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Sm. Harimati Sen and ors. Vs. Commercial Tax Officer - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberF.M.A. Nos. 390 of 1976 and 499 of 1977
Judge
Reported in[1980]45STC252(Cal)
AppellantSm. Harimati Sen and ors.
RespondentCommercial Tax Officer
Appellant AdvocateDebi Prasad Pal ;and R.N. Dutta, Advs.
Respondent AdvocateSamarendra Nath Dutta, Adv. in F.M.A. No. 390 of 1976 and ;Atul Krishna Chowdhury, Adv. in F.M.A. No. 499 of 1977
Cases ReferredRaipur v. Gendalal
Excerpt:
- .....the owner of a petrol pump situated at battala chowk, midnapore, and carried on the business of motor spirit and allied materials in the name and style of m/s. sambhu charan sen. he had a dealership with esso eastern inc. he was the sole proprietor of the said firm and was a retail dealer under the bengal motor spirit sales taxation act, 1941. he died on 15th june, 1971.3. after his death, the dealership standing in his name with esso eastern inc. was terminated and it was granted to one of his sons, arun kumar sen, appellant no. 6, with effect from llth august, 1971. it is not disputed that the appellants, being the legal representatives of the said sambhu charan sen, carried on the business of motor spirit and allied materials up to 15th november, 1971. thereafter, they transferred.....
Judgment:

M.N. Dutt, J.

1. In these two appeals, the appellants have challenged the propriety of the judgment'of a learned single Judge of this Court discharging the rule nisi obtained by them on their application under Article 226 of the Constitution.

2. One Sambhu Charan Sen, since deceased, the predecessor-in-interest of the appellants, was the owner of a petrol pump situated at Battala Chowk, Midnapore, and carried on the business of motor spirit and allied materials in the name and style of M/s. Sambhu Charan Sen. He had a dealership with Esso Eastern Inc. He was the sole proprietor of the said firm and was a retail dealer under the Bengal Motor Spirit Sales Taxation Act, 1941. He died on 15th June, 1971.

3. After his death, the dealership standing in his name with Esso Eastern Inc. was terminated and it was granted to one of his sons, Arun Kumar Sen, appellant No. 6, with effect from llth August, 1971. It is not disputed that the appellants, being the legal representatives of the said Sambhu Charan Sen, carried on the business of motor spirit and allied materials up to 15th November, 1971. Thereafter, they transferred the business to appellant No. 6, Arun Kumar Sen. Respondent No. 1, the Commercial Tax Officer, Midnapore Charge, by his letter dated 17th November, 1971, transferred the licence of the business in favour of appellant No. 6 with effect from 15th November, 1971.

4. Before the death of the said Sambhu Charan Sen, respondent No. 1 served upon him two notices, both dated llth July, 1970, for the assessment of sales tax for the sale of motor spirit relating to the returns filed by him for the periods from January, 1968, to December, 1968, and from January, 1969, to December, 1969, under Section 7(1) of the Bengal Motor Spirit Sales Taxation Act, 1941, and started two Cases Nos. 24 and 25 of 1970-71. As the said Sambhu Charan Sen died, the assessment could not be made. After his death, respondent No. 1 also served upon the appellants two other notices both dated 12th February, 1972, for the assessment of sales tax for the periods from January, 1970, to December, 1970, and January, 1971, to December, 1971. By these two notices numbered as Cases Nos. 16 and 17 of 1971-72, the appellants were called upon by respondent No. 1 to appear before him and produce or cause to be produced accounts and documents in respect of the above periods. By a separate notice, the appellants were also called upon by respondent No. 1 to appear before him in respect of Cases Nos. 24 and 25 of 1970-71, the notices of which were served upon the said Sambhu Charan Sen. He was alive during the periods involved in all the above cases, except that a part of the period in Case No. 17 of 1971-72 was after his death.

5. The appellants challenged the jurisdiction of respondent No. 1 to issue such notices by two writ petitions. On an interpretation of Sub-section (4) of Section 10 of the Bengal Motor Spirit Sales Taxation Act, 1941, the learned Judge overruled the contention of the appellants that respondent No. 1 had no jurisdiction to issue the notices and that, accordingly, the same were illegal and invalid. Both the rules nisi issued on the said writ petitions were consequently discharged. Hence these appeals.Section 3 of the Act is the charging section and it provides that there shall be charged and levied on all retail sales of motor spirit a tax at the rate specified and such tax shall be payable to the State Government by the retail dealer. Clause (b) of Section 5 provides for the submission of a correct return every month by the retail dealer in the prescribed form to the prescribed authority. Section 6 provides that before submitting the return the retail dealer shall pay into a Government treasury or the Reserve Bank of India the full amount of the tax due under the Act in respect of the motor spirit sold by him in retail or consumed by him out of his own stock during the preceding month according to such return, and furnish along with the return a receipt from such treasury or bank showing payment of such amount. Under Section 7(1), if no return is submitted by a retail dealer under Clause (b) of Section 5 in respect of any month by the prescribed date in that behalf, or if the return is submitted without a receipt showing payment of the full amount of the tax due as required by Section 6 or if the return submitted appears to the authority referred to in Clause (b) of Section 5 to be incorrect or incomplete, such authority shall, after making such inquiry, if any, as it considers necessary, determine the amount of the tax due from such retail dealer in respect of such month and the amount so determined less the sum, if any, already paid by him shall be paid by the retail dealer into a Government treasury or the Reserve Bank of India within fourteen days from the date of service in the prescribed manner of the notice of demand therefor to be issued by the authority. The proviso to Sub-section (1) of Section 7 enjoins the giving of a reasonable opportunity to the retail dealer for proving the correctness and completeness of the return before the prescribed authority determines the amount of tax due. Sub-section (2) of Section 7 provides that if the amount of the tax due is not paid within the period mentioned in Sub-section (1), the authority referred to in Clause (b) of Section 5 may direct that the retail dealer shall pay in addition to the amount of the tax so unpaid a sum not exceeding that amount by way of penalty. Under Sub-section (3) of Section 7, the amount of tax due or the amount of penalty shall be recoverable from the person from whom it is due as an arrear of land revenue. Section 10 of the Act is as follows:

10. (1) No person carrying on business in motor spirit as a wholesale or retail dealer shall sell or otherwise dispose of such business or any part thereof except to a person possessing an appropriate licence under this Act to carry on such business.

(2) If any person carrying on any such business sells or otherwise disposes of such business or any part thereof he shall within fourteen days inform the prescribed authority accordingly; and if any such person dies, his legal representative shall, in like manner, inform the said authority.

(3) If any person carrying on any such business dies, his legal representative shall either --

(a) apply within thirty days for an appropriate licence under this Act to carry on the business; or

(b) sell or otherwise dispose of the business within thirty days to a person possessing an appropriate licence under this Act to carry on the business; or (c) dispose of the stocks of motor spirit, in respect of the sale of which tax under this Act has not been paid, under the directions of the authority referred to in Sub-section (2).

(4) When the ownership of the business in motor spirit or any part thereof of a retail dealer is transferred, any tax payable under this Act in respect of sales of such business or part thereof by such retail dealer which remains unpaid at the time of the transfer shall be payable by the transferee.

6. Dr. Debi Prasad Pal, the learned Advocate appearing on behalf of the appellants, submits that the Act has not made any provision for assessment of the legal heirs of the deceased retail dealer after his death for the sale of motor spirit by the retail dealer and, accordingly, the impugned notices are illegal and invalid. In view of a Bench decision of this Court in Bibhas Chandra Gon v. State of West Bengal [1964] 15 S.T.C. 277, it is not disputed that the transfer contemplated by Subection (4) of Section 10 also includes transfer by devolution of interest. So the appellants became transferees of the said Sambhu Charan Sen in respect of his business of motor spirit after his death. It is, however, contended on behalf of the appellants that Sub-section (4) does not provide for the assessment of sales tax payable by the deceased relating to the sale of motor spirit and recover the same from the transferees, that is, the appellants. Dr. Pal has laid special emphasis on the expression 'which remains unpaid at the time of the transfer' occurring in Sub-section (4) and submits that the said expression rules out any contention in favour of assessment of sales tax after the death of the retail dealer in respect of sales made by him when he was alive. His contention is that so long as the liability of the retail dealer to pay tax is not quantified, there is no question of any tax remaining unpaid. He submits that as the assessment of tax for the periods in question had not been made prior to the transfer, that is, before the death of the retail dealer, the transferees are not liable to be assessed for such periods.

7. On the other hand, it is contended by Mr. Dutt, the learned Advocate appearing for the respondents, that the liability of the dealer to pay sales tax arises as soon as sale of motor spirit takes place. Therefore, it is contended, the tax became due and payable by the retail dealer with the submission of return by him. If the retail dealer has not submitted the correct return, the prescribed authority is entitled to determine the amount due by him and, by virtue of Sub-section (4) of Section 10, the transferee is liable to pay the tax due.

8. There are three stages in the imposition of tax, namely, the declaration of liability, quantification of that liability by assessment and recovery of the amount of tax: see Whitney v. Commissioners of Inland Revenue (1926) 10 Tax Cas. 88 (F.C.). The moment the dealer makes either purchases or sales, which are subject to taxation, the obligation to pay the tax arises and taxability is attracted. The liability cannot be enforced till the quantification is effected by assessment proceedings: see Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income-tax (Central), Calcutta 82 I.T.R. 363 (S.C.). The sales tax laws have made provision for the assessment of the liability of a dealer to pay tax. In the instant case, the procedure is laid down in Section 7(1) of the Bengal Motor Spirit Sales Taxation Act, 1941. Under Section 7(1), the prescribed authority is entitled to make such enquiry as it thinks fit for the purpose of determination of the amount of tax due from the retail dealer. Under the proviso to Section 7(1), before such determination of the amount of tax due, the retail dealer shall be given a reasonable opportunity of proving the correctness and completeness of the return submitted by him. The retail dealer was the said Sambhu Charan Sen and he submitted the returns. The assessments were not, however, made during his lifetime for the determination of the amount of tax due by him. The proviso to Section 7(1) enjoins the giving of a reasonable opportunity to the retail dealer before such determination is made. The retail dealer, namely, the said Sambhu Charan Sen, being dead, it is impossible for the 'prescribed authority, that is, respondent No. 1, to comply with the direction as contained in the proviso to Section 7(1). The proviso is mandatory and if any assessment is made without giving the retail dealer an opportunity of being heard, such assessment will be illegal and invalid. Section 7(1) or its proviso does not provide for giving an opportunity to the legal representatives of the deceased retail dealer who are the transferees. The definition of the term 'retail dealer' as contained in Section 2(c) does not include the legal representative of a deceased retail dealer. The term has been defined as meaning any person who sells or keeps for sale motor spirit for the purpose of consumption by the purchaser. The legal representative of the retail dealer does not come within the purview of the definition of the term 'retail dealer'. It, therefore, comes to this that there is no provision in the Act for the assessment of tax after the death of the retail dealer. Under Sub-section (4) of Section 10, the transferee by devolution of interest is not the retail dealer although he has been made liable to pay the amount of tax payable by the retail dealer, that is, the transferor, which remains unpaid. As has been stated already, the determination of the amount of tax shall not be made by the prescribed authority without giving the retail dealer an opportunity of being heard. The opportunity has to be given to the retail dealer and not to any other person. After the death of the retail dealer, the transferee, namely, his heir, cannot, in our opinion, be substituted in his place by the prescribed authority, for the purpose of complying with the direction contained in the proviso to Section 7(1), for the Act does not make any such provision.

9. In the above view of the matter, the contention made on behalf of the appellants that Sub-section (4) of Section 10 makes the transferee liable to pay the amount of tax that has been determined in the manner provided by Section 7(1) of the Act and the proviso thereto, seems to be of no substance. One of the impugned notices for the period from January, 1970, to December, 1970, (sic) the return was filed by the said Sambhu Charan Sen. It has, however, been stated in that notice that the return was filed by the appellants. That statement is not correct, for the period referred to in the notice relates to the period during which the said Sambhu Charan Sen was alive. The appellants not being the retail dealers while Sambhu Charan Sen was alive, the said notice was bad. It has been observed by the learned Judge that such a mistake in the impugned notice does not in any manner affect the validity of the same. We are, however, unable to subscribe to this view. If the appellants as the transferees were liable to be assessed in respect of the return filed by the deceased retail dealer, in that case, such a statement in the impugned notice could be ignored as a mistake not affecting the validity of the same. Indeed, the proviso to Section 7(1) requires that the retail dealer should be given an opportunity of being heard in respect of the return filed by him. Respondent No. 1, therefore, had no other alternative than to state in the impugned notice that the return was filed by the appellants treating them as the retail dealers. It was not, therefore, a case of mistake as thought by the learned Judge.

10. The learned Judge is of the view that the power to quantify or determine the liability in the specified cases mentioned in Sub-section (1) of Section 7 must be implied in Sub-section (4) of Section 10 and, accordingly, when such determination or quantification takes place, it should be upon notice to those who would be affected by such determination, that is, in consonance with the principles of natural justice. Further, it has been observed by the learned Judge that, if such a construction is not made, an absurd result would arise in the sense that after the death of a retail dealer there can never be any checking up or determination of what had remained unpaid.

11. We have carefully considered the above reasoning of the learned Judge. The Act has not made any provision for the assessment of the transferee of the deceased retail dealer relating to the return filed by him for the sale of motor spirit. If there be no provision for assessment, the question is whether the court should imply such a provision for the purpose of avoiding an absurd result as observed by the learned Judge. In State of Punjab v. Jullundur Vegetables Syndicate [1966] 17 S.T.C. 326 (S.C.), the Supreme Court, in considering the question whether a dissolved partnership firm can be assessed, has observed that it is a settled rule of construction that, in interpreting the fiscal statute, the court cannot proceed to make good the deficiencies, if there be any, in the statute. And it shall interpret the statute as it stands and, in case of doubt, it shall interpret in a manner favourable to the taxpayer. In that case, it was held that, in the absence of a statutory provision permitting the assessment of a dissolved firm, there is no longer any scope for assessing the firm, which ceases to have legal existence. The same view has been expressed in a later decision of the Supreme Court in Additional Tahsildar, Raipur v. Gendalal [1968] 21 S.T.C. 263 (S.C.). With respect to the learned Judge, we are unable to imply the provision of Section 7(1) in the provision of Sub-section (4) of Section 10.

12. The word 'unpaid' in Sub-section (4) of Section 10 is significant. So long as the assessment is not made and the amount of tax is determined, it is difficult to say that any amount of tax payable by the retail dealer remains unpaid. What is payable by the transferee under Sub-section (4) of Section 10 is any tax payable under the Act by the retail dealer which remains unpaid at the time of the transfer. If it was intended by the legislature under Sub-section (4) that the transferee shall pay any tax payable by the retail dealer, in that case, the expression 'which remains unpaid' would not have been used. In our opinion, Sub-section (4) of Section 10 contemplates payment of the unpaid amount of tax determined under Section 7(1) during the lifetime of the deceased retail dealer.

13. In these circumstances, we hold that the impugned notices in so far as they relate to the periods during which the said Sambhu Charan Sen was alive are bad. Let a writ in the nature of mandamus issue directing the respondents not to give effect to the impugned notices for such periods. It is made clear that the impugned notices in so far as they relate to the periods after the death of Sambhu Charan Sen are legal and valid and the respondents will be at liberty to give effect to the impugned notices for such periods. The judgment of the learned Judge is modified to the above extent.

14. The appeals are allowed in part, but, in view of the facts and circumstances of the case, there will be no order for costs.

15. After the assessment is made in terms of our judgment, if the appellants pay the amount that will be taxed by the Commercial Tax Officer, Midnapore Charge, the security that has been furnished by the appellants in this Court will stand discharged.

16. The learned Advocate, appearing for the respondents, prays for a certificate for appeal to the Supreme Court under Article 133(1) of the Constitution. In our opinion, the question whether the Bengal Motor Spirit Sales Taxation Act, 1941, permits assessment of the legal representatives of the deceased dealer in respect of returns filed by such retail dealer during his lifetime and the question whether, under Sub-section (4) of Section 10 of the Act, the liability of the retail dealer is only to the extent of the amount that was determined in accordance with Section 7(1) of the Act during the lifetime of the retail dealer which remains unpaid, or it is the liability in respect of the amount that may be assessed after the death of the retail dealer, are substantial questions of law of general importance. In the circumstances, we are of the view that such questions may be decided by the Supreme Court.

17. Accordingly, we direct that the necessary certificate be issued to the respondents under Article 133(1) of the Constitution.

18. As prayed for by the learned Advocate for the respondents, let there be stay of operation of this judgment for four weeks after the Christmas vacation.

19. The interim order as granted by this Court will continue during the above period.

Sharma, J.

I agree.


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