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Oriental Gas Company Ltd. Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1130(W) of 1969
Judge
Reported in[1973]32STC141(Cal)
AppellantOriental Gas Company Ltd.
RespondentState of West Bengal
Appellant AdvocateN.L. Pal, Adv.
Respondent AdvocateS.C. Dasgupta and ;R.C. Mazumdar, Advs.
Cases Referred(S.C.) and Kalawati Devi Harlalka v. Commissioner of Income
Excerpt:
- .....hospitals and local authorities and also to the public in general for domestic consumption. the west bengal legislature by an act, viz., oriental gas company act, 1960 (west bengal act 15 of 1960), provided for the taking over the management and control of the undertaking of the petitioner for five years with effect from the date to be specified in the notification. on 3rd october, 1960, the west bengal government issued three notifications, the first declaring that the said act would come into force on 3rd october, 1960 and another notification specifying 7th october, 1960, as the date with effect from which the state government would take over the management and control of the undertaking of the petitioner. it is stated that physical control and management was taken over on 17th.....
Judgment:

Debiprosad Pal, J.

1. The petitioner in this case is Messrs. Oriental Gas Company Limited, a company registered under the English Joint Stock Companies Act, 1862. The petitioner was producing gas for supply to industrial undertakings, hospitals and local authorities and also to the public in general for domestic consumption. The West Bengal Legislature by an Act, viz., Oriental Gas Company Act, 1960 (West Bengal Act 15 of 1960), provided for the taking over the management and control of the undertaking of the petitioner for five years with effect from the date to be specified in the notification. On 3rd October, 1960, the West Bengal Government issued three notifications, the first declaring that the said Act would come into force on 3rd October, 1960 and another notification specifying 7th October, 1960, as the date with effect from which the State Government would take over the management and control of the undertaking of the petitioner. It is stated that physical control and management was taken over on 17th November, 1960.

2. The petitioner claims to be a registered dealer under the Bengal Finance (Sales Tax) Act (hereinafter referred to as the Act). It appears from the order of assessment for the four quarters ending 30th June, 1959, that the petitioner filed the return in respect of the four quarters ending 30th June, 1959, on 5th December, 1958, 27th February, 1959, 1st June, 1959 and 9th September, 1959, under the relevant provisions of the Act and also paid the tax amounting to Rs. 1,66,319.63 prior to the taking over of the control and management of the undertaking of the petitioner. Thereafter, the Commercial Tax Officer made an assessment of the petitioner on 16th January, 1967 and determined the tax payable at Rs. 1,72,135.17 and also imposed a penalty under Section 11(1) of the Act for a sum of Rs. 1,000. As the petitioner has already paid the tax of Rs. 1,66,319.63, a sum of Rs. 6,815.54 was determined to be the balance amount payable by the petitioner. A notice under Section 11 of the Act in form VII was also served upon the petitioner on 10th February, 1967, calling upon it to pay the sum of Rs. 6,815.54. As the said amount demanded was not paid within the time allowed, respondent No. 3, the Commercial Tax Officer, Bhawanipur Charge, sent a letter dated 13th April, 1967, to the petitioner to pay up the dues on or before 28th April, 1967, failing which, the petitioner was warned that action under Section 11 (4B) of the Act would be taken. The petitioner thereafter sent a reply dated 2nd May, 1967, informing him that under the provision of the Oriental Gas Company Act, 1960, the State of West Bengal has been made liable for the payment of such liabilities. The Commercial Tax Officer was, therefore, requested to realise the said dues from the State of West Bengal. In spite of the said letter, respondent No. 4, the Certificate Officer, 24-Parganas, issued a notice under Section 7 of the Public Demands Recovery Act for the realisation of the sum of Rs. 6,815.54 and a certificate under Section 4 read with Section 6 of the Public Demands Recovery Act being Certificate Case No. 81 ST(BH) of 1967-68 was started against the petitioner. The petitioner challenged the said certificate proceedings and obtained a rule nisi.

3. The main contention urged on behalf of the petitioner is that in view of Section 4(d) of the Oriental Gas Company Act, 1960, the liability can be enforced only against the State Government which has taken over the management and control of the undertaking of the petitioner-company. The Oriental Gas Company Act, as already referred to, was enacted to provide for the taking over for a limited period of the management and control and the subsequent acquisition of the undertaking of the petitioner. Section 3 of the said Act authorises the State Government to take over for a period of 5 years with effect from the date specified in the notification the management and control of the undertaking of the petitioner. The date specified in the notification for the taking over of the management and control is to be treated as the appointed date. With effect from the said appointed date any proceeding pending or any cause of action existing before the appointed date in relation to the undertaking of the petitioner-company shall cease to be continued or enforced by or against the petitioner-company, its agents, sureties or guarantors. Such a pending proceeding or cause of action may be continued or enforced against the State of West Bengal. The question, therefore, is whether the proceeding which gave rise to the liabilities under the Act for which the recovery proceedings were initiated is a proceeding pending before the appointed date, i.e., 7th October, 196Q. The word 'proceeding' has not been defined under the Act. The expression 'proceeding' has been construed sometime in a narrow sense and sometime in a wider sense. The interpretation given to this expression has varied according to the intent and scope of the statutes in which this word appears. In Halsbury's Laws of England, Vol. I, page 5, paragraph 7, it is laid down :

The term 'proceeding' is frequently used to denote a step in an action and obviously it has that meaning in such phrases as 'proceeding in any cause or matter'. When used alone, however, it is in certain statutes to be construed as synonymous with, or including, an action.

4. The Concise Oxford Dictionary gives the meaning of the word 'proceeding' as used in the legal sense as step taken in legal action. The meaning that is given to the word 'proceeding' occurring in one statute cannot be taken as a safe guide for ascertaining the true import of this word appearing in a different enactment. In some enactments this word means an action or that which initiates an action and in other enactments it may mean a step in an action. Whether one takes the narrow or the wider meaning of the word 'proceeding', on the facts and circumstances of the present case, the proceeding which has resulted in the present liability of the petitioner was pending on the appointed date. Under the Act a registered dealer is, under an obligation to furnish the return by such date and to such authorities as may be prescribed. Before such a registered dealer furnishes the returns required by Section 10(2) of the Act he is obliged to pay the full amount of tax due from him under the Act according to such returns. There cannot be any dispute that the petitioner had filed such returns and also had paid the amount of tax under Section 10(3) of the Act before the appointed date. In such a case, the proceedings for assessment were pending before the appointed date. A proceeding under the Bengal Finance (Sales Tax) Act comprehends the whole procedure for the levy, assessment and collection of the tax liability of a dealer. When some step or action is taken for the ascertainment and imposition of that liability, the proceeding can be said to have commenced under the Act. A return filed under Section 10(2) of the Act is a step in the procedure for the assessment of the liability of a dealer under the Act. By the filing of such a return the machinery for assessment and imposition of the liability is set in motion and in my view with the filing of such a return a proceeding commences under the Act. In view of the fact that such a return was filed before the appointed date, the proceeding was pending in respect of the tax liability for the said period and such a pending proceeding under Section 4(d) of the Oriental Gas Company Act can be continued or enforced against the State of West Bengal and not against the petitioner.

5. It is contended on behalf of the respondent that a proceeding for recovery is distinct and separate from a proceeding for assessment and as the proceeding for recovery was not pending on the appointed date, the tax liability of the petitioner cannot be enforced against the State of West Bengal under Section 4(d) of the Oriental Gas Company Act. In my view, this submission has no force. It is well-settled that there are three stages in the imposition of a tax. There is the declaration of liability which does not depend upon assessment but arises by virtue of the charging Section. Assessment quantifies the liability which is already created by the charging section. Section 11(1) and (2) of the Act sets out the procedure for the assessment of the tax liability. Section 11 (4) of the Act gives the power to recover any amount of tax or penalty unpaid as an arrear of land revenue as if it were payable to the Collector. The recovery proceedings under the Public Demands Recovery Act had been resorted to by reason of Section 11 (4) of the Act. The scheme of Section 11 of the Act, which provides for both the machinery of assessment and of recovery, suggests that a proceeding for assessment comprehends the procedure for declaration and imposition of tax liability and also the procedure for enforcement thereof. This view is supported by the decisions of the Supreme Court in the case of C.A. Abraham v. Income-tax Officer, Kottayam [1961] 41 I.T.R. 425 (S.C.) and Kalawati Devi Harlalka v. Commissioner of Income-tax, West Bengal [1967] 66 I.T.R. 680 (S.C.). Although the said decisions were given on an interpretation of the provisions of the Indian Income-tax Act, the scheme of the Income-tax Act for the purpose of levy, assessment and collection is not materially different from that of the present Act. In my view, a proceeding for recovery is a procedure for the enforcement of the liability determined by the procedure for assessment. Such a proceeding is not a separate and independent one but is a continuation of the proceedings for assessment.

6. The learned counsel for the respondents next contends that the petitioner having participated in the assessment proceeding is not entitled to invoke the application of Section 4(d) of the Act to its case. In my view, such a contention has no substance. It is well-settled that there is no estoppel against a statute. If the statute provides that such a pending proceeding can be continued or enforced only against the State of West Bengal, I do not see any reason why mere participation in the assessment proceeding by the petitioner can disentitle it to the protection afforded by the statute.

7. For the reasons stated above this rule succeeds. There will be a writ in the nature of certiorari quashing the notice dated 10th February, 1967, issued under Section 11 of the Act and the Certificate No. 8151 (BH) of 1967-68 filed in the office of the Certificate Officer, 24-Parganas and the Certificate Case No. 81 ST(BH) of 1967-68. There will also be a writ in the nature of mandamus commanding the respondents to forbear from giving effect to the said notice under Section 11 of the Act. The rule is made absolute to the extent indicated above. There will be no order as to costs.


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