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Sarajini Nag and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberS.A. No. 753 of 1971
Judge
Reported in[1980]45STC260(Cal)
AppellantSarajini Nag and ors.
RespondentState of West Bengal and ors.
Advocates:S.C. Mitter ;and S.P. Roy Chowdhury, Advs.
DispositionAppeal dismissed
Cases ReferredKamala Mills Ltd. v. State of Bombay A.I.R.
Excerpt:
- .....which imposes liability is unconstitutional, or where the order is alleged to be mala fide. a civil suit will lie for obtaining appropriate relief in these cases.11. while deciding the above case, the supreme court referred to the case of mask and co (1940)67 i.a. 222(p.c.).and relied upon its own judgment in the case of dhulabhai v. state of madhya pradesh a.i.r. 1969 s.c. 78. in that case (dhulabhafi), the supreme court took note of and discussed the diverse views earlier expressed by that court and set out certain principles relating to the jurisdiction of the civil court. in laying down the principles, the court principally relied upon its earlier decision in the case of kamala mills ltd. v. state of bombay a.i.r. 1965 s.c. 1942, as it was heard by a special bench of 7 judges......
Judgment:

Monoj Kumar Mukherjee, J.

1. The plaintiffs brought the suit for declaration that a certificate issued under the Public Demands Recovery Act for realisation of sales tax dues from them was illegal, ultra vires and without jurisdiction and for setting aside and cancellation of the said certificate. The plaintiffs also prayed for an injunction restraining the respondent, the State of West Bengal, from executing such certificate for realisation of sales tax and/or dues for the year 1367 B.S. and for subsequent years.

2. The case of the plaintiffs, in short, was that one Nityananda Nag, since deceased, used to run a sweetmeat shop under the name and style of 'Desh-bandhu Mistana Bhandar' in the town of Burdwan. Owing to his old age and various ailments, he closed down the business and duly intimated the commercial tax authorities the fact of such closure by surrendering his registration certificate being No. B.N. 597A. Thereafter, Nityananda trans--ferred the goodwill of the business by a deed of gift in favour of the plaintiffs. The plaintiffs, in the later part of 1973, with their own capital, started the business afresh under the same name and style as the goodwill was transferred to them. According to the plaintiffs, Nityananda did not transfer his business absolutely to the plaintiffs and the building in which he used to carry on his business and the furniture lying therein were transferred to his two sons, Bijoy Chandra Nag and Basanta Kumar Nag, and the plaintiffs were tenants under them. The aforesaid business of the plaintiffs had no taxable sale and turnover and, as such, they were not at all liable to pay any sales tax, nor was any registration certificate necessary for the plaintiffs to run the business and the shop. In the year 1367 B.S., a certificate of demand for arrears of sales tax amounting to Rs. 676.95 was served upon the plaintiffs under Section 7 of the Public Demands Recovery Act, calling upon them to pay the said amount as transferee of the whole business of Nityananda Nag and, in the certificate of demand, the registration number of Nityananda was shown against the name of the plaintiffs even though the registration certificate was surrendered by Nityananda Nag when he closed down his business. The plaintiffs filed objection under Section 9 of the Public Demands Recovery Act denying their liability on the ground that they were not the transferees of the business of Nityananda Nag and they never carried on such business as such transferees. The Certificate Officer upheld the objection of the plaintiffs,but the appeal preferred against the said decision by the respondent-State was allowed. The plaintiffs thereafter preferred a revision before the Commissioner, Burdwan Division, but the same was dismissed. It was further alleged in the plaint that the plaintiffs were being harassed by successive distress warrants issued by the certificate department of the Government arising out of case No. 11 S.T. of 1965-66 and so they were obliged to file the suit after serving a notice under Section 80 of the Civil Procedure Code.

3. The State of West Bengal contested the suit by filing a written statement. A preliminary objection as to the maintainability of the suit was taken on the ground that the civil court had no jurisdiction to entertain the suit in view of the provisions of Section, 19 of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act). It was further contended that the ownership of the business of the registered dealer, Nityananda Nag, was transferred to the plaintiffs by a deed of gift dated 8th March, 1963, and an intimation about the same was given to the Commercial Tax Officer by a letter dated 11th May, 1964. The plaintiffs filed an application under Section 7 read with Section 17 of the Act and the Commercial Tax Officer decided the plaintiffs to be the transferees and amended the registration certificate accordingly. On such amendment, additional tax was assessed upon the registered dealer 'Deshbandhu Mistana Bhandar' for the quarter ending Chaitra, 1367 B.S., and demand notice was served upon them on 26th May, 1965. As the dealer failed to pay the taxes, a certificate case No. 11 S.T. of 1965-66 was started against the dealer. The matter went up to the Commissioner of the Burdwan Division, but the plaintiffs, having failed to obtain any relief, filed the speculative suit. On the above averments, the State of West Bengal prayed for dismissal of the suit.

4. On the pleading of the parties, the following two principal issues were framed by the learned trial court:

(1) Has the civil court jurisdiction to try the suit?

(2) Is the impugned certificate valid and legal or liable to be cancelled or amended or set aside?

5. The learned Munsif answered the first issue in favour of the plaintiffs but, as regards the other issue, the learned Munsif found, on construction of the deed of gift and other evidence adduced by the parties, that there was absolute transfer of the business and, therefore, the plaintiffs were liable to pay the sales tax assessed as transferees in view of the provisions of Section 17 of the Act. Accordingly, he dismissed the suit with costs.

6. In the appeal preferred by the plaintiffs, the learned Subordinate Judge overruled the decision of the learned Munsif so far as the first issue was concerned, as, according to the learned Subordinate Judge, Section 19 of the Act was a bar to the institution of the suit. Regarding the other issue, the learned Judge concurred with the finding of the learned Munsif that the plaintiffs were the transferees of the business and they were liable to pay the sales tax. Accordingly, the appeal was dismissed.

7. In assailing the judgment of the learned lower appellate court, Mr. Mitter, the learned Advocate appearing for the plaintiffs, firstly contended that, in view of the cause of action of the plaintiffs' suit, the jurisdiction of the civil court was not barred under Section 19 of the Act. As regards the merits, Mr. Mitter contended that a plain reading of the deed of gift will make it unmistakably clear that it was not a case of absolute transfer of the business, but only the goodwill thereof and, therefore, the commercial tax authorities were not competent to saddle the plaintiffs with the liabilities of Nityananda Nag by invoking Section 17 of the Act.

8. To appreciate the validity of the contention of Mr. Mitter regarding the threshold jurisdictional question, it will be necessary to refer to the relevant provisions of the Act. Section 11 empowers the authorities to assess tax and provides the general mode of realisation of the same. Section 14 empowers the authorities to require any dealer to produce books of account and documents as also to search the dealer's premises. Section 17 provides, inter alia, that where the ownership of the business of a registered dealer is transferred absolutely by sale, gift, bequest, inheritance or otherwise, and the transferee carries on such business either in its old name or some other name, the transferee shall be deemed, for the purpose of the Act, to be and to have always been registered as if the registration certificate of such dealer had initially been granted to the transferee, and the transferee shall, on application to the Commissioner, be entitled to have the registration certificate amended accordingly. Section 19 is the inhibitive provision and, in certain proceedings, it puts a bar to civil courts from exercising jurisdiction. The bar operates in respect of assessment made and orders passed under the Act or the Rules made thereunder by the Commissioner or any person appointed under Section 3 to assist him. It also provides that no appeal or application for revision or review shall lie against any assessment or order except as provided in Section 20 of the Act. Section 20 in its turn entitles a dealer to appeal to the prescribed authority against any assessment and also provides for revision and review.

9. Mr. Mitter contended that, as, in the instant case, there was no absolute transfer of business, the sales tax authorities had no jurisdiction to take recourse to the provisions of Section 17. Mr. Mitter argued that when an order is passed without jurisdiction such an order cannot be labelled as an order under the Act and, therefore, the civil court had jurisdiction to entertain the suit, notwithstanding the provision of Section 19 of the Act. In support of his contention, Mr. Mitter referred to the following passage from the decision of the Privy Council in the case of Secretary of State for India v. Mask and Co (1940) 67 I.A. 222 (P.C.).

It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well-settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

10. Mr. Mitter next drew my attention to the following observation of the Supreme Court made in the case of Union of India v. A.V. Narsimhalu [1970] 2 S.C.R. 145.

We, however, deem it necessary to observe that the civil courts have jurisdiction to examine cases in which the customs authority has not complied with the provisions of the statute or the officer of customs has not acted in conformity with the fundamental principles of judicial procedure or the authority has acted in violation of the fundamental principles of judicial procedure or he has made an order which is not within his competence or the statute which imposes liability is unconstitutional, or where the order is alleged to be mala fide. A civil suit will lie for obtaining appropriate relief in these cases.

11. While deciding the above case, the Supreme Court referred to the case of Mask and Co (1940)67 I.A. 222(P.C.).and relied upon its own judgment in the case of Dhulabhai v. State of Madhya Pradesh A.I.R. 1969 S.C. 78. In that case (Dhulabhafi), the Supreme Court took note of and discussed the diverse views earlier expressed by that court and set out certain principles relating to the jurisdiction of the civil court. In laying down the principles, the court principally relied upon its earlier decision in the case of Kamala Mills Ltd. v. State of Bombay A.I.R. 1965 S.C. 1942, as it was heard by a Special Bench of 7 Judges. As the case of Kamala Mills Ltd. A.I.R. 1965 S.C. 1942. related to the Bombay Sales Tax Act, more particularly Section 20 thereof, which is pari materia with Section 19 of the Act, and the law in this respect has been thoroughly discussed therein, it can be more profitably looked into, as the passages referred to by Mr. Mitter lay down the general proposition of law.

12. The appellant, in that case, instituted a suit on the Original Side of the Bombay High Court and claimed to recover a certain sum of money from the respondent on the ground that it had been illegally levied against it by the sales tax authorities. The suit was dismissed on the ground that Section 20 of the Bombay Sales Tax Act was a bar to the institution of the suit. The appellant challenged the correctness of the above decision by preferring an appeal before the Division Bench of the said High Court, but the same was dismissed. The appellant then applied for and obtained a certificate from the said High Court and it was with that certificate that they came up before the Supreme Court. It was contended that Section 20 had no application because the order of assessment, which the appellant sought to challenge, had been made by the sales tax authority without jurisdiction, as part of the sales was outside the jurisdiction of the State. It was further contended that when the appropriate authority purported to levy the tax in respect of the transactions in question, it was attempting to assess outside sales and, since the said assessment contravened Article 286 of the Constitution, it was invalid and the order was without jurisdiction and, as such, a nullity. To decide the validity of the above contention, the Supreme Court raised the following questions:

Is the decision about the character of the transaction the decision of a collateral fact, the finding on which alone confers jurisdiction on the tribunal to levy the tax, or is it the decision on a question of fact which is left to be determined by the appropriate authority itself

and answered the same itself with these following words:

If the jurisdiction conferred on the appropriate authority falls under the first category, then its finding that a particular transaction is taxable under the relevant provisions of the Act, would be a finding on a collateral question of fact, and it may be permissible to a party aggrieved by the said finding to contend that the tax levied on the basis of an erroneous decision about the nature of the transaction is without jurisdiction. If, however, the appropriate authority has been given jurisdiction to determine the nature of the transaction and proceed to levy a tax in accordance with its decision on the first issue, then the decision on the first issue cannot be said to be a decision on a collateral issue, and even if the said issue is erroneously determined by the appropriate authority, the tax levied by it in accordance with its decision cannot be said to be without jurisdiction.

13. In the light of the above principle, it is now to be ascertained whether in the instant case the assessment order was without jurisdiction, so as to entitle the plaintiffs to seek remedy in the civil court. The records disclose that Nityananda Nag filed an application praying for cancellation of his registration in accordance with the provisions of Section 7(6) of the Act on the ground that he had closed down the business. While dealing with this application it was brought to the notice of the authorities that there was a transfer of the business to the plaintiffs by a deed of gift. In interpreting the deed of gift, the authorities found that there was an absolute transfer and not of the goodwill only, as contended by the plaintiffs and, on such interpertation, held the plaintiffs liable to assessment under Section 17 of the Act. The appropriate authorities have been given jurisdiction under Section 7(6) of the Act to determine whether the business was closed, as contended by the registered dealer, and to cancel the registration. This power of determination, therefore, emanates from the Act itself and if, in determining this question, the appropriate authority wrongly interprets a deed or document then it will be an erroneous decision of the authority while exercising powers under the statute but not a decision without jurisdiction.

14. From the foregoing discussion, it must be held that the assessment order that was passed against the plaintiffs was an order under the Act and, as such, in view of the bar under Section 19 of the Act, the suit was not maintainable. On this ground alone, the appeal fails and the same is hereby dismissed. As there is no appearance on behalf of the respondents, there will be no order as to costs.


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