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State of West Bengal and ors. Vs. Hind Tea Company (P.) Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtKolkata High Court
Decided On
Case Number F.M.A. No. 362 of 1978
Judge
Reported in[1984]57STC97(Cal)
AppellantState of West Bengal and ors.
RespondentHind Tea Company (P.) Ltd. and ors.
Appellant Advocate Samarendra Nath Dutta, Adv.
Respondent Advocate Debash Chandra Mukherjee, ; Jayanti Mukherjee and ; Alochaya Sen, Advs. for respondent No. 1
DispositionPetition dismissed
Cases ReferredState of Orissa v. M. A. Tulloch
Excerpt:
- m.n. roy, j.1. the state of west bengal and other authorities under them and belonging to the commercial tax department, who were respondents nos. 1 to 4 in civil rule no. 2941(w) of 1970, have impeached in this appeal a determination made on 22nd april, 1975, in the said civil rule.2. respondent no. 1, in this appeal who was petitioner in the said rule, moved and obtained the same on 8th may, 1970, challenging the assessment order and demand notice for the year ending 31st december, 1966. the particulars of the said assessment order and the concerned demand notice would be disclosed hereafter. the petitioners in the rule, viz., m/s. hind tea company limited, who as mentioned hereinbefore, are respondent no. 1 would hereinafter referred to as the said company.3. it was claimed that the.....
Judgment:

M.N. Roy, J.

1. The State of West Bengal and other authorities under them and belonging to the Commercial Tax Department, who were respondents Nos. 1 to 4 in Civil Rule No. 2941(W) of 1970, have impeached in this appeal a determination made on 22nd April, 1975, in the said civil rule.

2. Respondent No. 1, in this appeal who was petitioner in the said rule, moved and obtained the same on 8th May, 1970, challenging the assessment order and demand notice for the year ending 31st December, 1966. The particulars of the said assessment order and the concerned demand notice would be disclosed hereafter. The petitioners in the rule, viz., M/s. Hind Tea Company Limited, who as mentioned hereinbefore, are respondent No. 1 would hereinafter referred to as the said company.

3. It was claimed that the said company was a public limited one and their original name was 'Hindoo Tea Company Limited' and subsequently such name was changed to the name of the said company as mentioned hereinbefore, in July, 1949. The said company has further been stated to be a registered dealer under the provisions of Bengal Finance (Sales Tax) Act, 1941, as amended (hereinafter be referred to as the said Act). It has also been stated that the business of the said company was and is mainly the growing and manufacture of tea at its own tea estates, for sale, and they sell tea direct to their customers and also by auction through M/s. W. S. Cresswell & Company (P) Ltd., who were respondent No. 5 in the rule, and who were not appearing in this appeal, in terms of or in accordance with the age-old rules, regulations, practice, procedure, convention, custom and usages for the necessary auction sales as framed and/or followed by the Calcutta Tea Traders' Association, who were respondent No. 6 (hereinafter be referred to as the said association) in the rule and who are not also appearing in this proceeding. It has also been stated that the said respondent No. 5, is a broker-member of respondent No. 6 as mentioned above and they are hereinafter be referred to as the said broker and the said Association respectively.

4. The said company has also stated that following such age-old practice as mentioned above and which according to them has continued for more than 100 years, since the inception of the said association, they have consigned to the said broker, various number of chests containing tea on the basis of the issue of pro forma invoices to the said broker, and thereafter, the said broker, like the other broker-members of the said association, conducted the auction sales for such tea as mentioned above, in one or more than one lots and issued one 'accounts sales statement' to the said company in respect of each of the concerned pro forma invoices. Such accounts sales statement, according to the said company, would show firstly, gross sale proceeds for all the chests of tea sent by the said company under a particular invoice and sold in one or various lots by the said broker, secondly, the service and/or selling charges incurred by the broker relating to some pro forma invoices, some of which are computed at fixed rate irrespective of number of chests sold in lots covered by the concerned accounts sales, thirdly, brokerage payable to the said broker and fourthly, the net proceeds receivable by the said company in respect of the concerned pro forma invoices. It was the further case of the said company that they as usual, on 10th May, 1966, filed the return in form IIIA of Section 10 of the said Act and the Rules as framed thereunder for the year ending 31st December, 1965, showing gross turnover and taxable turnover according to their books of account and other documents, which were and are maintained in the usual course of business and the tax payable on such return according to the said company was Rs. 231.40 only.

5. It would appear that in that return as aforesaid, a true copy whereof was annexed as annexure C to the petition of motion, the said company declared gross turnover of Rs. 7,50,835.61. The total value was mentioned as Rs. 7,91,188.02 and a sum of Rs. 40,352.41 was claimed on account of service and selling charges. On the basis as aforesaid, the said company has claimed to have appropriately asked for total deduction of Rs. 7,45,977.67 under Section 5(2)(a)(i)(ii) and (vi) respectively of the said Act read with proviso (a) to Rule 3(30) of the concerned Rules and according to them, the amount as mentioned above, in law and fact, represented either sales of exempted goods or sales to registered dealer directly or sales through the said broker by auction held in Calcutta under the auspices of the said association. In fact, the said company has stated that finally an amount collectively at Rs. 7,25,002.71 was claimed under the provisions of the said Act as mentioned above. The provisions of Rule 3(30)(a) which was available and applicable at the relevant time are quoted hereunder :

(30) Sales of tea made at auction held in Calcutta under the auspices of the Calcutta Tea Traders' Association on or after the 28th October, 1959, to a registered dealer :

Provided that a dealer who wishes to make under this sub-rule a deduction of his turnover in respect of any such sale from his gross turnover shall, on demand, produce-

(a) in the case of a sale made through a broker-member, a copy of the relevant account of sale rendered by the broker-member and a declaration in writing signed by the broker-member or by such other person as may be authorised in writing in this behalf by the broker-member that the goods in question are specified in the certificate of registration of such broker-member and have been sold to registered dealers authorised under their respective certificates of registration to purchase tea either for resale or for use in the manufacture of goods for sale; or

(b) in any other case, a copy of the relevant cash memo, or bill or invoice according as the sale is a cash sale or a sale on credit and a declaration in form XXIV obtained by the purchasing dealer from the appropriate Commercial Tax Officer and duly filled in and signed by the purchasing dealer or by such other person as may be authorised in writing in this behalf by the purchasing dealer.

Explanation.-In this sub-rule 'broker-member' means a registered dealer who is a broker-member of the Calcutta Tea Traders' Association.

6. We have quoted Rule 3(30)(b) also, as some arguments were sought to be advanced at the Bar on the basis of the contents of the same.

7. The said company has stated that after the filing of the return as mentioned above, the Commercial Tax Officer concerned being respondent No. 1 in the rule initiated assessment proceeding under Section 11(1) of the said Act and after some adjournments, he finally fixed the hearing of the proceeding on 7th November, 1969, and on that date, on examination of the books of account the said respondent accepted the figures as shown in the concerned return as gross turnover and deduction as claimed on the basis thereof under Section 6(2)(a)(i) and (ii) of the said Act respectively. Regarding the claim for deduction of Rs. 4,60,884.54 under Section 5(2)(a)(vi) of the said Act, the said company has stated that they, as usual, produced before the respondent as mentioned above, the accounts sales issued by the said broker relating to each of the pro forma invoices issued by the said company for chests of tea sent on consignment to the said broker for sales by auction in one or more than one lots and other particulars furnished by the said broker as prescribed under the said Rule 3(30)(a) of the said Rules.

8. It has been asserted by the said company that although their claims for such deduction were allowed on production of some accounts sales containing similar declaration of the said broker at the time of assessment for the previous years till 1963 by the predecessor in office of respondent No. 1, the said respondent for the first time, refused to allow the claim for the year ending 31st December, 1964, on the plea that such accounts sales should be furnished for each lot of auction sales through the said broker and not one accounts sales for more than one lots of such auction sales. It has further been alleged that besides the concerned accounts sales, the said company also produced before the respondent-Commercial Tax Officer concerned, at the time of the assessment for the year 1964, a letter dated 6th May, 1967, issued by the said broker in reply to the said company's letter dated 2nd May, 1967, for the purpose of explaining to the officer concerned that the age-old practice and procedure by the said broker and other broker-members of the said association and which indicated that sales of tea by auction was fully implemented by compilation of accounts sales as shown to the said officer by the said company and the same also fully satisfied the terms of the proviso to Sub-rule (a) of Rule 3(30) of the Rules. The copies of the correspondences as mentioned above, have been disclosed with the original petition. The said company have stated that on enquiry, they have learnt that on production of similar accounts sales furnished by the said broker and other broker-members of the said association, the claims of other fellow dealers and/or manufacturers of tea like that of the said company, deductions have been allowed under Section 5(2y(a)(vi) read with Rule 3(30) as indicated above. It was the further case of the said company that on such basis, they contended before the officer concerned, that similar deduction like those other fellow dealers and manufacturers should also be given to them and that too on following the age-old practice, usage and custom as mentioned above.

9. It was contended, that in spite of such evidence and claims, the officer concerned, by the impugned order of assessment dated 6th September, 1967, made in case No. 469/66-67 under Section 11(1) of the said Act, for the year 1964 allowed the said company's claim for deduction under Section 5(2)(a)(vi) of the said Act read with Rule 3(30) of the Rules for Rs. 60,532.42 only and disallowed Rs. 33,23,532.79 being the balance of the concerned claim and thus also included in such disallowances Rs. 25,885.28, representing the service and/or selling charges and imposed a tax of Rs. 15,950.34, although according to the said company the tax payable, if at all, for the concerned return for 1964 was Rs. 66.20 only. The assessment order has been disclosed as annexure F to the petition of motion. On the basis of such assessment for the concerned year, the respondent-Commercial Tax Officer also served on 18th September, 1967, a demand notice in form VII bearing No. 3G/368-A/8401 dated 13th September, 1967, under Rule 55 of the Rules of the said Act, demanding a sum of Rs. 15,884.14 for the balance of the assessed tax after adjustment of the tax already paid by the said company with the return for the year ending 31st December, 1964. The concerned demand notice has also been disclosed as annexure G to the original petition. The said company has further stated that by the demand notice as mentioned above, the respondent-Commercial Tax Officer has also threatened them to impose penalty under Section 11(4B) of the said Act and also to start certificate proceeding against them in case of failure to pay the demand as raised.

10. It was the case of the said company that on receipt of the demand notice as mentioned above, they on 25th September, 1967, applied for the certified copy of the impugned assessment order for 1964 and received the same through post from the respondent-Commercial Tax Officer on 11th January, 1968. It was their further case that only then they came to know for the first time, that the respondent-Commercial Tax Officer had rejected their claim under Section 5(2)(a)(vi) of the said Act read with Rule 3(30) of the Rules, although the books of account with supporting evidence as claimed for in terms of the proviso (a) to that rule, were duly produced and on the basis whereof, the prodecessor-in-interest of the concerned respondent-Commercial Tax Officer allowed such claim in the earlier assessment orders till 1963 and similar allowances have also been given to other sister organisations.

11. It has been stated that thereafter, on due demand of justice being made, the said company moved two applications under Article 226 of the Constitution of India for the two years ending 31st December, 1960, and 31st December, 1964. It has also been stated that those rules as obtained, were numbered as Civil Rule Nos. 4235 (W) of 1968 and 4244 (W) of 1968. It was also the case of the said company that in those two rules their prayers for the grant of injunction were allowed, initially without any condition for a limited period and it was directed that such injunction as issued, would continue on furnishing bank guarantees. The said company has stated on furnishing guarantees, the interim orders as made, were directed to be continued till the disposal of those rules. The said company has further stated that the fact of issuance of the injunctions as indicated above and their continuance were appropriately communicated to the authorities concerned and thereafter, the said company approached the respondent-Commercial Tax Officer concerned, with the request that he should not make similar assessment for the next year ending 31st December, 1965, and more particularly on such point, which now are sub judice before this Court in the rules as mentioned above. It has been stated that the representative of the said company also requested the Commercial Tax Officer concerned not to disallow the declaration form in the same manner as in the previous assessment orders for the years ending 1960 and 1964 which were the subject-matter of decision in the civil rules as mentioned above and those were sub judice. It has been alleged that in spite of the knowledge of the pendency of the proceedings and injunctions as mentioned above and the repeated requests as made in the manner as indicated above and more particularly not to similarly disallow the claim for the year ending 31st December, 1965, under Section 5(2)(a)(vi) of the said Act read with Rule 3(30)(a) of the Rules till the disposal of the civil rules as mentioned above, the respondent-officer by his assessment order dated 7th November, 1969, made under Section 11(1) of the said Act in Case No. 23 of 66-77 for the year ended 31st December, 1965, allowed the said company claim for deduction for Rs. 69,872.23 only, out of the total claim as shown in the return for that year and disallowed the balance claim, which again was wrongly computed at Rs. 4,30,871.85, on the same plea which were in issue in the other two civil rules as mentioned above. The assessment order has been disclosed as annexure 0 to the original petition. The claim of Rs. 69,872.23 which was allowed, has been contended by the said company to be in fact including Rs. 10,804.43 for service or selling charges and according to them, the respondent-Commercial Tax Officer should have correctly calculated such figure at Rs. 4,01,816.72 and not at Rs. 4,30,878.85. It has further been claimed that the officer concerned has also wrongly imposed tax of about Rs. 29,062.13, i.e., the difference between the correct and incorrect calculation of such disallowances, which represented service and selling charges. In fact, for such inaction or inappropriate action, the said company has claimed to have suffered doubly for no fault on their part. It would appear from the statement as made in the petition that in terms of the concerned impugned assessment order as mentioned above, the respondent-Commercial Tax Officer had also served the said company on 27th November, 1969, a demand notice in form VII and bearing No. SG/368A/6438 dated 21st November, 1965, under Rule 55 of the concerned Rules, demanding Rs. 20,520.23, for the balance of the assessed tax after adjustment of the tax of Rs. 231.40 as already paid by the said company with the return.

12. The affidavit-in-opposition, which was dated 30th May, 1973, was filed on behalf of respondent Nos. 1 to 4 in the rule by Shri Nihar Ranjan Basu, Charge Officer of the office of the Commercial Tax Officer, Siliguri. The deponent has claimed that he is well acquainted with the facts of the case. He has claimed that tea is sold at Calcutta by auction and each lot is either sold separately or independently and thus, the auction of each lot constitutes a separate sale. According to him, at the time of assessment reference was made to Rule 3(30)(a) of the Rules as quoted hereinbefore and the said company was asked to produce separate account sales and separate declaration for sales of each lot apart from asking them to show cause as to why their claim for deduction should not be disallowed, if such separate account and separate declaration was not furnished in respect of each lot. The deponent has stated that the said company prayed for time and threreafter produced a letter from the said broker, the particulars whereof have been indicated hereinbefore and they also informed the authorities concerned that it would not be possible for them to produce separate account sales for each buyer, who purchased separately. It was also claimed by the deponent that since there was no injunction against the present assessment in the two rules as mentioned above, the assessment as made, was not unauthorised, but the same was absolutely legal, valid and proper. According to him, the tax in the instant case, has been imposed duly and in accordance with law and he has further stated that the disallowance of the claim, as has been done, was appropriate. It was his further case that there was no illegality or any irregularity and unauthorised use of power, in the matter of making the assessment as involved or in the matter of issuing the demand notice in this case. He has also stated that principles of natural justice has not been violated in the instant case and concerned petition for rule, was not maintainable.

13. Such opposition was replied to by the said company through their affidavit dated 24th January, 1975.

14. By the order as impeached, the learned Judge has also made the rule absolute in view of his determination in Civil Rule No. 4235(W) of 1968 and Civil Rule No. 4244 (W) of 1968, as delivered by him on 1st September, 1972.

15. Since the main reasons of the learned Judge were incorporated in the judgment in the concerned civil rules as indicated above, those judgments were sought to be looked into and in fact, F. M. A. No. 666 of 1977 which was taken against the decision in Civil Rule No. 4244(W) of 1968 was placed for hearing along with this appeal. So far the other Civil Rule No. 4235(W) of 1968, it appeared that no appeal has been preferred. In fact, Mr. Dutta, appearing for the appellants in this appeal, stated that he has no instruction as to whether that any such appeal has been preferred. But, Mr. Mukherjee, after having necessary inspection of the records stated that in fact no such appeal has been preferred. We are referring to the above circumstances, as lengthy arguments were advanced by Mr. Mukherjee on application of principles of res judicata or principles analogous thereto in the instant case and claimed that since no appeal has been taken from the determination in Civil Rule No. 4235(W) of 1968 and the present determination has been made on the basis of reasons as shown therein, this appeal should be held and deemed to be not maintainable and that too on the application of the principles of res judicata as mentioned above.

16. Mr. Mukherjee, while on the question of res judicata and the non-maintainability of the present appeal on that ground, stated that as on the same facts and circumstances, a case of the said company and which was decided on merits in Civil Rule No. 4235(W) of 1968 which was relevant for the assessment year ending 31st December, 1960, so Section 11 of the Code of Civil Procedure would be a bar in maintaining this appeal, as under that provisions no Court shall try any suit or issue in which a matter has been directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claimed, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally 'decided by such Court. It was also contended by him, since res judicata is not only a rule of law but it is a sound principle of public policy so also this appeal should not be entertained, as the point in issue between the same parties for an earlier period have been decided on merits by a competent authority. At this point of time Mr. Dutta raised a point that since a proceeding under Section 141 of the Code would include a proceeding under Order IX, but does not include any proceeding under Article 226 of the Constitution of India, so, submissions of Mr. Mukherjee were of no avail or any assistance, as the provisions of Section 11 as mentioned hereinbefore, would not be applicable in this proceeding which has arisen out of a proceeding under Article 226 of the Constitution of India. Such exemption of applicability of the Code of Civil Procedure has been inserted by the explanation to Section 141 which was inserted in 1976 and that being the position, Mr. Mukherjee contended that as the determinations in the instant case were made prior to 1976 and the appeal in the instant case was taken out, from a proceeding which was admittedly decided long prior to the coming into force or incorporation of the said explanation to Section 141. The provisions of the Code have application, the more so when, the explanation to Section 141 as inserted, cannot go or relate back prior to 1976. It was in fact contended by Mr. Mukherjee that as the finality in the instant proceeding was reached or arrived at prior to the coming into force or incorporation of the explanation to Section 141, the principle of res judicata as mentioned hereinbefore, would have application in this case. He contended that the explanation to Section 141, not being retrospective, will have no application in this case. It should be noted that admittedly, no appeal has been preferred against the said determination in Civil Rule No. 4235 (W) of 1968.

17. In support of his submissions on res judicata or the applicability of the principles analogous thereto, Mr. Mukherjee firstly, referred to the case of Devilal Modi v. Sales Tax Officer, Ratlam : [1965]1SCR686 , where, while dealing with the principles of constructive res judicata and the applicability of the same to writ proceeding, it has been observed that though Courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by the Supreme Court are binding and must be regarded as final between the parties in respect of matters covered by them, must receive due consideration. In that case the assessee challenged the validity of sales tax imposed upon him for a particular year by a petition under Article 226. The petition was rejected upon merits. An appeal was also dismissed by .the Supreme Court upon merits. The assessee had attempted to raise two more additional grounds before the Supreme Court. But the Supreme Court did not allow them on the ground that they had not been specified in the writ petition before the High Court and had not been raised at an earlier stage. Subsequently by writ petition under Article 226 before the High Court the assessee once again challenged the same assessment order but on grounds which the Supreme Court had not permitted to be raised by the .assessee in the appeal before them in the previous writ petition. The High Court rejected the petition on merits and on appeal to the Supreme Court it has been observed that the second writ petition was barred by constructive res judicata. It has also been observed that the result of the decision of the Supreme Court in the earlier appeal brought by the assessee before it was clear and unambiguous and that was that the assessee had failed to challenge the validity of the impugned order which had been passed against him. In other words, the effect of the earlier decision of the Supreme Court was that the assessee was liable to pay the tax and penalty imposed on him by the impugned order. It would be unreasonable to suggest that after this judgment was pronounced by the Supreme Court, it should still be open to the assessee to file a subsequent writ petition before the High Court and urge that the said impugned order was invalid for some additional grounds. In case the High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of the Supreme Court, and that would be inconsistent with the finality which must attach to the decisions of the Supreme Court as between the parties before it in respect of the subject-matter directly covered by the said decision. If constructive res judicata were not applied to such proceeding, a party could file as many writ petitions as he liked and take one or two points every time. That clearly was opposed to considerations of public policy on which res judicata was based and would mean harassment and hardship to the opponent. Besides, if such a course were allowed to be adopted the doctrine of finality of judgments pronounced by the Supreme Court would also be materially affected. Mr. Mukherjee secondly placed reliance on the observations in the case of Raja Bahadur Visheshwara Singh v. Commissioner of Income-tax, Bihar and Orissa : [1961]41ITR685(SC) . In that case, the appellant who was a big zamindar invested his cash surplus in shares and securities. From 1930 to 1941-42 he purchased shares to the value of Rs. 14.92 lakhs and even though he made certain profits by the sale of some shares in 1936-37 and 1939-40 they were not assessed to income-tax. In July, 1940, he borrowed the sum of Rs. 10 lakhs and made further purchases and sales of shares and securities. For the assessment year 1942-43 he made a profit of Rs. 33,174, for 1944-45 Rs. 2,62,000 and odd, for 1945-46 Rs. 3,95,000 and odd, for 1946-47 Rs. 1,57,000 and odd, for 1947-48 Rs. 1,33,000 and odd, and for 1948-49 Rs. 76,000. Considering the magnitude and frequency of the transactions and the ratio of sales to purchases and total holdings the Appellate Tribunal held that the appellant must be regarded as a dealer in shares and securities and that the profits for the years 1944-45 to 1948-49 were assessable to income-tax, and the High Court, on a reference, held that there was sufficient material to support the finding of the Appellate Tribunal and on appeal to the Supreme Court it has been observed (i) that if on the evidence which was before the Tribunal, i.e., the substantial nature of the transactions, the manner in which the books had been maintained, the magnitude of the shares purchased and sold and the ratio between the purchases and sales and the holdings, the Tribunal came to the conclusion that there was material to support the finding that the appellant was dealing in shares as a business, it could not be interfered with by the High Court; (ii) on the facts, that the High Court was right in holding that there was sufficient material to support the finding of the Appellate Tribunal; (iii) that the fact that the Appellate Tribunal had not treated the appellant as a dealer in shares for the assessment year 1941-42 and his profits from the purchase and sale of shares for that year had not been assessed to tax did not operate in any way as res judicata or preclude the Tribunal from holding that he was a dealer in shares for the years 1944-45 to 1948-49. Apart from holding that when an owner of an ordinary investment chooses to realise it and obtains a higher price for it than he originally acquired it at, the enhanced price is not a profit assessable to income-tax but where what is done is not merely a realisation or a change of investment but an act done in what is truly the carrying on of a business the amount recovered as appreciation will be assessable. Thereafter and thirdly, Mr. Mukherjee made a reference to the determinations in the case of Haji Esmail Noor Mohammad & Company v. Competent Officer, Lucknow AIR 1967 SC 1244 where while deciding the question of applicability of res judicata in writ proceeding under articles 32 and 226 of the Constitution of India, it has been observed that when relief are asked for in writ petition to the Supreme Court similar to those as asked for in appeal before the High Court, the findings in appeal will be binding in writ petition. In fact, Mr. Mukherjee referred to paragraph 9 of the determinations where the above observations have been made. After that and fourthly, Mr. Mukherjee referred to the case of the Virudhunagar Steel Rolling Mills Ltd. v. Government of Madras AIR 1968 SC 1196 wherein, it has been observed that where a writ petition under Article 226 is disposed of on merits and the order of dismissal of the petition is a speaking order, that would amount to res judicata and would bar a petition under Article 32 on same facts, irrespective of whether a notice was issued to the other side or not before such decision was given. The petitioner's only proper remedy in such a case would be to come in appeal from such a speaking order passed on merits. Fifthly, Mr. Mukherjee referred to the observations in the case of State of Punjab v. Bua Das Kaushal : (1971)ILLJ31SC which lays down that the decision in a writ petition operates as res judicata in subsequent suit on the same matter and plea of res judicata is not waived if necessary facts were present in the mind of the parties and such facts were gone into by the Court. It has also been observed in that case that the absence of specific plea in written statement and framing of specific issue of waiver by Court would be immaterial. The sixth case to which reference was made while on this point, was that of Metal Corporation of India Ltd. v. Union of India : AIR1970Cal15 . In that case a mining company which was sought to be acquired by the Central Government under the Metal Corporation of India (Acquisition of Undertaking) Act filed a petition before the Supreme Court under Article 32 of the Constitution for a rule nisi and the ground of attack in that petition was that the Act invaded the petitioner's fundamental right under Article 31(2) of the Constitution. The Supreme Court dismissed the petition in limine. The order of dismissal was not a speaking order. The company subsequently filed a writ petition in the High Court under Article 226 of the Constitution challenging the above act and though several grounds were taken in the petition the main ground canvassed was that the Act was ultra vires Article 31(2) of the Constitution. The respondents contended that parties being the same in both the petitions, the writ petition was barred by res judicata and upholding the contentions of the respondents it was observed that the writ petition was barred by res judicata. It was so, held notwithstanding the fact that the order of the Supreme Court dismissing the petition under Article 32 was not a speaking order. It was still an order on merits for the reason that the right to move the Supreme Court under Article 32 being itself a fundamental right, the Supreme Court would not reject the application on any other ground, namely, laches or the existence of alternative remedy. Therefore, the dismissal of the petition by the Supreme Court in limine must be taken to be a dismissal on the ground that no fundamental right of the petitioner had been violated. Seventhly, Mr. Mukherjee placed reliance on the case of Har Swarup v. General Manager, Central Railway : AIR1975SC202 where while dealing with an application under Article 32 of the Constitution of India, it has been observed that the decision of the High Court operates as res judicata before the Supreme Court if there has been an earlier petition before the High Court claiming same reliefs on same ground. In fact, it has been specifically observed by the Supreme Court that where the reliefs claimed by the petitioner in his writ application filed earlier before the High Court of Bombay were exactly the same as in his writ application before the Supreme Court and the grounds covered were also identical and the High Court held that the petitioner was not entitled to any relief and dismissed his writ application and his application for leave to the Supreme Court was also refused, the petitioner's claim for same reliefs before the Supreme Court in a later writ petition held was barred by the principles of res judicata. The eighth decision to which reference was made by Mr. Mukherjee was the case of Joint Family of Udayan Chinubhai v. Commissioner of Income-tax, Gujarat : [1967]63ITR416(SC) and lastly and ninthly, he referred too the observations in the case of Burmah Shell Refineries Ltd. v. G. B. Chand (Income-tax Officer) : [1966]61ITR493(Bom) . While dealing with Section 141(1) of the Income-tax Act, 1961, it has been observed by the Division Bench of the Bombay High Court in that case, that under Sub-section (1) of Section 141 of the Income-tax Act, 1961, the Income-tax Officer, for the purpose of making a provisional assessment, has to proceed on the basis of the return made by the assessee. The correctness of the return as to the factual position stated in the return has to be accepted for the time being and the assessment should be made on the basis that the facts stated in the return are correct. He has no jurisdiction to enquire into questions of mixed fact and law and if he does so, the assessment and the demand notice based thereon can be quashed by the High Court by issuing a writ. That was a case where the assessee, the Burmah Shell Refineries Ltd., submitted a return and claimed a rebate of 35 per cent on the ground that it was a company engaged in the manufacture or production of 'mineral oil'. For making a provisional assessment, the Income-tax Officer enquired into the question whether refining of crude oil was manufacture or production of mineral oil, and coming to the conclusion that refining crude oil was not manufacturing or producing mineral oil and the assessee was not accordingly a company engaged in the manufacture or production of mineral oil, allowed a rebate of 30 per cent only. The assessee applied to the High Court for a writ quashing the provisional assessment and on such facts it has been held that' the Income-tax Officer acted in excess of his jurisdiction in enquiring into the question whether the assessee's business was one of manufacture or production of mineral oil. For the purpose of making a provisional assessment, he should have accepted the position taken by the assessee and proceeded on that basis. The provisional assessment and the demand notice made in pursuance thereof were liable to be quashed. There has been a obiter recorded in that case that though the Income-tax Officer is not bound by the rule of res judicata or estoppel on record, he can reopen a question previously decided only if fresh facts come to light which on investigation would entitle the officer to come to a conclusion different from the conclusion previously reached or if the earlier decision had been rendered without taking into consideration material evidence. It should be noted here, so far the principles as enunciated in the abovementioned Bombay judgment Mr. Dutta in his usual fairness stated that there cannot be any dispute so far the principles as laid down and as indicated hereinbefore by the concerned decision.

18. Mr. Dutta of course contended that the rule of res judicata or the principles analogous thereto would not appropriately apply in taxing statutes and more particularly when the officer concerned with collection of revenue is not bound by such rule and he can reopen the question previously decided and come to a conclusion different from the previous one. To counteract such submissions of Mr. Dutta apart from relying on the abovementioned Division Bench judgment of the Bombay High Court, Mr. Mukherjee also referred to and relied on another Division Bench judgment of the same High Court in the case of H. A. Shah & Co. v. Commissioner of Income-tax and Excess Profits Tax, Bombay City : [1956]30ITR618(Bom) , where it has been laid down that as a general rule the principle of res judicata is not applicable to decisions of income-tax authorities. An assessment for a particular year is final and conclusive between the parties only in relation to the assessment for that year and the decisions given in an assessment for an earlier year are not binding either on the assessee or the department in a subsequent year. But this rule is subject to limitations, for there should be finality and certainty in all litigations including litigation arising out of the income-tax Act and an earlier decision on the same question cannot be reopened if that decision is not arbitrary or perverse, if it had been arrived at after due inquiry, if no fresh facts are placed before the Tribunal giving the later decision, and if the Tribunal giving the earlier decision has taken into consideration all material evidence. A Tribunal like the Appellate Tribunal, should be extremely slow to depart from a finding given by an earlier Tribunal apart from, holding that there is also a further limitation, namely, that the effect of revising a decision in a subsequent year should not lead to injustice and the Court must always be anxious to aviod injustice to the assessee. For instance, if the Court is satisfied that by depriving the assessee of his rights under the later decision, in an earlier year, the assessee lost an important advantage or lost some benefit which he could have got under the Income-tax Act, then the Court may take the view that departing from the earlier decision leads to injustice or denial of justice and the Court may prevent an income-tax authority from doing something which would be unjust and inequitable and the principles as mentioned above would apply not only to the income-tax authorities strictly so called but also to the Income-tax Appellate Tribunal; for, though the Appellate Tribunal is not included in the class of income-tax authorities in the Act, it is a part of the machinery for collection of income-tax, and is not in the same position as the High Court, the jurisdiction of which is purely advisory. In that case it has further been observed that when a document is material and it has a considerable bearing upon the very issue that the Tribunal has to decide, a complete omission to consider that document may justifiably lead to the inference that that particular document was not considered by the Tribunal in arriving at its conclusion. Apart from, holding that where in the assessment for the years 1941-42, the Appellate Tribunal held that a certain person was a partner in a firm not in his individual capacity but as a trustee for his minor son, but in the assessment for the years 1942-43 to 1944-45, it went into the question in greater detail and after considering the effect of certain documents which were not considered in the assessment year 1941-42, came to the conclusion that he was a partner in his individual right and not as a trustee for his minor son. It has further been observed in that case that under the circumstances it was open to the Tribunal which dealt with the assessment for the years 1942-43 to 1944-45 to reconsider the question and to come to a different conclusion from that arrived at by the Tribunal which decided the question in the assessment for 1941-42. On a reference to the Division Bench judgment of the Bombay High Court as just mentioned above Mr. Mukherjee specifically claimed and contended that the rule that each assessment is a separate proceeding as put forward and claimed to have been a bar by Mr. Dutta in the matter of entertaining the submissions on res judicata as put forward by him in the instant case would have application only when there were no such exception as mentioned in the concerned Bombay judgment reported in H. A. Shah & Co. v. Commissioner of Income-tax and Excess Profits Tax, Bombay City : [1956]30ITR618(Bom) and not otherwise. On the basis of such determinations, Mr. Mukherjee submitted that such submissions of Mr. Dutta as mentioned hereinbefore, would be of no avail or any assistance, as admittedly this case would not come within the few exception as mentioned in the concerned Bombay judgment and there has admittedly been no new documents or any facts.

19. While replying to the submissions of res judicata or the application of principles analogous thereto, apart from his submissions as quoted hereinbefore, Mr. Dutta also contended that the each assessment must be considered to be a separate one and as such should be deemed to be separate proceeding. In support of such submissions he first referred to the observations in the case of Dwarkadas Kesardeo Morarka v. Commissioner of Income-tax, Central Bombay : [1962]44ITR529(SC) . This was a determination dated 25th January, 1961, and made by the Supreme Court, wherein their Lordships have observed that in the matter of assessment of income-tax each year's assessment is complete, and the decision arrived at in a previous year on the materials before them the taxing officer cannot be regarded as binding in the assessment for subsequent years. Therefore, the mere fact that certain shares owned by the assessee were found, during the assessment for a particular year or years, to have been held by the assessee as part of the stock-in-trade of his Business and the profits and losses thereof were included in the taxable income of the assessee, would not preclude the assessing officer from finding, in the assessment for a subsequent year that those shares formed part of the capital investments of the assessee, if there are sufficient materials before the officer to come to such a finding. Mr. Dutta stated that although the abovementioned determination was made in a income-tax proceeding, but the law as laid down in such proceeding would also equally apply in case of a sales tax proceeding. Then and secondly, Mr. Dutta referred to a determination dated 5th November, 1976, made by the Division Bench of the Andhra Pradesh High Court in the case of Minerals and Metals Trading Corporation of India Limited v. Deputy Commissioner, Commercial Taxes, Visakhapatnam [1978] 42 STC 372. In that case, the petitioner, the Minerals and Metals Trading Corporation of India Limited, entered into f.o.b. contracts with local suppliers for the purchase of iron and manganese ore for exporting the same to foreign buyers with whom the petitioner had entered into contracts for the sale of iron and manganese ore on the same terms. Pursuant to the contracts entered into by the petitioner with the local suppliers, the ore had to be placed on board the vessels at certain ports. Iron and manganese ore, being taxable at the last purchase point under the Andhra Pradesh General Sales Tax Act, 1957, the Commercial Tax Officer assessed the petitioner on the purchase turnover of the ore for the assessment years 1956-57 and 1957-58 disallowing the petitioner's claim for exemption under Section 5(1) of the Central Sales Tax Act, 1956, and Article 286(1)(b) of the Constitution of India. On appeal, the Assistant Commissioner of Commercial Taxes, however, allowed the petitioner's claim for exemption. After the decision of the Supreme Court in Mod. Serajuddin v. State of Orissa : AIR1975SC1564 that such purchases were not purchases in the course of export and were therefore not exempt from tax, the Deputy Commissioner of Commercial Taxes invoking Section 20 of the Andhra Pradesh Act issued notices proposing to revise the orders of the Assistant Commissioner granting exemption for the years 1956 57 and 1957-58. The petitioner thereupon filed petitions under Article 226 of the Constitution and contended (1) that there was no illegality in the order of the Assistant Commissioner and merely because the Supreme Court changed its view or laid emphasis on certain aspects of the matter, it could not be said that there was an illegality requiring revision under Section 20 of the Andhra Pradesh Act, (2) that as similar purchases were exempted by the Sales Tax Appellate Tribunal in the appeals filed by the petitioner for the years 1958-59, 1960-61 and 1963-6i and as the question of exemption of such purchases was pending before the Sales Tax Appellate Tribunal for the year 1969-70, the revisions were barred under Section 20(2-A) of the Andhra Pradesh Act and on, such facts it has been held (i) that in Mod. Serajuddin's case the Supreme Court did not lay down any new legal position. All that the Supreme Court did was that it emphasised after considering all the decisions on the point that it was only the last contract of sale between the exporter from India and the foreign importer that could be said to be a sale that occasioned the export and exempt under Section 5(1) of the Central Act and Article 286(1)(b) of the Constitution. Therefore the first contention of the petitioner should be rejected; (ii) that in tax matters, the decision given in respect of one assessment year is not binding in respect of a subsequent assessment year on the same question. Section 20(2- A) of the Andhra Pradesh Act cannot be so read as to bring in the concept of res judicata. The fact that, in appeal, any particular issue or question is either pending decision of the Tribunal or has already been decided by the Tribunal cannot operate as res judicata for other assessment years and cannot prevent the exercise of revisional powers by the Deputy Commissioner except in relation to the particular assessment year in respect of which an appeal is pending before the Tribunal or in respect of which the question or issue has been decided by the Tribunal. Section 20(2-A) was therefore not a bar for a revision by the Deputy Commissioner. Mr. Dutta further claimed that there cannot be any question of res judicata or application of the principles analogous thereto in taxation matters on the basis of the determinations dated 2nd May, 1961, as made in Instalment Supply (Private) Ltd. v. Union of India . : [1962]2SCR644 and he claimed further that the observations as made in the case of H. A. Shah & Company v. Commissioner of Income-tax and Excess Profits Tax, Bombay City : [1956]30ITR618(Bom) , would not apply in this case, and rather such observations would be distinguishable as the word 'reopened' as used in that case would mean and really meant the reopening of the concerned order of assessment and not of the subsequent orders. He also stated that that should be the ordinary construction and meaning of the word 'reopen'. He further claimed that 'revising a decision' would mean and relate to the assessment of the concerned order and not that of the subsequent order also. It was stated by him further, that the observations in the case of Devilal Modi v. Sales Tax Officer, Ratlam : [1965]1SCR686 would not also apply in this case or the principles as laid down therein, should not be applied in this case, more particularly when, in that case, the question for decision was whether in a writ proceeding the principles of res judicata would apply or not and such determinations would have no application in a proceeding relating to assessments arising out of either income-tax or sales tax proceedings, the more so when, each assessment should be deemed to be and considered as a different assessment or proceeding. While dealing with the determination in Raja Bahadur Visheshwara Singh v. Commissioner of Income-tax, Bihar and Orissa : [1961]41ITR685(SC) , Mr. Dutta contended that the principles of res judicata as enunciated therein would not apply in this case since there is no such thing as res judicata in income-tax matter and more particularly when each assessment, as mentioned hereinbefore, should be deemed to be a separate one.

20. Mr. Dutta further contended that cases as cited by Mr. Mukherjee do not relate to subsequent events or later years as such, the assessment as made in the instant case for later year cannot be said to be barred by res judicata or principles analogous thereto in view of a determination made earlier in respect of a previous year. According to Mr. Dutta if the officers concerned were wrong or had acted illegally or irregularly in years earlier than the years for which the present proceeding has been taken and there has been a mistake committed for one year, that would not mean that such mistake cannot be corrected in accordance with law in subsequent years. He stated further that Rule 3(30)(a) as indicated hereinbefore, was available for the assessment years in question which are involved in this proceeding and if a prior Commercial Tax Officer had committed any mistake in his interpretation of such rule and as such had given some benefit or advantage to the assessee that would not mean that a subsequent officer would have no right or jurisdiction to have the mistake corrected. While on this point, it must be noted that Rule 3(30) has undergone a change during the continuance of this proceeding and the said rule has finally been omitted with effect from 1st September, 1977. The provisions of Rule 3(30)(a) before the omission as indicated above was to the following effect :

3. (30) Sales made at auction held in Calcutta under the auspices of Calcutta Tea Traders' Association, to a registered dealer of tea specified in the certificate of registration of such dealers as being intended either for resale by him or for use by him in the manufacture of goods for sale.

Provided that a dealer who wishes to make under this clause a deduction of his turnover in respect of any such sale from his gross turnover shall, on-demand, produce-

(a) in the case of a sale made through a broker-member, a copy of the relevant account of sale rendered by the broker-member and a declaration in writing signed by the broker-member or by such other person as may be authorised in writing in the behalf by the broker-member that the goods in question are specified in the certificate of registration of such broker-member and have been sold to registered dealers authorised under their respective certificates of registration to purchase tea either for resale or for use in the manufacture of goods for sale; or

(b)...

21. In fact, on a reference to these provisions before and after amendment, Mr. Mukherjee claimed that there was no change in the provisions with regard to the requirements that a broker-member will have to give a declaration without disclosing the necessary and other particulars of the individual buyers, to whom the concerned sale have been effected.

22. On the basis of the determinations and the cases as cited at the Bar, that each assessment, be it under the Income-tax Actor under the Sales Tax Act, should be considered as separate proceedings and the decision arrived at in a previous assessment proceeding on the materials before a taxing officer cannot be regarded as binding in the assessment for subsequent years or in other words, in tax matters, the decision given in respect of one assessment year is not ordinarily binding in respect of a subsequent assessment year and that too even on the same question. We have consciously used the word 'ordinarily' hereinbefore and in this determination, in view of the decision of the Bombay High Court in the case of H. A. Shah & Co. v. Commissioner of Income-tax and Excess Profits Tax : [1956]30ITR618(Bom) and their obiter even though that is not binding as in the case of Burmah Shell Refineries Ltd. v. G.. B. Chand : [1966]61ITR493(Bom) , as we feel that in the case of such exceptional cases as mentioned in H. A. Shah's case : [1956]30ITR618(Bom) , the rule of res judicata or principles analogous thereto, can be invoked or pressed into action. All the cases as cited at the Bar and more particularly by the answering respondents in this appeal and which were decisions on writ proceedings may not be relevant and appropriate in this case and on such aspect, the submissions of Mr. Dutta were of substance, more particularly when and as mentioned hereinbefore, assessment proceedings for different years can be considered and termed as different proceedings and findings in one, will not be ordinarily binding on the other. We thus hold that the rule of res judicata or the principles analogous thereto would not ordinarily apply to taxing statutes and the more so when, an officer concerned with collection of revenue, would not be bound by such rule and would be entitled and competent to reopen the question, previously decided and come to a conclusion different from the earlier, subject of course to the limitations and restrictions as indicated hereinbefore. We further feel that this case would not come within the exceptions as indicated in the Division Bench determinations of the Bombay High Court in H. A. Shah & Co.'s case : [1956]30ITR618(Bom) and more particularly so, when an assessment for a particular year is final and conclusive between the parties in respect of the assessment for the year only and any assessment made for an earlier year would not be binding either on the assessee or the department in a subsequent year. For our views as aforesaid, the submissions as made by Mr. Mukherjee, on res judicata or the application of principles analogous thereto as indicated hereinbefore, should fail and we hold that this appeal, in view of the fact as indicated hereinbefore, can proceed or can be decided even in spite of the fact that no appeal has been preferred against the determination in Civil Rule No. 4235(W) of 1968 as admittedly the concerned assessment years and thus the proceedings involved in them, were distinct and separate. The view which we have taken also gets support from the observations of the Supreme Court to the effect that in matters of taxation there is no question of res judicata because each year's assessment is final only for that year and does not govern later years, because it determines only the tax for a particular period, as made in the case of Instalment Supply (Private) Ltd. v. Union of India : [1962]2SCR644 .

23. While on the merits of the appeal, Mr. Dutta contended after placing Rule 3(30)(a) as available at the relevant time and as quoted hereinbefore that the exemption in this case was appropriately refused as separate account and declaration forms from the said broker were not produced by the said company and they had failed and neglected to duly comply with such obligations. It was the admitted case that the said company had produced the consolidated account sales statement and declarations, from the said broker and that according to Mr. Dutta, was not the requirement of the concerned Rules. That rule, according to him, required the production of separate accounts and declaration forms and that being the position, it was claimed by him that the exemption in the instant case has been rightly refused. Mr. Dutta also contended that in holding otherwise than above, in this determination as impeached in the appeal, the learned Judge was also wrong in not holding that each delivery of the chests which were included in one lot constituted separate sales and as such there were more than one transaction covered by each declaration form and thus under Rule 3(30), they could not be exempted from sales tax. In fact, the learned Judge held otherwise and it was his specific observation that the views of the Commercial Tax Officer concerned, viz., 'as each delivery order having constituted a sale, there will be more than one transaction covered by each declaration form and thus, exemption under Rule 3(30) could not be granted', was wrong and not in accordance with law. It has also been observed by the learned Judge that it is clear that in the case of a sale by auction when goods are put up for sale in lot, each lot is prima facie, deemed to be the subject-matter of a separate contract and each lot in the case before him should constitute a number of the chests which were delivered by different delivery orders and as such it was also observed that each lot containing a number of chests will be deemed to be a separate contract.. Such being the position, it was also held that even if a number of chests are more than one in each lot and delivery of the concerned chests are made by instalments, they would constitute sales of a lot and as such one transaction and all the tea chests sold in a lot was one transaction and would be covered by one declaration form. The relevant pleadings as under :

That ever since the commencement of the business of the company your petitioner, while making one sale to a customer issues delivery order and gate-pass at the time of effecting every instalment of deliveries against one sale transaction and all these delivery orders and gate-pass like chalans are included and/or mentioned in the bill issued by your petitioner in respect of the same one sale transaction just in a manner as followed under ordinary mercantile law and procedure', were quoted, referred to and relied on by the learned Judge, while making his determination. He has also recorded that those statements were not denied by the answering respondents before him. That being the position, the learned Judge has also held that there must be a finding that while making a sale by lot to a customer in the auction different delivery orders were issued for effecting instalment of delivery of tea chests sold in one lot and thus in view of Section 64 of the Sale of Goods Act, the Commercial Tax Officer was wrong in treating the consignments sold in one lot and delivered by more than one delivery orders as more than one transaction. It was observed that the consignments delivered by more than one delivery orders sold in one lot in auction do not constitute sales of each consignment delivered by separate delivery orders and all tea chests sold in each lot can only be treated as one transaction and in such view of the matter, it has also been observed that one declaration form may cover all the consignments delivered by different delivery orders but sold in one lot and thus one bill can be made containing several delivery orders. It was claimed by the said company, at the time of the hearing of the rule, that in the tea auctions in Calcutta, lots of tea arc put up for auction by the tea brokers are and each lot is subject to separate auction and each lot is a separate sale and the findings of the Commercial Tax Officer concerned, that it was for the said company to produce separate account of sales and declaration forms, which was not done, were improper. The learned Judge, on reproduction of the account sales statement of the said broker or as issued by them, has also observed that the said broker had also certified that the tea sold in auction were sold to registered dealers in tea and he has also recorded that the respondents before him had contended that such an omnibus endorsement, that all sales were made to registered dealers, would not do. He has of course held that since it was clear from the bill of the broker-member that all sales were to the registered dealers in tea there was due compliance with Rule 3(30) and according to him, the respondents concerned were hypertechnical in rejecting the claim under Section 5(2)(a)(vi) of the said Act.

24. Mr. Dutta, appearing in support of the appeal, contended further and in addition to his submissions as recorded hereinbefore, that the learned Judge was wrong in observing that the respondents had acted in a hypertechnical manner in this case. It was restated by him, that they had acted duly, bonafide and legally, apart from acting with jurisdiction in this case. He also claimed on a reference to the determinations in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa : [1983]142ITR663(SC) , which was a case, where the Supreme Court, on consideration of the fact that if availability of other efficacious remedy by way of appeal and second appeal under the Sales Tax Act and in the event of failure to get relief in appeals to have a case cited to High Court, is a bar to maintain an application under articles 32 and 226 of the Constitution of India, has observed that when the Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of, it was contended, that since this case was not a case of acting without jurisdiction by the authorities concerned, no interference should have been made. If the exemption as claimed has not been allowed in due exercise of jurisdiction, then the case as mentioned above, would be of help and assistance to the appellants and not otherwise. That being the position, we shall mention our observations on this branch of the submissions after we have determined the issues on merits.

25. In this case, separate declaration forms and account sales statements were not produced, which as indicated hereinbefore, was the specific requirements of Rule 3(30). In support of his submissions as indicated hereinbefore or on the requirements in this case under Rule 3(30), Mr. Dutta referred to the case of Kedarnath Jute . v. Commercial Tax Officer : [1965]3SCR626 , where it has been observed that hardships or inconvenience is no basis for construction of a statute. In that case it has been specifically observed that a dealer may have lost some declarations by pure accident such as fire, theft, etc., yet he will be penalised for something for which he was not responsible, apart from observing that it is for the legislature or the rule-making authority to interfere to soften the rigour of the provisions and it is not for the Court to do so where the provisions are clear and unambiguous. Reference to such decision and the determinations was made by Mr. Dutta as according to him, the defence or stand taken by the said company for non-production of the relevant declaration forms and the account sales statement, was not proper and available to them in the facts and circumstances of the case and more particularly on the basis of the pleadings as available. It was further claimed by him that when under Rule 3(30) as mentioned hereinbefore, the clear and unambiguous intention of the statute was that declaration forms and account sales statement for each transaction of tea should be produced, the said company was not justified in producing the combined accounts sales statements as received by them from the said broker and their inability to produce declaration forms and account sales statement separately as they were not received by them from the said broker, was not appropriate and germane on the basis of the specific provisions of the rule. Mr. Dutta, then relied on the determinations of the Supreme Court in the case of State of Orissa v. M. A. Tulloch & Co. Ltd. : [1964]7SCR816 . In that case, the claim for deduction under Section 5(2)(a)(ii) of the Orissa Act and the mode of proof on the basis of Rule 27(2) under such Act and whether such mode was directory or mandatory was considered and on consideration of the rule, it has been observed that the production of a declaration under Rule 27(2) of the Orissa Sales Tax Rules, 1947, is not always obligatory on the part of a selling dealer when claiming the exemption under Section 5(2)(a)(ii) of the Orissa Sales Tax Act, 1947. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of Section 5(2)(a)(ii), apart from holding that Rule 27(2) must be reconciled with the section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales Tax Officer to be satisfied, that in fact, the certificate of registration of the buying dealer contains the requisite statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in Rule 27(2), before being entitled to a deduction. In fact, on the basis of the observations as above, Mr. Dutta also contended that the principles behind the concerned rule should be looked into and considered and the learned Judge here in this case failed to appreciate such point and committed a grave error in making the determination in the manner as was done arid the particulars whereof have been indicated hereinbefore.

26. Before dealing with the replies of Mr. Mukherjee on merits, we should also deal with some of his other submissions. Mr. Mukherjee claimed that the paper-book in the instant appeal was not in form or the same was defective, as the impugned judgment or the order on the basis whereof the determination was made by the learned Judge has not been incorporated. Admittedly the order and judgment which has been printed in this paper-book referred to the determinations made by the learned Judge in Civil Rule No. 4244 (W) of 1968 which is the subject-matter of F. M. A. No. 666 of 1977 and the other Rule being Civil Rule No. 4235 (W) of 1968, from which no appeal has been preferred. Since the judgment and order in the instant case has referred to the reasons in the judgment which has been printed in the paper-book of P.M.A. No. 666 of 1977. We cannot agree with the submissions of Mr. Mukherjee, that this paper-book is not in form or is defective, as we feel further that the judgment and order as printed in another paper-book, in an appeal between the same parties can be looked into and that too when the judgment and order as incorporated in the present paper-book has referred to the other judgment which is in issue in F.M.A. No. 666 of 1977. Thus, these submissions, of Mr. Mukherjee should also fail. Then, Mr. Mukherjee also sought to argue that this appeal was preferred out of time. But on a reference to the records, it appeared to us that such submissions were of no avail or without any justification.

27. While on merits, Mr. Mukherjee contended that Rule 3(30) as quoted hereinbefore has three parts. According to him, the said rule, firstly, refers to a broker-member, secondly, who is required to give a copy of the account sales statement and thirdly, also to supply the necessary declaration. According to him those limbs of Rule 3(30) were duly satisfied on the basis of the account sales statement as produced by the said company, on receipt of the same from the said broker and the said rule do not contemplate of giving separate certificates. Such being the position, Mr. Mukherjee specifically contended that the action in the matter of disallowing the claims of the said company by the respondent-Commercial Tax Officer and that too for the reasons as mentioned hereinbefore, was inappropriate, improper, irregular, void and without jurisdiction. It was also further claimed by Mr. Mukherjee that it was not necessary or required to mention the names of the individual registered dealer-purchasers, to whom the said broker had sold the tea, in terms of Rule 3(30) (a) of the Rules. He further contended that since a Commercial Tax Officer having prior jurisdiction over the file of the said company, before the Commercial Tax Officer who had made the impugned order, had accepted such account sales statement and allowed the claims of the said company for previous years and that has also happened in years subsequent to the present assessment, the disallowance as made, should also be deemed to be improper, incorrect and invalid and that too because of the age-old existing custom in the matter of sale of tea through auction and filing of a comprehensive account sales statement as received from the concerned broker.

28. It was the further submissions of Mr. Mukherjee that if two views are possible, viz., one as mentioned on behalf of the Revenue and the other on behalf of the said company, on interpretation of Rule 3(30) (a) or in case of any doubt, the construction of the rule should be in favour of the assessee and such construction should also be on the basis of the law as it is, but not as it should be. For the purpose of establishing the last limb of his submissions as mentioned, Mr. Mukherjee referred to the case of Nathmull Poddar v. Salil Kumar Chakraborty (1970) 74 CWN 793. That was a. case where the learned Judge had occasion to deal with the provisions of the Employees State Insurance Act, 1948, and on construction of the relevant provisions, it has been observed by him that the requirements of legislation based on socio-economic needs of the society cannot be over-emphasised. But the Judges should discuss all cases in accordance with law as it is and not in accordance with law as it should be. It has also been observed that the Court should not transgress the bounds of law. The reference to the above determination was made by Mr. Mukherjee as at one point of time, we had observed that if necessary we can direct the form of account sales statement as was produced at the relevant time by the said broker changed so that the particulars of registered buyers of tea are furnished in that statement for the benefit of the Revenue or for enabling them to know the particulars of such registered dealers in tea, to whom the said broker had actually sold the tea. Such point of decision has of course now lost its importance because at present Rule 3(30) has been omitted with effect from 1st September, 1977.

29. There is also no doubt that in case of ambiguity, if any, in a statute, the same should be reasonably construed and answered in favour of the assessee. In support of his submissions on the question of ambiguity, Mr. Mukherjee firstly referred to the case of Kapildeoram Baijnath Prosad v. J.K. Das [1954] 5 STC 365 which is also reported in AIR 1954 AsS 170. In that case it has been observed that all exemptions from taxation must be strictly construed and must not be extended beyond the express requirements of the language used. The taxation laws like Sales Tax Act are not in the nature of penal laws; they are substantially remedial in their character and are intended to prevent fraud, suppress public wrong and promote the public good. They should, therefore, be construed in such a way as to accomplish those objects, apart from holding that the intention of the legislature is to be gathered from the language used in the enactment which comes up to be interpreted. If the words leave no doubt as to their meaning and import, it is the obvious duty of the Court to give effect to them. Where the language is plain and admits of one meaning only, it has to be given effect to, even if it leads to apparent hardship and if there is any ambiguity or doubt in the expression of the legislative intent in a fiscal enactment the Courts have to give the benefit thereof to the subject and relieve him from the burden of taxation. He, secondly referred to the case of State of Andhra Pradesh v. Vauhuni Pictures Private Ltd. [1962] 13 STC 847, where the provisions of the Andhra Pradesh General Sales Tax Rules, 1957, were construed and in interpreting the language of Rule 6 it has been observed that the principle that there could be no tax in regard to a sale which has not been actively and effectively put through, though at first intended to be a sale, should be kept in mind. Mere hardships which crop up in applying the rule cannot stand in the way of correct construction of the rule. Further, anything which the language of the rule itself cannot convey, should not be imported into it, merely on the ground that either a lacuna exists or a hardship is caused in giving effect to the rule as it stands. Thirdly, Mr. Mukherjee relied on the case of Commissioner of Income-tax, Madras v. Ajax Products Ltd : [1965]55ITR741(SC) which is also reported in : [1965]55ITR741(SC) and where it has been observed that where the proviso is construed as restricting the main provision or as a substantive clause, it cannot be divorced from the provision to which it stands as a proviso. It must be construed harmoniously with the main enactment. Such determination was made by the Supreme Court while construing the second proviso to Section 10(2)(vii) of the Income-tax Act, 1922. While on the point, lastly, Mr. Mukherjee referred to the Maxwell on the Interpretation of Statutes (11th Edition) and relied on the observation on beneficial construction. As indicated earlier, we again restate that the law as laid down on the question of ambiguity and beneficial construction and to which reference has been made by Mr. Mukherjee, cannot be doubted and disputed and in fact, Mr. Dutta also agreed to that but contended that a view of law should be given and taken which can be supported. In fact, he submitted that the rule regarding beneficial construction as submitted by Mr. Mukherjee would really help the Revenue in this case and not the-said company, when on construction of Rule 3(30), no other view than what has been taken by the Revenue was possible in the instant case.

30. In addition to his submission, Mr. Mukherjee also submitted as indicated earlier, that since the filing and acceptance of account sales statements by the brokers in tea is continuing or has continued for a long time and the Revenue authorities have accepted them without any exceptions or objections prior to the assessment years as involved in this appeal and the other appeal being F.M.A. No. 666 of 1977 and subsequent to those years as involved, they have again accepted and acted on the basis of such account sales statements as filed by the said company and others similarly situated. So, the filing and acceptance of such account sales statement has received a statutory sanction in law, and they have thus become the custom and usages, in terms of Article 13 of the Constitution of India and the relevant provisions of the Evidence Act. It was claimed by him that in the facts and circumstances of the case and since there has been no wilful waiver of the rights under Rule 3(30) by the said company, there was in fact no waiver of their existing rights to claim necessary and relevant deduction on the basis of the account sales statements, which were duly filed, on receipt from the said broker. In support of such submissions on waiver, reference was made by Mr. Mukherjee to the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh : [1979]118ITR326(SC) , where it has been observed that waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it and on such facts it has been held that the claim of the appellant to exemption from sales tax could be sustained only on the doctrine of promissory estoppel and this doctrine could not be said to be so well-defined in its scope and ambit and so free from uncertainty in its application that the Court should be compelled to hold that the appellant must have had knowledge of its right to exemption on the basis of promissory estoppel at the time when it addressed the letter dated 25th June, 1970, to the Government. Moreover, there is no presumption that every person knows the law. It was, therefore, not possible to presume, in the absence of any material placed before the Court, that the appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated 25th June, 1970. He then referred to the case of Gurdial Kaur v. Mangal Singh , where, while dealing with the custom regarding succession amongst Jats of Punjab or the validity of the same and the effect of remarriage of the mother, it has been observed that the custom amongst Jats of Punjab prevailing prior to enactment of the Hindu Succession Act under which a mother was disinherited on her remarriage is a valid custom. It does not discriminate against Jats merely on ground of caste or race as compared to other Hindus governed by their personal law. Nor does the fact that it disinherits a mother alone on remarriage and not the father who continues to be an heir of the estate of his predeceased son in spite of remarrying, render it as discriminatory merely on the ground of sex. This is so because rights of succession varying between different heirs belonging to different sexes have to be determined according to the personal law or the usages by which a party is governed. Moreover, the usage in question was recognised as a valid one as long ago as in 1891 and has stood the test of time ever thereafter, apart from holding that according to the custom amongst Jats in Punjab in Patiala District a widowed mother is entitled to succeed to her son's property to the exclusion of other reversioners. Her remarriage, however, disentitles her to the estate of her son. The reason is that the mother does not succeed as a mother but only as the widow of the father of the deceased, and according to custom she is no longer the widow of the father of the deceased if she has remarried, and has, therefore, no title to the estate of her son against the reversioners. Mr. Mukherjee claimed that the determinations in the case of Kedarnath Jute . v. Commercial Tax Officer : [1965]3SCR626 and those in Titaghur Paper Mills Co. Ltd. v. State of Orissa : [1983]142ITR663(SC) , have no application in this case. He also referred to the case of Beharilal Shyamsunder v. Sales Tax Officer : [1966]60ITR260(SC) for the proposition and his submissions that since the challenge as thrown in the proceeding could not be decided by the authorities under the said Act, so, the writ petition of the said company was maintainable and was duly entertained. In the case as mentioned above, it has been observed that where a petition was filed in the High Court under Article 226 of the Constitution of India to have an assessment order quashed on the ground that the imposition of sales tax was without authority of law or ultra vires it on the ground that the petitioner should exhaust his internal remedies under the Act, since the authorities constituted under the Act could not decide such a question. It was the further specific and categorical submission of Mr. Mukherjee that the Commercial Tax Officer was not authorised and competent to deal with and dispose of the, points as were taken and which were really in issue and as such the petition under Article 226 was also maintainable.

31. As indicated earlier, Mr. Dutta contended that the cases as cited by Mr. Mukherjee on res judicata or on the application of the principles analogous thereto, are inapplicable in this case, more particularly when each assessment would be a separate and distinct one and these decisions were not on taxing statutes. In fact, all the determinations excepting the one in the case of Burmah Shell Refineries Ltd. v. G. B. Chand : [1966]61ITR493(Bom) , were claimed by Mr. Dutta to be not applicable in this case and he also stated that Burmah Shell's case or the findings therein do really support the contentions of the appellants and not those of the said company with particular reference to the determinations in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh : [1979]118ITR326(SC) . Mr. Dutta contended that the rule of promissory estoppel would have no application to this case and furthermore, such rule cannot be claimed to be adhered to by the said company, as there is admittedly no pleading that on such or any promise, the said company has acted to its detriment and prejudice. Mr. Dutta also contended that in this case, there has been no evidence to establish the fact that because of any promise the said company, viz., the promisees, had acted to their detriment or had altered the position to their prejudice.

32. In answer to the submissions of Mr. Mukherjee, Mr. Dutta claimed that since there is no ambiguity in Rule 3(30), the cases as cited by Mr. Mukherjee, the particulars whereof have been indicated hereinbefore, would not also assist the said company or have any application in the facts of this case.

33. Lastly, Mr. Dutta laid great stress on the determinations in Titaghur Paper Mills Co. Ltd. v. State of Orissa : [1983]142ITR663(SC) and claimed that in view of the observations therein, the writ petition by the said company was not maintainable, as admittedly they had not exhausted the other available remedies in the said Act and the order as made, was not without jurisdiction. Mr. Dutta submitted that even if there has been violent interpretation of the statute or the statutory provisions, they would at best be a wrong and erroneous determination, but would not be a case of acting without jurisdiction. According to him, even in such a case, writ proceedings would not be maintainable. It was also claimed by Mr. Dutta that erroneous interpretation of Rule 3(30), may give rise to an erroneous determination, but that not being a case of erroneous use of jurisdiction or acting on the same, the writ petition in this case should not have been entertained on the basis of the principles as laid down in Titaghur Paper Mills Co. Ltd's case : [1983]142ITR663(SC) . Mr. Dutta also submitted that since in this case there has been no appropriate pleadings of nullity or any case of inherent lack of jurisdiction of the respondent-Commercial Tax Officer, so also this case would be hit by the principles as laid down in the abovementioned case of Titaghur Paper Mills Co. Ltd. It was also stated by Mr. Dutta that since no provisions of the said Act or the Rules as framed thereunder have been claimed to be or challenged as ultra vires, so the determinations in the case of Beharilal Shyamsunder v. Sales Tax Officer : [1966]60ITR260(SC) will have no application.

34. Before we come to our conclusion, we must also keep it on record that while on the case of question of custom and usages as indicated hereinbefore, Mr. Mukherjee made a further reference to the case of Commissioner of Agricultural Income-tax, West, Bengal v. Sri Keshab Chandra Mandal : [1950]18ITR569(SC) , in which case, the assessee was illiterate and his signature was given by the pen of his son and on consideration of the validity, propriety and permissibility of such signature, it has been held when the statute permits signature by an agent, the writing of the name of the principal by the agent is regarded as the signature of the principal himself. But this result follows when it is permissible for the agent to sign the name of the principal. If, on a construction of a statute, signature by an agent is not found permissible, then the writing of the name of the principal by the agent, however clearly he may have been authorised by the principal, cannot possibly be regarded as the signature of the principal for the purposes of that statute. If a statute requires personal signature of a person, which includes a mark, the signature of the mark must be that of the man himself. There must be physical contact between that person and the signature or the mark put on the document. Mr. Mukherjee also referred to the case of Sant Ram v. Labh Singh : [1964]7SCR756 . In that case, in a suit filed by the respondent, the Munsif though holding that there was a general custom of pre-emption in the locality and that the respondent had a right to pre-empt under that custom, dismissed the suit because the sale did not include a strip of land 3 feet 6 inches wide between the respondent's house and the property sold. The respondent's appeal was allowed by the District Judge. The appellants appealed to the High Court which was unsuccessful because of the answer of the Division Bench to which the question was referred. The Division Bench held that the law relating to pre-emption on the ground of vicinage was saved by Article 19(5) and was not void under Article 13 of the Constitution. The appellant relied on the decision of the Court in Bhau Ram v. Baijnath [1962] 3 SCR 724 and claimed that pre-emption on the ground of vicinage could not be claimed. The respondents in reply contended (a) that Bhau Ram's case was concerned with a legislative measure whereas the present case arose from custom and was thus distinguishable and (b) that Article 13(1) dealt with 'all laws in force' and custom was not included in the definition of the phrase 'laws in force' in Clause (3)(b) of Article 13 and on such it has been held that in so far as statute law is concerned, Bhau Ram's case decides that a law of preemption based on vicinage is void. The reasons given by the Court to hold statute law void apply equally to a custom and (ii) custom and usage having in the territory of India the force of law are included in the expression 'all laws in force'. Apart from the above, in addition to the other cases on res judicata and the submissions on the character of assessment proceedings, Mr. Mukherjee also referred to the case of Joint Family of Udayan Chinubhai v. Commissioner of Income-tax, Gujarat : [1967]63ITR416(SC) , where it has been observed that the rule that a decision in one assessment year does not operate as res judicata n respect of the matter decided in any subsequent year and ordinarily there is no bar against the investigation by the Income Tax Officer of the same facts in the later year, does not apply to an order under Section 25A(1). When such an order is made, the family ceases to be assessed as a Hindu undivided family and thereafter it cannot be assessed in that status unless the order is set aside by a competent authority. It should also be recorded that in view of the order as proposed by the learned trial Judge, Mr. Mukherjee also claimed that no prejudice has been caused to the appellants and for that also he stated that the appeal must not be entertained.

35. We have made an observation on the submissions on res judicata or the application of the principles analogous thereto and we do not feel inclined to have such views and observations changed even on consideration of the other case on the point as referred to by Mr. Mukherjee and the particulars whereof have been mentioned hereinbefore. As indicated earlier, on the basis of the cases cited at the Bar, we reiterate that each assessment proceeding under the said Act like those under the Income-tax Act, being separate and distinct proceeding, the determinations in earlier proceedings would not ordinarily operate as a bar on application of the rule of res judicata or principles analogous thereto on subsequent proceedings and the exceptions as indicated in the case reported in H. A. Shah 6- Co. v. Commissioner of Income-tax and Excess Profits Tax : [1956]30ITR618(Bom) could be of no avail and assistance in this case.

36. It also appeared to us that there is no ambiguity in Rule 3(30)(a) of the Rules as quoted hereinbefore and such ambiguity is not available even on comparative study of the said rule with Rule 3(30)(b), which was also referred to by Mr. Mukherjee and as such, the cases on ambiguity or the effect thereof and for affording reasonable construction in favour of the said company, would not arise in this case. The construction which the officer concerned has put forward to Rule 3(30) appear to be reasonable and proper, as otherwise the Revenue may suffer for not receiving the real informations and particulars of the registered dealers in tea to whom sale was actually effected by the said broker, the more so when such particulars were not admittedly available from the account sales statement as received and filed by the said company.

37. We find that the non-production of the separate account sales statement and necessary declaration forms or the reasons as put forward by the said company for such non-production, do not come within the exceptions as indicated in the case of Kedarnath Jute . v. Commercial Tax Officer : [1965]3SCR626 and as such, even on the basis of their defence, the said company was not entitled to the exemptions as claimed. The said company could have claimed deductions on the other grounds, if available, under the said Act, and the terms of Rule 3(30) were required to be substantially complied with and that not having been done admittedly, the Commercial Tax Officer concerned, had every reasonable basis and jurisdiction to be satisfied regarding the compliance with the necessary requirements of Rule 3(30) and so, the principles as laid down in the case of State of Orissa v. M. A. Tulloch & Co. Ltd. : [1964]7SCR816 , would apply in this case. In fact, under Rule 3(30), the officer concerned was duly entitled and authorised to demand, in case of a claim for deduction by a dealer, here in this case the said company, the necessary account sales statements from or the proceedings as impeached, were initiated and completed earlier than 1976, when the explanation to Section 141 as mentioned hereinbefore was added.

38. On the prayer of Mr. Mukherjee, we keep it on record that if the said company now files separate account sales statements and declaration forms in terms of this judgment, the authorities should reconsider their case.

Amarendra Chandra Sengupta, J.

39. I agree.


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