forms. It is thus clear that for some reason or other some of the registered dealers were not inclined to issue the duplicate declaration forms and so, on a false pretext or under a lame excuse, they did not accede to the request of the appellant to issue duplicate declaration forms. It is possible that as the Commercial Tax Officer entertained some suspicion with regard to the alleged loss of the original declaration forms, he had asked the parties seeking permission to issue duplicate forms, to stay their hands until the dealers heard from the Commercial Tax Officer. But it is clear that no permission was in fact necessary and some of the registered dealers had in fact issued duplicate declaration forms without seeking the previous permission of the taxing authorities. If these other dealers were really minded to help the appellant and to issue duplicate declaration forms in their favour they could have done so ignoring the direction of the Commercial Tax Officer as contained in the letter of the nth April, 1957-

20. It was also argued that the appellant's fundamental right under Article I9(1)(g) of the Constitution is infringed by the proviso in Section 5(2)(a)(ii) of the Act and Clause (b) of Rule 27A (i) inasmuch as these provisions constitute an unreasonable restriction on the appellant's right to carry on business. It is submitted that the stringent requirement of this proviso has the effect of putting the trader or merchant in a helpless position in case of accidental loss of the original declaration forms and deprives the trader of the opportunity of getting exemption and makes him liable for payment of taxes, which, if heavy, may altogether ruin the business. But as has been pointed out already the object of such stringent provision in the taxing statute is, as is well-known, to prevent tax evasion. It is enacted for public interest and for the benefit of the public exchequer. So, because the provision may cause hardship in certain circumstances as for example where the taxpayer is careless or is the victim of some misfortune (as for example where the documents are burnt by fire or otherwise destroyed) does not make the provisions an unreasonable restriction so as to infringe Article 19(i)(g) of the Constitution. Moreover, we are here concerned really with provisions made in exercise of power of taxation. It is well-known that fundamental rights are not immune from taxation and taxation cannot be regarded as abridgement of fundamental rigts (Atma Ram Budhia v. State of Bihar A.I.R. 1952 Pat. 359, at 366 and other cases). We, therefore, hold that there is no substance in this contention of the appellant that the proviso in Section 5(2)(a)(ii) of the Act or Clause (b) of Rule 27A (1) infringes Article 19(1)(g) of the Constitution.

21. The learned trial Judge has held that the appellant cannot take advantage of Article 19 of the Constitution inasmuch as it is not a citizen within the meaning of that article. The learned counsel for the appellant has challenged this finding of the learned trial Judge and has drawn our attention to a subsequent decision of the learned trial Judge reported in T.D. Kumar and Bros. Private Ltd. v. Iron and Steel Controller A.I.R. 1961 Cal. 258 where he has expressed a different view on the point after reviewing some cases of the Supreme Court and of other Courts. We do not, however, propose to express any opinion on this point as it is not absolutely necessary for the purpose of disposal of this case to do so.

22. The learned counsel for the appellant has also contended that even if the proviso in Section 5(2)(a)(ii) and Clause (b) of Rule 27A (1) are valid provisions and are absolute in their terms, the appellant was excused from compliance with these provisions as such compliance was rendered impossible by circumstances over which the appellant had no control, namely, the loss of the original declaration forms. Reliance is placed in support of this argument upon a passage in Craies on Statute Law, 5th Ed., at page 248, where the case of Campbell v. Earl of Dalhousie is dealt with. The proposition which Craies refers to in the paragraph is as follows:-

Thus in accordance with the maxim of law lex non cogilad, impossibilia, if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God or the King's enemies, these circumstances will be taken as a valid excuse.

23. It was as an illustration of this proposition that the author referred to the case of Campbell v. Earl of Dalhousie. The report containing Campbell's ' case has not been placed before us, but the substance of what was decided in this case has been set out at page 248 of Craies and at page 761 of Volume 42 of the English and Empire Digest. The paragraph in the English and Empire Digest is as follows :-

The only question whether there is any impediment to the recovery of the debt for which he is constituted a creditor by reason of there being a non-compliance with this provision and if the compliance is Shown to have been rendered impossible, not by his neglect or in consequence of his own act, but by the act of God, it would be impossible, consistently with the established principles of law, to hold that he has lost-his right- through a pro visionary or directory clause which it was impossible for him to comply with.

24. As appears from page 248 of Craies on Statute Law, Section 12 of the Entail Improvement (Scotland) Act, 1770, was considered by the House of Lords in this case and the proposition was laid down in the manner I have set out above.

25. In the case before us the loss of the declaration forms has occurred due to Carelessness and some fault on the part of the appellant and not by reason of any act of God. So the principle enunciated at page 248 of Craies on Statute Law is of no assistance to the appellant.

26. On behalf of the respondents the learned Advocate-General has contended that the appellant had an alternative remedy to challenge the assessment order by appeals provided under the Bengal Finance (Sales Tax) Act and also by a reference to the High Court and so the writ petition under Article 226 of the Constitution is not maintainable. Reliance is placed on a recent decision of the Supreme Court reported in Abraham v. Income-tax Officer, Kottayam and Anr. A.I.R. 1961 S.C. 609, paragraph 3. The learned counsel for the appellant has, on the other hand, contended that alternative remedy is not an absolute bar to the maintainability of the petition. Reference is made to the cases of the Supreme Court reported in State of U.P. v. Mohammad Nooh [1958] S.C.A. 73 at pp. 84-85 and Calcutta Discount Company's case, A.I.R. 1961 S.C. 372, at p. 380. As we do not propose to rest our decision on this technical point and as the appeal must fail in view of our finding on the other points, we refrain from expressing our view on this point.

27. Our attention was drawn by counsel for the respective parties to the cases reported in Wankie Colliery Company, Limited v. Commissioners of Inland Revenue [1921] 3 K.B. 344 at p. 355 Wilkes v. Goodwin [1923] 2 K.B. 86 Mullins v. The Treasurer of the County of Surrey (1880) 5 Q.B.D. 170 Tata Iron and Steel Co., Ltd. v. S.R. Sarkar and Ors. A.I.R. 1961 S.C. 65 at p. 69 Bullion and Grain Exchange Ltd. and Ors. v. The State of Punjab A.I.R. 1961 S.C. 268, paragraph 16 and Halsbury (Hailsham Edition) Volume 31, paragraphs 593, 605, 636 and 753 ; but it is not necessary to deal with these citations in any detail.

28. In my view this appeal must fail and it is accordingly dismissed with costs. Certified for two counsel.

Mookerjee, J.

29. I agree that this appeal should be dismissed on the ground that it has no merit.

30. From the narrative of facts on which the appellant company relies it seems plain that it had failed to furnish its return of taxable turnover for the year ending 31st December, 1954. The Commercial Tax Officer,-; Beadon Street Charge, accordingly issued a notice on 22nd April, 1955, under Sections 11 and 14(1) of the Bengal Finance (Sales Tax) Act, 1941 requiring the company on 4th August, 1955, to produce or cause to be produced accounts and documents specified in the notice. Amongst the documents production of which was required, were the written declarations of purchase from registered dealers in support of claims, if any, of exemption from tax in respect of sales to such dealers. For the year ended 31st December, 1955, another notice dated 3rd September, 1956, was served by the Commercial Tax Officer, Colootola Charge, upon the appellant company. That officer was not satisfied that the return filed by the company for the year in question had been correct and complete. The company was accordingly directed to produce or cause to be produced on 21st January, 1957. the accounts and documents including written declarations of purchase of registered dealersi if-exemption from tax was claimed for sales to such dealers.

31. After a protracted correspondence with the tax authorities to which, I shall presently refer, the Commercial Tax Officer heard the company's agent on 21st November, 1957, and assessed its tax liability at. Rs. 1,49,776-4-6 for the year ended 31st December, 1954. In computing.. liability the Commercial Tax Officer disallowed claims to exemption' from tax on account of sales to registered dealers to the extent of Rs. 22,46,006-0-6 on the ground that the statutory declaration forms had not been produced in support of such sales. Another item disallowed by the officer related to a claim for exemption to the extent of Rs. 11,00,000. The ground of disallowance was that the. declaration forms produced in support of the claim belonged to a particular series which had since become obsolete and invalid. No exemption, from tax could accordingly be allowed on such invalid forms. Accordingly, a demand was made for payment of the tax. Similarly, for the period ended 31st December, 1955, the appellant company was assessed on 17th February, 1959, to tax amounting to Rs. 27,557-38 np. and a demand for payment of the amount was made in due course.

32. The case made by the appellant company was that pursuant to the notice received from the Commercial Tax Officer fixing 21st January, 1957, for the hearing of the assessment case for the year ending December, 1955, the company was put upon an enquiry and it commenced a search for the relevant declarations received from the registered dealers in respect of goods sold to them. As a result of search it transpired that about 147 declaration forms issued by the purchasing dealers had been missing. The loss of forms was attributed to the fact that the appellant company had in June, 1955, moved from 34, Jatindra Mohan Avenue to 13, Syed Salley Lane involving disarrangement and confusion amongst its books and papers. It is by no means clear, however, why the appellant company should have waited till about the middle of January, 1957, to look for the declaration forms since as long ago as April, 1955, the company's attention had been drawn by a notice issued by the Commercial Tax Officer of the relevant charge that the company had failed to submit its return for the year ended 31st December, 1954. Whatever the reason for the delayed search, it seems to be the case of the appellant company that in the third week of January, 1957, it started correspondence with the registered dealers whose declaration forms had been missing. A request was made to them to issue proper certificates bearing serial numbers of the declaration forms and the registration numbers of individual bills against which goods had been sold. In compliance with this requisition, letters containing such certificates were issued by the registered dealers concerned. But the certificates having been found unacceptable to the Sales Tax Authorities, request was made to the dealers concerned for the issue 'of duplicate declarations. Meanwhile on 1st May, 1957, information had been given to the police reporting loss of forms and on 4th May, 1957, the Commercial Tax Officer, Colootola Charge, was informed by the appellant company of the loss and a list of the forms mislaid was sent to that officer.

33. The registered dealers who had been requested to issue duplicate declarations communicated with their respective Commercial Tax Officers with a view to getting from them necessary direction or permission to issue duplicates. The appellant's case is that it was entitled to duplicates on the basis of a circular issued by the Commissioner of Commercial Taxes, West Bengal, on 12th July, 1955, to the Secretary, Bharat Cliamber of Commerce. It said that in the event of bona fide loss of statutory declaration forms in transit, it would be in order for the purchasing dealers to issue duplicate declaration forms. The issue was subject to certain conditions : first, the forms issued were to be marked 'duplicate', secondly, the loss should have occurred in transit and the loss promptly reported to the Commercial Tax Officer concerned and thirdly, appropriate entries were to be made in the register showing the issue of such duplicate forms. The appellant's complaint is that despite the existence of such circular, the purchasing dealers concerned did not issue the duplicates asked for ; and the Commercial Tax Officers though approached by the purchasing dealers for permission enabling them to issue such forms, nothing was done by the tax authorities in this regard, and in one case at least, the registered dealer was asked not to issue any duplicate until the dealer heard from the officer concerned. It is said, that in consequence of the attitude taken by the Tax Officers of the different charges to whom reference has been made by the purchasing dealers in the matter of issue of duplicates, the appellant company was wrongfully prevented from availing of duplicates to which it was entitled in accordance with past practice and sanctioned procedure. This, it is said, resulted in deprivation of very substantial exemption from tax to which the company was entitled under the law.

34. While it is true that there was a departmental circular permitting use of duplicate declarations, the issue of such forms had by no means been made unconditional. According to the circular itself the loss has to be loss in transit; the loss has to be promptly reported to the Commercial Tax Officer by the dealer who suffered the loss ; and the loss has to be bona fide in any event. In this case, there can be no question that there was considerable delay in reporting the loss. As far as one can see there is no explanation in these cases for the delayed search of the alleged lost forms. The company had been directed to produce the forms in August, 1955, in the assessment case for the year ended December, 1954, and nothing was done in the matter, on the appellant's own showing, until the middle of January, 1957. This was obviously dubious behaviour which repels an inference of bona fide loss. Apart from the question of there being or not being statutory sanction behind the circular, the appellant did not fulfil its first condition of prompt action in aid of an inference of bona fide loss,

35. It is to be observed that adjournments of hearing of the case before the Commercial Tax Officer were applied for and obtained on several occasions commencing from 4th August, 1955. The ground of adjournment on one occasion was that the books had not yet been closed ; on another it was the illness of the accountant of the appellant company; on the third, it was just inability to produce the declaration forms that day. It was not until 28th March, 1957, that the disclosure was made that the declaration had been misplaced and the company was trying to obtain duplicates from the purchasing dealers. Surely, these are circumstances which will not readily attract application of the circular issued by the Commissioner of Commercial Taxes.

36. To retrieve the situation, the appellant company issued advertisements in the local press publishing the loss of forms. Insertions also appeared in the Calcutta Gazette between May and August, 1957, notifying that some registered dealers had lost their sales declaration forms. Obviously on receipt of information that such losses had occurred, the Gazette notifications were made at the instance of the department in order to safeguard revenue by preventing abuse of the forms by any kind of fraudulent user.

37. The registered dealers not having been encouraged in the circumstances to issue duplicates, the appellant company applied to the Commercial Tax Officers concerned under Section 21A of the Bengal Finance (Sales Tax) Act for appropriate orders on the purchasing dealers to produce their books and documents to prove the sales by the appellant company. A list was attached to the application detailing the documents required which included the counterfoils of the declaration forms issued to the appellant company. Costs for issue of summons for attendance of witnesses were offered to be deposited immediately. The contention was that proof aliunde of such sales would entitle the appellant company to the exemption from tax to which they would otherwise be liable. It does not appear that any order was made on the application. The appellant company then moved the Commissioner of Commercial Taxes on 27th August, 1957, and prayed that suitable directions might be given to the Commercial Tax Officers concerned to direct the purchasing dealers in their respective charges to issue duplicate declarations to the appellant company. It was claimed that the appellant company was entitled to a special order in the circumstances of the case and it offered to submit to any order to indemnify Government for any reasonable sum to safeguard revenue. The Commissioner by an order dated 30th August, 1957, observed that he found no sanction behind the issue of duplicates and declined to interfere on the ground amongst others that he had not then before him any order made by a subordinate officer which he could set aside.

38. Dissatisfied with this order the appellant company moved the Board of Revenue, West Bengal, stating the circumstances in which he had asked for a direction from the Commissioner of Commercial Taxes authorising the Tax Officers to instruct the purchasing dealers in their respective charges to issue duplicate declarations. The application was summarily rejected by an order dated 10th December, 1957.

39. As indicated above the assessments were completed and the Commercial Tax Officers concerned allowed exemption only in respect of such sales as had been evidenced by the production of declaration forms. Even duplicate declaration forms were accepted, such forms having been issued by at least three of the registered dealers to whom the appellant company had sold during the assessment year in question. It seems therefore clear that although the department did not go out of its way to instruct any of the purchasing dealers to issue duplicates, it gave effect to the claim of exemption wherever such duplicates were produced.

40. In this writ petition the chief complaint is that the Commercial Tax Officer concerned denied the appellant company justice by refusing to take action on its application under Section 21A of the Act. The complaint is that the application had not even been disposed of and yet the officer concerned proceeded to assessment. It is said that the appellant company was, in any event, entitled to an order on the application. Since it does not appear that any formal order was passed, it would be only right to proceed on the footing that the application had been refused. The question then arises whether the Commercial Tax Officer acted in disobedience or disregard of any statutory provision or acted in violation of the principles of natural justice. There can be no question that the officer concerned acted in a quasi-judicial capacity and was accordingly bound by the provisions of the Act and the statutory rules as well as by the rules of natural justice.

41. Section 21A provides that the Commissioner or a Commercial Tax Officer has the same powers as are vested in a court, under the Code of Civil Procedure when trying a suit in respect of certain matters, namely, (a) enforcing the attendance of any person and examining him on oath or affirmation, (b) compelling the production of documents and (c) issuing commissions for the examination of witnesses. The section proceeds to say that a proceeding under the Act before the Commissioner or the Commercial Tax Officer is to be deemed a judicial proceeding within the meaning of Sections 193, 228 and 196 of the Indian Penal Code. It has been argued that the proceedings before the Commercial Tax Officers have, by statute, been made to approximate as closely as possible to proceedings before the Court; that being the position, the argument is, that the appellant company was denied justice by the Commercial Tax Officer's refusal to act in terms of Section 21 A. I am unable to accede to this contention. The section does not encourage the view that upon an application being made for production of documents or examination of witnesses, the officer is obliged to grant the application in every case. It is merely an enabling provision which must mean that there is always a discretion to exercise the power or refuse to exercise it. In all the circumstances that had happened including the delayed disclosure of loss of forms, the assessing authority was undoubtedly entitled to take into account relevant facts before it decided to take action under Section 21A. It is true that where discretion is vested in a constituted authority, that discretion cannot be exercised in an arbitrary manner. But it can by no means be said, in the facts of this case, that the refusal to summon witnesses or compel production of documents was evidence of arbitrary exercise of discretion. The complaint seems to be that in any event the company was entitled to an order either refusing or allowing the application before the officer proceeded to assessment. This, it is said, has caused considerable prejudice to the appellant and worked substantial injustice. It is well-known that when no order is passed upon an application, it amounts to a refusal; it would therefore be right to proceed on the footing that the application was refused. The question then arises whether such refusal was justified. As I have said there was abundant material before the officer concerned which would justify rejection of the application and such refusal cannot be said to amount to arbitrary exercise of power or denial of justice. This is undoubtedly one of the considerations though not the whole of the consideration. There is another aspect of the matter to which I shall presently refer.

42. The provisions of the Bengal Finance (Sales Tax) Act properly read make plain the position that the Legislature viewed the custody and use of sales tax declaration forms as a serious matter. Rigorous provisions have been made for safety of these forms while in the custody of registered dealers. Obviously they are very valuable documents and any improper use or abuse of these forms cannot, in the interests of State revenue, be regarded with complacency Or even indifference. The relative provisions of the Act require to be noticed.

43. Section 5 prescribes the rate of tax. Sub-section(2) defines taxable Jurnover ' and proceeds to say that a dealer who -is liable to pay tax would be assessed on his gross turnover which remains after making certain deductions. One of the deductions allowed is on account of sales by a registered dealer of goods of the class or classes specified in his certificate of registration to another registered dealer for purposes of resale. But the right to deduction is not an unqualified right; it is regulated by a proviso which reads as follows : 'Provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are sold and containing the prescribed particulars on a prescribed form obtainable from the prescribed authority is furnished in the prescribed manner by the dealer who sells the goods'. This Sub-clause (a) (ii) was substituted by Section 4 of the Bengal Finance Sales Tax (West Bengal Amendment) Act, 1950. Thus, it is plain that the proviso was engrafted into the statute about nine years after the Act had come into force. Obviously that would imply that this amended provision embodied the result of experience of administering the Act and was designed to meet contingencies for which no provision had been made in the original enactment. There can be no question that the proviso cuts down the effect of the main provision in the sub-clause which is that on proof of sale by a registered dealer to another such dealer of such goods as he is competent to sell under the certificate of registration he holds, he is entitled to exemption when the sale is intended for the purpose of resale. The question arises as to the proof of such sale since the tax authorities could only grant exemption on being satisfied that the sale is by one registered dealer to another for the purpose of resale. Without the proviso the registered dealer who sells will be quite entitled to prove in any way he likes his sales to another such dealer for the purpose of resale. But the proviso limits him, in no unprecise manner to a particular mode of proof of such sale ; and it says that exemption can be allowed only on production of a declaration duly filled up and signed by the purchasing dealer and containing the prescribed particulars in the prescribed form obtainable from the prescribed authority. When a statute directs a thing to be done in a particular way, it has to be done in that way only and in no other way. The mode of proof enjoined is unequivocal; it is absolute and admits of no variation. In my opinion it is idle to contend that the mode of proof can be substituted by any other.

44. The word 'prescribed' means prescribed by rules framed under the Act. The prescriptions are indeed elaborate. The form is prescribed: it is to be obtained from the prescribed authority and filled in the prescribed manner, stating the prescribed particulars. Thus the Legislature left nothing to chance and took pains to see that no lacunae were left in the matte of these declaration forms, All these clearly indicate the anxiety with which the custody and use of these forms was viewed by the Legislature. Section 22(1) (cc) provides that whoever has in his possession any prescribed form referred to in the proviso which has not been obtained by him or by his principal or agent in accordance with the provisions of this Act or any rule made thereunder, shall be punishable with simple imprisonment which may extend to six months or to a fine. Section 7(4a) (ii) gives power to the Commissioner to demand for good or sufficient reason from a registered dealer reasonable security for the proper custody and use of the forms. The proviso (ii) to Sub-section (4) of Section 11 empowers the Commissioner to order forfeiture of the whole or part of the security deposit, if there has been negligence or wilful default in regard to their proper custody or use. Turning to the rules framed under the Act, one finds further provisions made regulating the custody and use of the forms. Rule 27A(2) says that a dealer wishing to make claim to deduction shall not accept nor shall the purchasing dealer give a declaration except in the form obtainable on application by the purchasing dealer from the appropriate Commercial Tax Officer and not declared obsolete or invalid by the Commissioner. Sub-rule (9) gives power to the Commissioner to notify that declaration forms of a particular series, design and colour to be obsolete and invalid with effect from a stated date. The registered dealer is forbidden by Sub-rule (6) to transfer a declaration form issued to him by the Commercial Tax Officer to any person except for the purpose specified in Sub-rule (2). Loss of forms is directed by Sub-rule (3) to be immediately reported to the appropriate Commercial Tax Officer. Sub-rule (4) provides for inspection at all reasonable times by the tax authorities of the relative register ; and Sub-rule (5) enjoins immediate surrender of unused forms to the Commercial Tax Officer upon cancellation of the dealer's certificate of registration.

45. The provisions which I have just read clearly indicate that possession and use of forms have been made objects of special care. The reason is obvious. To safeguard against the danger of their misuse these elaborate precautions have been taken. The safeguards have been necessary in the interest of revenue as well as in the interest of the honest dealer. The stringency of the provisions is the measure of the Legislature's concern to protect the public interest and explains the rigidity of the proviso which limits proof of the transactions to the manner prescribed.

46. It has been argued on behalf of the appellant that the proviso has to be viewed in a reasonable manner ; and where proof is offered of loss of forms on account of circumstances over which the assessee had no control, the relevant rule has to be reasonably read and the claim of exemption allowed on production of evidence of secondary nature. It has been contended that the provision of Section 21A may, in such circumstance, be properly called in aid. I have indicated that Section 21A is merely an enabling provision. The mere fact that power has been given to take evidence does not necessarily imply that such power can be used for the purpose of dispensing with a mode of proof statutorily prescribed. Section 21A cannot be read as superseding or repealing, in effect, the earlier specific provision contained in the proviso. The wide words of the section cannot be so construed as to affect in any way the proviso which is remarkable for its insistence and emphasis upon a particular mode of proof requiring the production of the declarations themselves. I cannot agree that the rigour of proof of the declarations in terms of the proviso, was intended to be abated by Section 21A by letting in evidence of secondary nature.

47. Secondary evidence is a creature of statute ; its reception is conditioned by elaborate rules which bind the courts. In the absence of express provision they have no place in the proceedings of the tax authorities charged with the duty of administering the Act. Such authorities are bound by the statute which creates them and the rules which regulate their proceedings. They are also bound by the rules of natural justice when they act in a quasi-judicial capacity. But natural justice provides only for a fair hearing and knows nothing of the technicalities which regulate the reception of secondary evidence. The Commercial Tax Officer was therefore justified in insisting upon the mode of proof enjoined in the statute and he would have contravened its provisions if he had acceded to the appellant's request to accept secondary evidence of the sales. Where the provision of a statute is clear and unambiguous and the direction absolute, it would be wrong to go behind such express provision in search of a palliative to mitigate the rigour of the law.

48. On behalf of the respondents the learned Advocate-General has, in my view, rightly contended that the Commercial Tax Officer would have exceeded his authority if he had taken secondary evidence of the sales in respect of which exemption had been claimed. Reliance was placed on a decision of the Supreme Court in the case of Commissioner of Agricultural Income-tax, Bengal v. Shri Keshab Chandra Mandal 18 I.T.R. 569 in which it was held that where a statute and the rules framed thereunder clearly indicate an intention that a document was required to be signed by an individual that intention must be given effect to, and no argument based on hardship or inconvenience can be admissible. That was a case under the Bengal Agricultural Income-tax Act, 1944, which contains a provision indicating an intention to exclude the common law rule qui facit per alium facit per se in the matter of affixing signature to the return of income made by the assessee who was an individual. 'It having appeared clear on the records that there was no physical contact between the assessee and the signature appearing on the return, the return was held not properly signed and was consequently not a valid return. Where the provision requires the assessee to put his own signature on the return, there must be physical contact between the assessee and the signature or the mark put on the document and the question of inconvenience or hardship is irrelevant.

49. In the case of Wilkes v. Goodwin (1923] 2 K.B. 86 it was held that where the language used by the legislature is reasonably plain, no enquiry is justified into its supposed intention. If the result is not what the legislature intended, it is for the legislature to amend the law, rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning. The way of safety in construing a statute is always to give to the language used its ordinary meaning. The contention on behalf of the appellant has been that if the strict words of the proviso have to be followed and the mode of proof therein prescribed has to be adhered to, it is bound to result in injustice and hardship. This argument can have no place in a statute where the words used are quite plain. In the case of Wankie Colliery Co., Ltd. v. Commissioners of Inland Revenue [1921] 3 K.B. 344 it was held that where the words of a statute are plain, the court has no right to put an unnatural interpretation upon them simply 'because the putting of the natural interpretation might work injustice.

50. Section 5 (2)(a)(ii) of the Bengal Finance (Sales Tax) Act speaks of an item of deduction to which a registered dealer is declared entitled. But the proviso attached to it has a limiting effect which restricts the manner of proof of such sales. Without the proviso a registered dealer might prove the sales in any way he liked; but the effect of the proviso clearly is that the claim of exemption becomes admissible only if the sales are proved in the way prescribed. It seems clear enough that the proviso makes the proof purposely rigorous to exclude the possibility of unauthorised exemption. In the case of Howard De Walden v. Inland Revenue Commissioners [1942] 1 K.B. 389 Lord Greene felicitously summed up the position in a similar situation where the question of avoidance of tax liability arose for consideration. It was said that there may be provisions of a penal nature in a taxing statute which are intended to be an effective deterrent and which will put a stop to practices Which the legislature considers to be against the public interest. 'For years a battle of manoeuvre has been waged between the Legislature and those who are minded to throw the burden of taxation off their own shoulders on to those of their fellow subjects. In that battle the Legislature has often been worsted by the skill, determination and resourcefulness of its opponents. It would not shock us in the least to find that the Legislature has determined to put an end to the struggle by imposing the severest of penalties. It scarcely lies in the mouth of the taxpayer who plays with fire to complain of burnt fingures'.

51. The position seems inescapable that the language of the proviso in question must receive its ordinary and natural meaning. The resultant hardship cannot be a ground for disregarding its clear words or an excuse for disobeying its plain direction. In my view, the Commercial Tax Officer would have disobeyed an express provision of the law if he gave effect to the appellant's contention that it was open to the company to adduce proof of the transactions in question by calling secondary evidence in the way suggested. The application under Section 21A even if allowed would have provided means of adducing proof of the sales, not by the primary evidence of the declarations themselves, but by the indirect evidence of the transactions to which the declarations were said to relate. But where an express provision enjoins proof of sales in a particular way, the court must hold that the sales have to be proved, if at all, in that way only and in no other way.

52. It has then been argued on behalf of the appellant company that the proviso constitutes an unreasonable restriction on its fundamental right to carry on trade and business. The learned trial Judge appears to have held that the company not being a citizen cannot be heard to complain of restrictions on its fundamental rights. This view, it has been pointed out on behalf of the appellant, has since been revised by the learned Judge himself in the case of T.D. Kumar & Bros. (Private) Ltd. v. Iron and Steel Controller [1961] A.I.R. 1961 Cal. 258 where he has held that the company in that case being a citizen could claim the privileges guaranteed by Article 19(i)(g)' of the Constitution. Reliance was also placed on a decision of the Supreme Court in the case of Tata Iron & Steel Co., Ltd. v. S. R. Sarkar A.I.R. 1961 S.C. 65 for the proposition that it was open to a company to complain of infringement of the fundamental right to hold property and a company can in an appropriate case approach the Supreme Court under Article 32 of the Constitution. Proceeding on the footing that the appellant company is entitled to complain of restriction on its fundamental right to carry on trade or business, it seems to me clear enough that the proviso does not constitute an unreasonable restriction on its right to carry on trade. The obvious purpose which led to its enactment was to safeguard State revenue. To achieve that object the Act and the Rules enjoin rigorous care in dealing with the declaration forms. No one can be heard to complain that a particular provision of the law constitutes an invasion of fundamental right on the ground that its effect is to compel those who come under the Act to be scrupulously cautious in regard to certain matters where relaxation of vigilance is likely to be fraught with grave consequences to the persons concerned and imperil the State revenue. Indeed it would be a claim of novel right to carry on trade in any way one likes, even in a careless way. If the appellant company has been careless in regard to these forms in spite of the insistent statutory emphasis of their careful custody and use, the company has to suffer.

53. There is, in my view, no substance in the complaint that since the loss of forms was accidental it amounted to abuse of the power of the tax authorities to refuse to hold an enquiry into the circumstances of such loss in order that the appellant company might be allowed to adduce secondary evidence of the transactions in respect of which the exemptions were claimed. The Commercial Tax Officer had no power under the Act to hold an enquiry into the alleged loss of declaration forms; and as regards the question of allowing secondary evidence I have already held that the language of the proviso is imperative and must receive effect.

54. Reliance has been placed on certain observations in Craies on Statute Law (5th Edition, page 248), in aid of the contention that compliance with the provisions of a statute can be excused on proof of circumstances which render compliance impossible. If a circumstance over which the person concerned has no control supervenes like the act of God or enemy action, there will arise a case of valid excuse. The contention is that the loss of forms occurred on account of circumstances beyond the control of the appellant company ; consequently compliance with the proviso in question can be excused. Courts' are sometimes called upon to deal with such eventualities and the consensus of opinion seems to be that compliance with an act enjoined by statute is excused only where .compliance becomes impossible by reason of an act of God or an act of the enemy. Surely loss of forms was due to neither. In the case of Marsland v. Taggart [1928] 2 K.B. 447 the question arose in a slightly different form. A complaint was heard by a court of summary jurisdiction consisting of three Justices who unanimously dismissed it, but agreed to state a case for the opinion of the High Court under Section 2 of the Summary Jurisdiction Act, 1857. Before the case was stated one of the Justices died and the case was signed by the surviving two Justices only.

55. It was held that the obligation of the Justice to sign the case was created by law and as his failure to fulfil that obligation was due to his death, and not to any act on his part, the court had jurisdiction to proceed with the matter. One of the learned Judges Shearman, J., observed that Justices come and go but justice itself should endure. The learned Judge added ' I see no reason to uphold an objection which would result in justice coming to an end owing to the death of a Magistrate'. Thus, non-compliance is excusable only in such an extreme case as where death supervenes and prevents compliance. The appellant company cannot be heard to Say that non-compliance with the proviso in question was induced by some such cause.

56. In my opinion, the appeal fails and must be dismissed.


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