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Madanlal Mahawar and ors. Vs. the Commercial Tax Officer, Central Section and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberMatter No. 109 of 1962
Judge
Reported in[1965]16STC1071(Cal)
AppellantMadanlal Mahawar and ors.
RespondentThe Commercial Tax Officer, Central Section and ors.
Appellant AdvocateN.C. Roy, Adv.
Respondent AdvocateThe Adv.-General and ;K.C. Mukherjee, Adv. i/b., N.C. Mitra, Solicitor
Cases ReferredAgency Sales Private Ltd. v. Commercial Tax Officer
Excerpt:
- banerjee, j.1. at all periods material for the purpose of this rule, the petitioners, who are three in number, and one saraswati mahawar used to carry on business in co-partnership under the firm name madanlal gajanand, as exporters, importers and order suppliers, at no. 28, armenian street, in the town of calcutta. saraswati mahawar is now dead and the three petitioners are now the only partners of the firm above-named.2. on 7th august, 1958, the firm obtained a certificate of registration as a dealer, under the bengal finance (sales tax) act, 1941, from the commercial tax officer, amratolla charge (respondent no. 3). under the registration certificate, the petitioner was required to submit quarterly returns in every samvat year, which was the accounting year of the firm. respectively on.....
Judgment:

Banerjee, J.

1. At all periods material for the purpose of this Rule, the petitioners, who are three in number, and one Saraswati Mahawar used to carry on business in co-partnership under the firm name Madanlal Gajanand, as exporters, importers and order suppliers, at No. 28, Armenian Street, in the town of Calcutta. Saraswati Mahawar is now dead and the three petitioners are now the only partners of the firm above-named.

2. On 7th August, 1958, the firm obtained a certificate of registration as a dealer, under the Bengal Finance (Sales Tax) Act, 1941, from the Commercial Tax Officer, Amratolla Charge (respondent No. 3). Under the registration certificate, the petitioner was required to submit quarterly returns in every samvat year, which was the accounting year of the firm. Respectively on 9th February, 1960, and 24th May, 1960, the petitioners, in their firm name, allege to have submitted their quarterly returns for the quarters ending Magh Bodi 14, 2016 S.Y. (corresponding to 27th January, 1960) and Baisakh Bodi 14, 2017 S.Y. (corresponding to 24th April, 1960) and deposited the admitted amount of tax.

3. On 7th June, 1960, the Commercial Tax Officer, Amratolla Charge, (respondent No. 3) served a notice in Form VI upon the petitioners therein stating, (i) that inasmuch as the petitioners had not furnished any return for the quarter ending Baisakh Bodi 14, 2017 S.Y. and (ii) that inasmuch as he was not satisfied that the return filed by the petitioners for the quarter ending Magh Bodi 14, 2016 S.Y. was correct and complete, he proposed to assess the petitioners under Section 11(1) of the Bengal Finance (Sales Tax) Act. The petitioners, inter alia, state that in so far as the notice proceeded on the basis that the petitioners had filed no return for the quarter ending Baisakh Bodi 14, 2017, the same was incorrect and imaginative in nature. Nevertheless, proceeding on the basis of such incorrect notice the Commercial Tax Officer, Amratolla Charge (respondent No. 3), made a purported best judgment assessment on the petitioners for the two quarters above-mentioned and issued a notice demanding a sum of Rs. 1,55,766-10-0 as tax. Aggrieved by the order of assessment, the petitioners preferred an appeal before the Assistant Commissioner of Commercial Taxes, Dharamtolla Circle, Calcutta, under the provisions of Section 20(1) of the Act.

4. While the appeal by the petitioners was pending, they received a letter, dated 22nd May, 1961, from the Commercial Tax Officer, Central Section, West Bengal, to the following effect:--

I write to inform you that I have this day assumed jurisdiction over you in all matters under the Bengal Finance (Sales Tax) Act, 1941, and Central Sales Tax Act, 1956.

You are accordingly directed to furnish all returns and challans as required under law to me.

5. The petitioners characterize this assumption of jurisdiction as illegal and beyond the competence of the Commercial Tax Officer, Central Section, for reasons to which I shall hereinafter refer.

6. By his order, dated 14th December, 1961, the Assistant Commissioner of Commercial Taxes allowed the appeal preferred by the petitioners and set aside the assessment made upon them with the following observations:--

Considered the petitioner's argument and perused relevant records. Although I agree that reasonable opportunity was allowed to the petitioner in this case, still considering the respectability of the dealer, I think the Commercial Tax Officer should have done well in allowing the petitioner's prayer for a very short adjournment of two days only, when also I find that though the assessment was completed on the date next to the date of hearing, it took the Commercial Tax Officer further 9 days' time to issue notice of demand.

7. So far as the estimate made by the Commercial Tax Officer was concerned I also do not find any special reason for which the Commercial Tax Officer disallowed the petitioner's total claims of deductions under Section 5(2)(a)(ii) which amounted to many lacs. The Commercial Tax Officer did not also state the detailed reasons in support of such estimate. In such a case I am sorry to remark that the Commercial Tax Officer did not apply his mind carefully in making the estimate in question and as such I do not call the estimate to be a best judgment one. In such a case the assessment is set aside with direction to the Commercial Tax Officer to make a fresh assessment after allowing the petitioner one more opportunity of being heard. The assessment having been set aside I do not like to discuss the petitioner's other argument made in this connection.

8. After the remand order by the Assistant Commissioner of Commercial Taxes, the matter did not go back to the Commercial Tax Officer, Amratolla Charge. The Commercial Tax Officer, Central Section, assumed jurisdiction in the matter of assessment after remand and, notwithstanding all objections by the petitioners, made an order, dated 30th January, 1962, assessing the petitioners to sales tax for the two quarters above-mentioned. Thereafter, he issued a notice of demand calling upon the petitioners to pay a sum of Rs. 2,20,702.40 nP. by way of sales tax.

9. Aggrieved by the order of assessment by the Commercial Tax Officer, Central Section, the petitioners moved this Court, under Article 226 of the Constitution, praying for a writ of certiorari for the quashing of the order of assessment and for writ of mandamus on the respondent No. 1 directing him to forbear from giving effect to the assessment order and for further writ of mandamus and/or prohibition on the Commercial Tax Officer, Central Section, restraining him from assuming jurisdiction to assess the petitioners under the Bengal Finance (Sales Tax) Act and obtained this rule.

10. The creation of the Central Section, under the Bengal Finance (Sales Tax) Act, appears to have raised a good deal of resentment and oppositionism amongst dealers and this necessitated the passing of an Ordinance known as Bengal Finance (Sales Tax) (Amendment) Ordinance, 1962, followed by the passing of an Amending Act (West Bengal Act XVII of 1962) for doing away with all oppositionism. Whether the amendment mended all infirmities in the matter of creation of the Central Section is a point which requires consideration in this Rule.

11. Mr. N.C. Roy, learned Advocate for the petitioners, argued several points in support of this Rule and condemned the creation and operation of the Central Section with great force. The learned Advocate-General appearing for the respondents put up an able defence in support of the creation and operation of the Central Section. My task has been made easier in this Rule by the learned counsel and I take this opportunity of recording my appreciation of the eminent assistance rendered by them.

12. Mr. Roy raised the following contentions in this Rule. He argued, in the first place, that the return for the quarter ending Baisak Bodi 14, 2017 S.Y. (corresponding to 24th April, 1960) was filed on 24th May, 1960. The Commercial Tax Officer, Amratolla Charge, ignored the return, when, on 4th June, 1960, he issued the notice in Form VI to the petitioners under Sections 11 and 14(1) of the Bengal Finance (Sales Tax) Act. There was thus, Mr. Roy contended, a wrong assumption of jurisdiction by the Commercial Tax Officer, which rendered the assessment of tax upon the petitioners void and unsustainable. He contended, in the next place, that the order of transfer of all matters in relation to the petitioners under the Bengal Finance (Sales Tax) Act, 1941, and the Central Sales Tax Act, 1956, to the Central Section, West Bengal, was bad on several grounds, viz., (i) an Assistant Commissioner of Commercial Taxes could not be authorised to assume jurisdiction over the petitioners as the Commercial Tax Officer, Central Section, (ii) Transfer of all the matters under the Bengal Finance (Sales Tax) Act and the Central Sales Tax Act in relation to the petitioners, without indication of any particular matter in relation to them under the aforesaid Acts and without any limitation, was bad and as such, the transfer had no statutory sanction behind it. (iii) Regard being had to the location or the place of business of the petitioners, the appropriate Commercial Tax Officer, in relation to the petitioners, was the Commercial Tax Officer, Amratolla Charge. The petitioners had filed their returns before the said Commercial Tax Officer, and he must consider the returns himself and must not part with the same for being considered by the Commercial Tax Officer, Central Section, (iv) The Commercial Tax Officer, Amratolla Charge, had made an assessment upon the petitioners in exercise of his power under Section 11(2) of the Bengal Finance (Sales Tax) Act. The petitioners filed an appeal against the order before the Assistant Commissioner of Commercial Taxes, Dharamtolla Circle. The said Assistant Commissioner set aside the assessment with direction to ' the Commercial Tax Officer.' meaning the Commercial Tax Officer, Amratolla Charge, to make a fresh assessment upon the petitioners. Under that order, the Commercial Tax Officer, Amratolla Charge, could make a fresh assessment upon the petitioners and not any other officer. The fresh assessment made by the Commercial Tax Officer, Central Section, was therefore bad and unworthy of being sustained, (v) The order of transfer to the Central Section, made before the amending Ordinance and the Act, was bad because the unamended Act did not contemplate creation of such a section. Even after the passing of the amending Ordinance and the Act, the order of transfer still remained bad, because the amending statute merely contemplated transfer of a case or matter to the Central Section and not the ad hoc transfer of all matters relating to an assessee under the Bengal Finance (Sales Tax) Act and the Central Sales Tax Act, as was sought to be done in the case of the petitioners, (vi) The Bengal Finance (Sales Tax) Act prescribes authorities for delegation of duties and functions of the Commissioner. Nothing authorised the Commissioner to delegate his functions and duties to officers other than those prescribed. The delegation being bad, the assessment order made by such a delegate must not be sustained, (vii) There was no delegation of authority by the Commissioner to the Commercial Tax Officer, Central Section, or alternatively any delegation of authority made in favour of Commercial Tax Officer, Central Section, was never published and, as such, the Commercial Tax Officer, Central Section, was incapable of functioning as such delegate.

13. Mr. Roy lastly contended that principles of natural justice were violated in making the assessment on the petitioners, in that the petitioners were not given sufficient opportunity to controvert the materials produced against them.

14. The arguments advanced by Mr. Roy are interesting and deserve careful consideration. I shall take up his arguments in the order they were advanced before this Court.

15. The first contention of Mr. Roy regarding the invalidity of the notice in Form VI need not be emphasized. The jurisdiction to assess and the liability to pay taxes are not conditional on the validity of the notice in Form VI. The liability to pay sales tax is founded upon sections 4 and 5 of the Bengal Finance (Sales Tax) Act, which are the charging sections. Section II of the said Act merely provides that before making an assessment, the dealer must be given a reasonable opportunity of being heard. Rule 49 of the Bengal Sales Tax Rules further provides as follows:--

When it appears to an assessing authority to be necessary to make an assessment under Section 11 in respect of a dealer he shall serve a notice in Form VI upon him...

16. Section II read with Rule 49 is not the charging provision in the Bengal Finance (Sales Tax) Act but merely lays down the procedure of assessment. Assessment of sales tax made without service of notice in Form VI or on the basis of irregular or incomplete notice may be at best an irregularity but does not touch the jurisdiction to assess. If as a result of the irregularity an assessee is prejudiced, the assessment may be set aside on the ground of irregularity prejudicing the assessee, but an assessment does not become a void assessment because of invalidity or irregularity or absence of a notice. This was the view taken by the Federal Court in deciding a similar point under the Indian Income-tax Act in the case of Chatturam v. Commissioner of Income-tax [1974] 15 I.T.R. 302 in which Kania, J. (as he then was), observed:--

The income-tax assessment proceedings commence with the issue of the notice. The issue or receipt of a notice is not, however, the foundation of the jurisdiction of the Income-tax Officer to make the assessment or of the liability of the assessees to pay the tax. It may be urged that the issue and service of a notice under Section 22(1) or (2) may affect the liability under the penal clauses which provide for failure to act as required by the notice.

17. Similar view was taken in respect of similar provisions in the Bihar Sales Tax Act by the Patna High Court in the case of Harmukh Rai Jairamdas v. State of Bihar : AIR1952Pat278 . That being the legal position I have to see whether the petitioners suffered any prejudice because of the irregularity in the notice in Form VI above referred to. The original order of assessment, started on the basis of the impugned notice, was set aside in appeal as already stated. At the fresh assessment, one of the petitioners appeared before the Commercial Tax Officer, Central Section, so also did their pleader. The date of assessment was fixed in the presence of petitioners' lawyer. On the date fixed for hearing, one of the petitioners asked for adjournment which, however, was rejected (vide Order Sheet, exhibit 2). Excepting as to making some oral objections, the petitioners did not challenge the jurisdiction of the Commercial Tax Officer, Central Section, to assess.

18. The objection as to jurisdiction and the prayer for adjournment in order to enable them to produce their books of account for the purpose of assessment ill go together. Their conduct shows that for all practical purposes they waived objections to the jurisdiction of the Commercial Tax Officer, Central Section. Further, from the assessment order after remand it does not appear that the petitioners were assessed for the quarter ending Baisak Bodi 14, 2017 S.Y. on the ground of failure to submit the quarterly return, although that was one of the grounds on which the proceedings had been originally started against the petitioners. In the assessment for the quarter ending Baisak Bodi 14, 2017 S.Y., the return filed, by the petitioners was found to be incorrect and the assessment was made on what the Commercial Tax Officer found to be the correct figure of turnover. Therefore, the petitioners suffered no prejudice because of the defect in the notice.

19. In spite of all that the petitioners did before the Commercial Tax Officer, Central Section, which I have already narrated, it was contended by Mr. Roy that the objection as to jurisdiction had never been waived. He contended that waiver might be constituted only by such action as might be regarded as constituting an agreement to abide by what had been done in the place and stead of what ought to have been done. Nothing short of that, he contended, would constitute waiver. On the facts of the present case, this argument is untenable. After the Commercial Tax Officer, Central Section, had taken over the assessment matter, the Pleader for the assessee appeared before him and the following order was passed in the presence of the Pleader:--

30. 12--1--62--Seen A.C. (D)'s final order passed in appeal setting aside assessment for two quarters ending Baisak Bodi 14, 2017 S.Y. Sri P. Das Gupta, Pleader, is present. The case is fixed for hearing on 22---1--62 at 11 a.m. and the Pleader informed.

20. On the date fixed for hearing, Madanlal Mahawar, one of the petitioners appeared and asked for time to produce account books. That time was granted and the date of hearing was fixed on 25th January, 1962. On that date none appeared but, on 30th January, 1962, one of the petitioners again appeared before the Commercial Tax Officer, Central Section, and asked for further time. The action of the assessee implied that they intended to be heard in support of their returns and were asking for an opportunity to make their submissions by production of documentary evidence in support of their returns. This conduct is sufficient to indicate that they had substantially waived the irregularity in the notice with which the proceedings had started. Under similar circumstances, Harris, C.J., and Chakravarti, J., took the same view and made the following observation in the case of Sri Shew Shakti Oil Mill v. Member, Board of Revenue I.L.R. (1949) 2 Cal. 347:--

If the objective of giving a notice is merely to carry out the provisions of section u which says that the dealer shall be given a reasonable opportunity of being heard, and if the assessees actually appear before the Assistant Commissioner and ask for an extension of the opportunity, it can hardly be said that the section was not complied with or that if there had been irregularity in giving the assessee the intimation, such intimation had not been waived.

21. Further, the law is now well-settled that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision, if it can be shown to be within its powers , under any other rule and that the validity of an order should be judged on consideration of its substance and not its form (Vide P. Balakotaiah v. Union of India [1958] S.C.R. 1052, 1059). In the view taken, I overrule the first branch of argument of Mr. Roy.

22. I now turn to the other argument of Mr. Roy, namely, that the transfer of all matters relating to the petitioners to the Central Section, under the Bengal Finance (Sales Tax) Act, was bad. The Bengal Finance (Sales Tax) (Amendment) Act, 1962, amended Sub-section (x) of Section 3 and added Sub-section (2A) and Sub-section (4) to Section 3 of the Bengal Finance (Sales Tax) Act, 1941, and the amendments and additions read as follows:

Section 3. (1) For carrying out the purpose of this Act, the State Government may appoint a person to be a Commissioner of Commercial Taxes together with such other persons to assist him as it thinks fit and may specify the area or areas over which they shall exercise jurisdiction.

Section 3. (2) ...

Section 3. (2A) Notwithstanding anything to the contrary contained in Sub-section (i), the Commissioner may transfer any case or matter from any person appointed under Sub-section (1) to assist the Commissioner to any other person so appointed whether such other person has jurisdiction over the area to which the case or matter relates or not, provided he is otherwise competent to deal with such case or matter in exercise or performance of the powers or duties referred to in Sub-section (2).

(3)...

(4) It is hereby declared that--

(a) any order made by the State Government, denning the area over which any person appointed under Sub-section (i) to assist the Commissioner is to exercise jurisdiction, or

(b) any transfer made by the Commissioner of any case or matter from any person appointed under Sub-section (i) to assist the Commissioner to any other person so appointed, or

(c) any assessment made or anything done or any action taken by any person appointed under Sub-section (i) to assist the Commissioner, in the exercise or performance of the powers or duties referred to in Sub-section (2) in any case or matter arising within any area referred to in Clause (a) or transferred to him by the Commissioner, before the commencement of the Bengal Finance (Sales Tax) (Amendment) Act, 1962, shall be deemed to be and to have always been validly made, done or taken as if that Act were in force when such order, transfer or assessment was made or such thing was done or such action was taken.

23. The amendments above-quoted were given retrospective operation. Mr. Roy did not argue that the amendments were ultra vires the Constitution or beyond the competence of the Legislature. He contended, in the first place, that the transfer of the petitioners' sales tax matters had been made to an Assistant Commissioner of Commercial Taxes and not to a Commercial Tax Officer, which was bad. In support of the argument, he relied on annexure B to the petition, which shows that the letter was issued from the office of the Assistant Commissioner, Commercial Taxes, Central Section. In my opinion, this argument is misconceived. The letter is signed by N.D. Sharma, who is the Commercial Tax Officer of the Central Section. It appears from the body of the letter that N. D. Sharma, as Commercial Tax Officer, Central Section, assumed jurisdiction over the petitioners. The fact that the said Commercial Tax Officer of the Central Section used a paper headed as the 'Office of the Assistant Commissioner, Central Section' in writing to the petitioner is of little consequence. I therefore do not make much of this contention.

24. Mr. Roy contended, in the next place, that the transfer of all the matters under the Bengal Finance (Sales Tax) Act was bad because only a particular matter or a particular case of the petitioners could be transferred from the Commercial Tax Officer, Amratolla Charge, to the Commercial Tax Officer, Central Section, if at all. In support of this argument, he relied upon the decision of the Supreme Court in Bidi Supply v. Union of India : [1956]29ITR717(SC) . In that case, the Supreme Court was considering the effect of Section 5(7-A) on Section 64 of the Income-tax Act. Section 64 of the Income-tax Act makes provision for determining the place of assessment. By Sub-section (1) where an assessee carries on business, profession or vocation at any place, he shall be assessed by the Income-tax Officer of that area, in which that place is situated, or where the business, profession or vocation is carried on at more than one place by the Income-tax Officer of the area in which the principal place of business, profession or vocation is situated. In other cases, according to Sub-section (2), an assessee shall be assessed by the Income-tax Officer of the area in which he resides. If any question arises as to the place of assessment, such question shall be decided after giving the assessee an opportunity to represent his views by the Commissioner or Commissioners concerned or in case of disagreement between them by the Board of Revenue. Section 5(7-A) of the Income-tax Act reads as follows:--

The Commissioner of Income-tax may transfer any case from the Income-tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income-tax Officer to another. Such transfer may be made at any stage of the proceedings and shall not render necessary the re-issue of any notice already issued by the Income-tax Officer from whom the case is transferred.

25. In dealing with the effect of Section 5(7-A) on Section 64, the Supreme Court observed:--

The Sub-section in terms makes provisions for the transfer of a 'case'. Under the Indian Income-tax Act, 1922, a case is started when the Income-tax Officer issues a notice under Section 22(2) of the Act calling upon the assessee to file his return of his total income and total world income during the previous year and then the assessee submits his return in the prescribed form. It is quite clear from the section that the notice and the return are to be confined to a particular assessment year and the Sub-section contemplates the transfer of such a 'case', i.e., the assessment case for a particular year. The provision that such a transfer may be made 'at any stage of the proceedings' obviously postulates proceedings actually pending and 'stage' refers to a point in between the commencement and ending of those proceedings. Further the provision that such transfer shall not render necessary the re-issue of notice already issued by the Income-tax Officer from whom the case is transferred quite clearly indicates that the transfer contemplated by the Sub-section is the transfer of a particular case actually pending before an Income-tax Officer of one place to the Income-tax Officer of another place.... It is implicit in the Sub-section that the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, should before making an order of transfer of any case apply his or its mind to the necessity or desirability of the transfer of that particular case. The fact that it is necessary or desirable to transfer a case of assessment of a particular assessee for any particular year does not necessarily indicate that it is equally necessary or desirable to transfer another assessment case of that assessee for any other assessment year.

26. Relying on the aforesaid observation, Mr. Roy contended that an ad hoc transfer of jurisdiction over the assessee from the Commercial Tax Officer, Amratolla Charge, to the Central Section, was not permissible even under Section 3(2A) of the Bengal Finance (Sales Tax) Act. This argument of Mr. Roy, in my opinion, should not succeed. The Central Section has jurisdiction over the whole of West Bengal. This appears from Notification No. 13-F.T., dated 23rd August, 1947. The said notification is set out below:--

It is hereby notified for general information that with effect from the 15th August, 1947, the jurisdiction of the undermentioned Assistant Commissioner of Commercial Taxes, Commercial Tax Officer and Inspector of Commercial Taxes will be as noted against each:--

Charge Station JurisdictionAssistant Commissioner of Commercial 10, Madan Street, The Whole ofTaxes, Central Section. Calcutta. West Bengal.Commercial Tax Officer, Central 10, Madan Street, The Whole ofSection. Calcutta. West Bengal.Inspector of Commercial Taxes,Central Section. Do. Do.By order of the Governor,

S.K. Mukherjee.

Secretary to the Government of West Bengal.

27. The aforesaid order, though made before the Amending Act, was adopted by Section 3(4a) of the amended Act, which I have already quoted, and now Central Section has valid jurisdiction over the whole of West Bengal and must be deemed to have had similar jurisdiction throughout the period of operation of the Bengal Finance (Sales Tax) Act. It appears further that by the Notification, dated 14th June, 1954, the Commissioner delegated the jurisdiction inter alia, to assess tax or penalty to all Commercial Tax Officers. That Notification is quoted below:--

In exercise of the powers conferred by Section 15 of the Bengal Finance (Sales Tax) Act, 1941 (Bengal Act VI of 1941), I hereby delegate to all Commercial Tax Officers appointed to assist me under Section 3(1) of the said Act, read with rule i(2)(f) of the Bengal Sales Tax Rules framed thereunder, the power under the different sections of the Act specified below to be exercised in respect of dealers within their jurisdiction:--Serial Section Description of power delegatedNo. 4 II To make an assessment of tax or penaltyor to fix a date for payment or to extenda date for payment of such tax or penaltyor to allow the payment of such tax orpenalty by instalments and to exerciseall other powers under Section II of theAct other than for any period not fallingbeyond the year ending on a date im-mediately following 26th May, 1948, inrespect of a dealer whose gross turnoverof the year immediately preceding suchPeriod exceeds Rs. 15 lakhs or whosetaxable turnover in such previous yearexceeds Rs. 3 lakhs.

28. Thus, by virtue of jurisdiction conferred by the orders quoted above, the Commercial Tax Officer, Central Section, has concurrent jurisdiction with the Commercial Tax Officer, Amratolla Charge, to assess the petitioners to sales tax. It is not necessary for the Commissioner to make any special order of transfer of the case of an assessee to the Commercial Tax Officer, Central Section, in order to enable him to assume jurisdiction. Even without such special order, the Commercial Tax Officer, Central Section, has and always had concurrent jurisdiction to assess the petitioner, in whichever part of West Bengal the petitioners might have carried on business. In assessing the petitioners the Commercial Tax Officer, Central Section, merely exercised the concurrent jurisdiction, which he had all over West Bengal and in exercise of that jurisdiction assessed the petitioners. This jurisdiction involves jurisdiction to deal with an assessee in all matters specified in the 'Delegation of Authority' order, dated 14th June, 1961, already set out. The special nature of the jurisdiction conferred on the Central Section distinguishes the instant case from the facts of the Bidi Supply case : [1956]29ITR717(SC) , where it was necessary for the Commissioner of Income-tax to make a special order of transfer in individual cases.

29. Ex abundanti cautelum, however, there was an order of transfer made by the Commissioner of Commercial Taxes, in the instant case, which I set out below:--

I do hereby order transfer of all the files in respect of the dealer M/s. Madanlal Gajanand of 28 & 33, Armenian Street, Calcutta, under both the Bengal Finance (Sales Tax) Act, 1941 (Registration Certificate No. AT/3585A) and the Central Sales Tax Act, 1956, from the jurisdiction of the Commercial Tax Officer, Amratolla Charge, to the Central Section under the Commercial Taxes Directorate, West Bengal, for taking necessary action under the aforesaid Acts.

30. In the case of the Agency Sales Private Ltd. v. Commercial Tax Officer, Amratolla Charge (Civil Rule No. 4077 of 1960 unreported) P. B. Mukharji, J., upheld an order of transfer of files of an assessee from the Commercial Tax Officer, Amratolla Charge, to the Commercial Tax Officer, Central Section, because he found the order of transfer made by the Commissioner cured all defects. I have alrer held that it was not necessary for the Commissioner of Comm(sic) Taxes to make an order of transfer to the Commercial Tax Officer Central Section, in this instant case, because the Commercial Tax Officer, Central Section, did possess the jurisdiction by virtue of delegation of authorities already made to him to assess the petitioners. Even then, if the Commissioner was required to make an order, there is the order which I have already set out above. I, therefore, do not find much substance in the criticism advanced by Mr. Roy that the ad hoc assumption of jurisdiction by the Commercial Tax Officer, Central Section, was bad and without jurisdiction.

31. Mr. Roy argued, in the third place, that the Commercial Tax Officer, Amratolla Charge, was the appropriate Sales Tax Officer for the petitioners, regard being had to the location of their business, and he should have assessed the petitioners. This argument is misconceived because under the Notification No. 13F dated 23rd August, 1947, the Commercial Tax Officer, Central Section, is also the appropriate Commercial Tax Officer for the petitioners.

32. Mr. Roy further argued that the Assistant Commissioner of Commercial Taxes had by his appellate order remanded the assessment case to the Commercial Tax Officer, Amratolla Charge, and the Commercial Tax Officer, Central Section, had no jurisdiction to assess the petitioners. I do not read the order of remand to contain such a specific direction. The matter was remanded for fresh assessment. Any Commercial Tax Officer, having jurisdiction, was competent to make the re-assessment in the light of the observation contained in the order of remand. The Commercial Tax Officer, Central Section, had such jurisdiction. The assessment made by the Commercial Tax Officer, Central Section, cannot, therefore, be struck down.

33. Mr. Roy submitted that the Commercial Tax Officer, Central Section, assumed jurisdiction over the petitioners on 22nd May, 1961, before the Bengal Finance (Sales Tax) Act was amended on 15th December, 1962. He, therefore, contended that the assumption of jurisdiction was bad. This argument has little substance because of the retrospective nature of the amendment introduced in the Bengal Finance (Sales Tax) Act.

34. Mr. Roy also contended that there was no delegation of authority by the Commissioner to the Commercial Tax Officer, Central Section, and, therefore, the Commercial Tax Officer, Central Section, could not assume jurisdiction over the petitioners. I have already referred to the notifications dated 23rd August, 1947, and 14th June, 1954, and delegation of authority thereby made to the Commercial Tax (sic)cer, Central Section, to deal with the case of the assessee like the (sic)titioners. For the reasons aforesaid, this branch of the argument advanced by Mr. Roy must also fail.

35. I now turn to the last branch of the argument of Mr. Roy, namely, that rules of natural justice were not observed in making the assessment after remand, because the petitioners were not given sufficient time to produce their account books. This argument has little substance. The date of hearing was at first fixed on 22nd January, 1962, by an order dated 12th January, 1962. On 23rd January, 1962, one of the petitioners appeared before the Commercial Tax Officer and asked for an adjournment so as to enable the petitioners to produce their books. This prayer was granted and the hearing was fixed for 25th January, 1962. On the date fixed nobody appeared before the Commercial Tax Officer. Five days later, however, on 30th January, 1962, one of the petitioners appeared before the Commercial Tax Officer with a prayer for adjournment of the hearing of the assessment case. This the Commercial Tax Officer did not allow. In these circumstances, I do not think that any principle of natural justice was violated or that the petitioners were not given sufficient opportunity to produce their books of account.

36. All the arguments advanced by Mr. Roy fail and this Rule is discharged with costs. Hearing fee is assessed at S G. Ms.


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