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Siemens (India) Ltd. Vs. Assistant Commissioner of Commercial Taxes - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberCivil Revision Case No. 5350(W) of 1974
Judge
Reported in[1976]38STC480(Cal)
AppellantSiemens (India) Ltd.
RespondentAssistant Commissioner of Commercial Taxes
Appellant AdvocateD. Pal, ;Anil Roy Chowdhury and ;Joydev Saha, Advs.
Respondent AdvocateS.N. Dutt, Adv.
DispositionPetition allowed
Cases ReferredPulipati Subbarao & Co. v. Appellate Assistant Commissioner of Income
Excerpt:
- .....per orders placed by the aforesaid parties. in the said contracts, there were specifications as to import of goods from west germany and in terms of the contracts the petitioner placed the indents with the foreign parties indicating the names of the parties for whom the goods were imported together with their purchase order references, import licences, etc. according to the contracts, the petitioner states, the goods were to be manufactured in west germany as per the specification. after verification and inspection by the representatives of the said d.g.s. & d. and the indian railways the inspection certificates were issued. it is not necessary to refer in detail, for the purpose of this application, to the other terms and conditions of the said contracts.3. the petitioner in the course.....
Judgment:

S. Mukharji, J.

1. An interesting point of procedure under the Bengal Finance (Sales Tax) Act, 1941, falls for consideration in this application under Article 226 of the Constitution. The petitioner is an existing company incorporated under the Companies Act. The petitioner is a manufacturer of and dealer in electrical goods, heavy engineering machineries, etc. The petitioner is a dealer within the meaning of Section 2(c) of the Bengal Finance (Sales Tax) Act, 1941. The petitioner has also a registration certificate under the Central Sales Tax Act, 1956.

2. It is the case of the petitioner that the petitioner entered into contracts with several parties including the Director-General of Supplies and Disposals, the Indian Railways, M/s. Hindustan Steel Limited, Durgapur Steel Plant, Durgapur, for the supply of the electrical goods from time to time as per orders placed by the aforesaid parties. In the said contracts, there were specifications as to import of goods from West Germany and in terms of the contracts the petitioner placed the indents with the foreign parties indicating the names of the parties for whom the goods were imported together with their purchase order references, import licences, etc. According to the contracts, the petitioner states, the goods were to be manufactured in West Germany as per the specification. After verification and inspection by the representatives of the said D.G.S. & D. and the Indian Railways the inspection certificates were issued. It is not necessary to refer in detail, for the purpose of this application, to the other terms and conditions of the said contracts.

3. The petitioner in the course of the assessment proceedings for the period 4 quarters ending 30th September, 1964, claimed before the Commercial Tax Officer, exemption under Section 27(l)(a)(ii) of the said Act being the sales made in the course of import as the movement of the goods under the contracts was as a result of the covenant or incidental to the contracts of sales. For the aforesaid assessment period 4 quarters ending 30th September, 1964, the petitioner claimed under Section 27(l)(a)(ii) of the said Act, the sum of Rs. 50,11,639.88 being the sales effected in the course of import into India. The petitioner relied on the decision in the case of K.G. Khosla & Co. Pvt. Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division [1966] 17 S.T.G. 473 (S.C.). The Commercial Tax Officer, however, allowed only out of the total claim, a sum of Rs. 29,392.98 and rejected the balance amount of Rs. 49,82,246.90. The Commercial Tax Officer in his order dated 31st August, 1968, observed, inter alia, as follows:

The dealer appeared to have claimed Rs. 50,11,639.88 on the ground that the sales were effected in the course of import. In this matter the dealer sought to rely on exemption under Section 27(l)(a)(ii) of the B.F. (S.T.) Act, 1941, and the decision of the Supreme Court in the case of K.G. Khosla & Co. v. Deputy Commissioner of Commercial Taxes, Madras [1966] 17 S.T.C. 473 (S.C.). The relevant contracts and the correspondence, etc., were checked in the light of the decision of the Honourable Supreme Court, which were produced by the dealer. It appeared to me that some and except the undernoted cases, others were not identical to the decision of the Honourable Supreme Court as mentioned above:

(1) Damodar Valley Corporation as per invoiceNo. 2021/0010 dt. 10-12-63 Rs. 5,292.00(2) do. as per invoice No. 2021/0156 dt. 9-4-64 Rs. 4,307.00(3) do. as per invoice No. 2031/0344 dt. 19-8-64 Rs. 352.80(4) D.E. (Equipment) Electrification Circle,Calcutta, as per invoice No. 2912/0003 dt. 10-6-64 Rs. 18,041.53______________Rs. 27,993.33______________Hence the claim mentioned was allowed for Rs. 29,392.98 and the remaining amount was disallowed and added back to Balance (A).

4. The petitioner being aggrieved by the said order dated 31st August, 1968, and the additions made thereunder preferred an appeal before the Assistant Commissioner of Commercial Taxes (South) Circle, Calcutta, challenging, inter alia, the validity and legality of the said additions in the taxable turnover of the petitioner and the rejection of the claims made by the petitioner under Section 27(l)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941. The Assistant Commissioner of Commercial Taxes by an order dated 24th December, 1969, allowed the claims to the extent of Rs. 49,06,158.61 holding, inter alia, that the facts of the instant case were within the four corners of the facts of the Supreme Court case in the case of K.G. Khosla & Co. (P.) Ltd. [1966] 17 S.T.G. 473 (S.C.) and the petitioner was entitled to the exemption claimed for sales in the course of import. The said Assistant Commissioner rejected the sum of Rs. 7,570.12 on the ground that the names of the import licensees were not indicated on the indents placed by the petitioner with the exporter in West Germany. The Assistant Commissioner observed, inter alia, as follows :

It is submitted that the learned Commercial Tax Officer erred in ignoring the submission of the petitioner that the above sales were not taxable in view of the clear decision of the Supreme Court in the case of K.G. Khosla & Co. (P.) Ltd, v. Deputy Commissioner of Commercial Taxes, Madras Division, Madras [1966] 17 S.T.C. 473 (S.C.). It is submitted that instead of looking into the evidence, indents, import licences, etc., the learned Commercial Tax Officer simply observed that the petitioner's claim for exemption was not identical with the facts of the case decided by the Supreme Court. It is submitted that in the contract there is a stipulation as to the import of the goods from the overseas and in pursuant to the said contract the petitioner placed indents with the foreign firms indicating the name of the petitioner's customers for whom the goods have been imported. In all the cases the goods were imported on the strength of either actual user's licence or railway administration or D.G.S.D. recommended licences. It is stated that in so far as the imports by the railways and the D.G.S.D. are concerned the goods were inspected by the D.G.S. & D. staff of London. It is, therefore, urged that the facts of the instant case being on four square with the facts of K.G. Khosla's case [1966] 17 S.T.C. 473 (S.C.), decided by the Supreme Court, the learned Commercial Tax Officer was not justified in disallowing the claim for exemption in respect of the said sum of Rs. 49,82,246.90.

5. The petitioner being aggrieved and dissatisfied with the said order of the Assistant Commissioner of Commercial Taxes preferred a revision petition under Section 20(3) of the said Act before the Commissioner of Commercial Taxes, West Bengal. The petitioner contended before the revisional authority, inter alia, as follows :

(1) Levy of tax on the value of goods of Rs. 15,190 supplied in the execution of the contract is illegal as the said amount was received in connection with works contract of indivisible nature.

(2) Disallowance of Rs. 2,173.50 being the claim for exemption made under Section 5(2)(a)(ii) of the said Act is illegal and invalid.

(3) The claim for Rs. 68,518.17 on account of sales effected in the course of import of goods into India was illegal.

6. The Additional Commissioner of Commercial Taxes allowed the claim of Rs. 2,173.50. With regard to the claim for Rs. 68,518.17, the Additional Commissioner of Commercial Taxes directed the Assistant Commissioner of Commercial Taxes to consider whether the said sales were effected in the course of import. Inasmuch as the main contention centres round the power of the Commissioner in passing the aforesaid order and the direction given therein, it is necessary to set out the relevant portion of the said order. In his order dated 4th December, 1973, the Additional Commissioner of Commercial Taxes observed, inter alia, as follows :

The next dispute relates to the disallowance of the dealer's claim for Rs. 68,518.17 on account of sales said to have been effected in the course of import of the goods into India. It appears that the sales in question were taxed on the ground that the name of the import licensee was not indicated on the indent placed by the petitioner with the exporter in West Germany. It is submitted that the goods were imported under actual user's licence No. G/AU/1000689/C/XX/18/C/H/17 dated 21st October, 1963, issued in favour of Durgapur Steel Plant. If the learned Assistant Commissioner is satisfied that the sales were effected in the course of import and the facts and circumstances were akin to those in the case of K.G. Khosla & Company (P.) Ltd. v. Deputy Commissioner of Commercial Taxes [1966] 17 S.T.C. 473 (S.C.)., the mere omission to indicate the name of the licensee on the indent placed with the exporter in West Germany was a matter of no consequence.

The impugned appellate order will hence be set aside with direction to the learned Assistant Commissioner to pass fresh order in accordance with law after verifying the details of the sales said to have been effected in the course of import.

7. Thereafter, the matter came up before the Assistant Commissioner pursuant to the aforesaid direction of the Additional Commissioner referred to hereinbefore and he issued the impugned notice on 23rd July, 1974. The said notice reads as follows:

Kindly refer to your appeal case relating to your assessment for 4 quarters ended 30th September, 1964. The case came up for hearing before me on 8th July, 1974, when your representative, Shri S.M. Tungare, appeared before me and argued the case. In the course of hearing it transpired that out of the total claim of Rs. 49,82,246.90 claimed by you to be sales in the course of import of goods into the territory of India the sum of Rs. 49,13,728.73 was allowed by the appellate authority in Appeal Case No. 737/68-69 leaving a balance of Rs. 68,518.17, which was the subject-matter of dispute before the Additional Commissioner in Revision Case No. 1604/69-70.

In the course of hearing of the case it also transpired that your sales were akin to those referred to in the case of Binani Brothers (Pvt.) Ltd. [1974] 33 S.T.C. 254 (S.C.). If that be so, then the entire claim of Rs. 49,82,246.90 is liable to be disallowed.

You are, therefore, directed to show cause on 6th September, 1974, at 11 a. m. why the entire claim should not be disallowed in terms of the latest Supreme Court's decision on the subject.

8. The aforesaid notice is the subject-matter of challenge in this application under Article 226 of the Constitution.

9. The validity of the notice impugned depends upon, firstly, on the power of the Commissioner in exercise of his jurisdiction of revision and, secondly, on the construction of the order he passed on the revisional application before him. Section 20 of the Bengal Finance (Sales Tax) Act, 1941, deals with appeal, revision and review. Sub-section (1) of Section 20 states that a dealer may, in the prescribed manner, appeal to the prescribed authority within sixty days or such further period as may be allowed by the said authority for cause shown to his satisfaction from the receipt of the notice of demand. Sub-section (2) of Section 20 deals with the power of the appellate authority in disposing of an appeal. Clause (a) of Sub-section (2) of Section 20 provides that the appellate authority may confirm, reduce, enhance or annul the assessment. Clause (b) authorises the appellate authority to set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed. Clause (a) of Sub-section (3) of Section 20 authorises the Commissioner on his own motion to revise any assessment made or order passed by a person appointed under Section 3 of the Act. Clause (b) of Sub-section (3) of Section 20 states that subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner may, upon application, revise any order other than an order referred to in Clause (c) and an order against which an appeal lies. Clause (c) of Sub-section (3) of Section 20 authorises the Tribunal to revise any appellate or revisional order passed in the matter of assessment. Sub-section (5) of Section 20 authorises the Commissioner, before any order is passed under this section which is likely to affect a person adversely, to pass the order giving reasonable opportunity to such person of being heard.

10. It is clear from the scheme of the different sub-sections referred to hereinbefore that the Commissioner may, on his own motion, revise an order passed by the officers subordinate to him. But before he passes an order affecting any person prejudicially he must give the person concerned an opportunity of being heard. It has further to be borne in mind that in passing an order on his own motion, the Commissioner is enjoined to record his reasons for so doing. It appears to me that the Commissioner cannot, in an application for revision to him by a party aggrieved, alter the assessment affecting the points held in favour of the person concerned. Otherwise the power of the Commissioner would be in conflict with the scheme of Section 20 of the Act. This, however, would not present any practical difficulty because the Commissioner can always revise an order within the time mentioned in the rules on his own motion, if he is so inclined. In the case of S.B. Gurbaksh Singh v. Union of India [1976] 37 S.T.C. 425 (S.C.), the Supreme Court had occasion to consider generally the scope of the revisional power under the Bengal Finance (Sales Tax) Act, 1941. There at page 429 of the Reports the Supreme Court observed that the Commissioner could revise any assessment made or order passed under the Act including the order of the appellate authority. The limits of the revisional powers were not circumscribed by Sub-section (3), but these powers, the Supreme Court observed, were akin to the power of the appellate authority as mentioned in Sub-section (2). It is true that the Supreme Court was generally speaking that the revisional power is akin to the power of the appellate authority as mentioned in subsection (2) of Section 20 and the appellate authority has power under subsection (2) of Section 20 to enhance the assessment. But from that point of view it can be urged, as was urged in the instant case before me, that the Commissioner has, even in a case where the revisional application was by a party aggrieved on a point on which the party was not aggrieved, power as the revisioual authority to vary the order against which revision has been sought. But when Sub-section (3) of Section 20 speaks that the Commissioner must record his reasons for so doing in writing when revising any assessment on his own motion, the power of the Commissioner to revise on his own motion as well as to revise on the application of a party aggrieved, in my opinion, it would be not correct to treat these two powers at par and to say that even in a case where the Commissioner passed the order at the invitation of the party the Commissioner can revise the order to the prejudice of the party at whose invitation the Commissioner passed the order in question. General scheme of the revisional power was examined by this court in the case of Ram Kanai Jamini Ranjan Pal Private Ltd. v. Member, Board of Revenue, West Bengal [1970] 26 S.T.C. 489. That decision has been affirmed by the Supreme Court on 23rd April, 1976, and subsequently reported in Ram Kanai Jamini Ranjan Pal Pvt. Ltd. v. Member, Board of Revenue, West Bengal A.I.R. 1976 S.C. 1545. The facts of that case, however, were different. There though the Commissioner was dealing with a revisional application before him made by the party aggrieved, there were subsequent enquiries and the Commissioner gave notice that he would take into consideration the subsequent enquiry and asked the party to show cause. It was similar to the Commissioner exercising power suo motu, but, as the revision application of the party was pending he proceeded on that application. Having regard to the facts of the instant case before me it appears to me that where sales representing Rs. 49,82,246.90 were involved, the petitioner was entitled to exemption in view of the order of the Assistant Commissioner of Commercial Taxes who held in favour of the dealer in respect of which the dealer did not move the Commissioner in revision, and the Commissioner did not also give any such notice, the Commissioner was not competent in passing an order in revision at the invitation of such dealer so as to set aside that portion of the order. It is well to remember in this connection the observations of the Supreme Court (sic) in the case of V. Ramaswamy lyengar v. Commissioner of Income-tax, Madras [1960] 40 I.T.R. 377 at 393., where the Supreme Court (sic) observed that:

It is a fundamental principle that no litigant has an inherent right of appeal against a judicial order, unless such right is given by a statute. It is an equally settled principle that where the whole or part of an order has not been appealed against, it would be final; and the appellate authority, in case there is an appeal against a part of an order, would have no jurisdiction in the absence of statutory provision to interfere with the other part which does not form the subject of the appeal.

11. The revisional power of the Commissioner can be exercised in two different contingencies. It will be improper to equate these two parts except where, however, the Commissioner gives specific notice to that effect. In the case of revision at the invitation of the party the Commissioner would have jurisdiction to interfere only with that part of the order in respect of which the party is inviting the Commissioner to exercise his revisional jurisdiction except where the Commissioner gives notice otherwise.

12. The second aspect of the matter, however, is that in the order of the Commissioner, the Commissioner has not, in my opinion, set aside the appellate order in its entirety. He has only gone into the question relating to the claim of Rs. 68.518-.17. When the Commissioner says that 'the impugned appellate order will hence be set aside', in my opinion, the Commissioner means the appellate order dealing with that portion of the order which deals with the claim of Rs. 68,518.17. Where the Commissioner directed the Assistant Commissioner 'to pass fresh order in accordance with law after verifying the details of the sales' he was dealing with the sales covered by the claim of Rs. 68,518.17. The Commissioner has not indicated any ground as to the claim for disallowance of the claim of Rs. 49,82,246.90. To consider the question how to deal with an order of this type, reference may be made to the observations of the Supreme Court in the case of Commissioner of Income-tax, Bombay City-I v. Indo-Aden Salt Works Co, [1959] 36 I.T.R. 429 at 435 and in the case of Pulipati Subbarao & Co. v. Appellate Assistant Commissioner of Income-tax, Vijayawada [1959] 35 I.T.R. 673 at 675.

13. In the aforesaid view of the matter I am of the opinion that the Assistant Commissioner of Commercial Taxes has no jurisdiction to consider afresh whether the claim in respect of sales of Rs. 49,82,246.90 was entitled to deduction as given by the previous appellate order. The impugned notice dated 23rd July, 1974, is therefore set aside and quashed. This order, however, will not prevent the respondent-Commissioner, if he is so advised and if he so considers, to pass another fresh order to revise again the appellate order as he is entitled to do in accordance with law. With the above observations the rule is made absolute.

14. There will be no order as to costs.


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