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Hetram Agarwal and ors. Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case Number Civil Rule No. 2324(W) of 1967
Judge
Reported in[1985]58STC115(Cal)
AppellantHetram Agarwal and ors.
RespondentCommercial Tax Officer and ors.
DispositionPetition allowed
Cases ReferredSri Saraswati Oil Company v. Commercial Tax Officer
Excerpt:
- .....be included in. the registration certificate. he has drawn my attention to rule 5 of the central sales tax (registration and turnover) rules, 1957, and has contended that if the commercial tax officer had any intention to refuse the prayer even in part he could have done so only after hearing the petitioners and recording his reasons in writing therefor. but nothing of the kind was done in the present case. dr. pal has strongly contended that the order of the commercial tax officer is quite clear to show that the application was allowed and an order was made directing issue of a registration certificate accordingly. it was but an error that in drawing up the certificate some of the commodities were left out particularly the pulses. dr. pal has also referred to rule 7(1)(c) read with.....
Judgment:

Anil Kumar Sen, J.

1. The petitioners in this writ petition are the partners of a firm known as Begraj Asoke Kumar. They carry on their business at Siliguri. On 16th January, 1959, the petitioners applied for registration of their firm under Section 7 of the Central Sales Tax Act, 1956. The application was made in the prescribed form and in item No. 16(a) the petitioner specified the various commodities they had been dealing with for resale in order that those commodities may be set out in the registration certificate. In the present application we are concerned with one such commodity, viz., pulses, which was set out in that application by the petitioners. This application was disposed of by an order dated 18th April, 1959, passed by the Commercial Tax Officer which reads as follows:

Issue R. C. to the dealer under Section 7(1) of the Central Sales Tax Act, 1956. Start 11(2) for the period from 24.6.58 up to the date prior to the date of registration.

2. The order reads as one which allowed the petitioners' prayer in its entirety and without any reservation whatsoever. But the registration certificate that was actually issued specified initially one commodity 'groundnut'. Eight other commodities like mustard oil, etc., were incorporated on 8th June, 1959. The registration certificate so issued is R.C. 401A (J.P.) Central, which has since been renumbered 73A (S.C.) Central. It is not in dispute that at all material times pulses were not subjected to any sales tax in the State of West Bengal but the petitioners who were purchasing pulses from other States like Bihar and U. P. were freely using the declaration forms when issued by the Commercial Tax Officer, Siliguri, to support the sales by their vendors as sales to registered dealer. In the accounts and registers maintained by the petitioners they had clearly been showing such use of the declaration forms for purchase of pulses from other States to the knowledge of the Commercial Tax Authorities and without any objection until April, 1966. According to the petitioners, in April, 1966, for the first time it was noticed by the Commercial Tax Officer that though the petitioners had been using declaration forms for purchasing pulses, it was not much regular as that article was not specified in the registration certificate. On 29th April, 1966, in order to remove the error the petitioners applied for amendment and the amendment was readily allowed on 7th June, 1966, bringing in pulses on the registration certificate. In the meantime, however, the respondents initiated a penalty proceeding under Section 10A read with Section 10(b) of the Central Sales Tax Act, 1956, on the ground that the petitioners had misused the declaration forms. In August, 1967, the Commercial Tax Authorities at Siliguri informed the Commercial Tax Authorities of other States that the petitioners were not entitled prior to June, 1966, to use the declaration forms in support of the purchases made by them from other States. As a result the petitioners' vendors were called upon by the Commercial Tax Authorities of those States to pay sales tax for which earlier exemption was obtained against the declaration forms issued by the Commercial Tax Authorities, Siliguri. Faced with these circumstances the petitioners made an application on 26th August, 1967, praying therein for an order 'giving retrospective effect of the amendment order dated 7th June, 1966, from the date of registration certificate, i.e., 18th April, 1959, or for amending the registration certificate including items mentioned in the application for registration and not included in the R. C. by the C. T. 0., Jalpaiguri Charge, from the date of R. C., i.e., 18th April, 1959'. This application was rejected by the Commercial Tax Officer, respondent No. 1, by an order dated 30th October, 1967, on the view that he is not competent either to review or to revise any order passed by his predecessor in office. It is this last order which is the subject-matter of challenge though at the hearing an alternative prayer has been added with leave of the Court for revising the old grant dated 18th April, 1959, in terms of the order passed by the Commercial Tax Officer and including pulses as one of the items of commodities for resale in the registration certificate.

3. The rule is being contested by the respondents and the facts set out hereinbefore are not mostly disputed. According to the respondents, however, the petitioners' initial application for registration was not entirely allowed by the Commercial Tax Officer and their prayer for inclusion of pulses in the certificate was refused. It was incorporated in the certificate on 7th June, 1966, but no such amendment can be made with retrospective effect. Petitioners' prayer made on 26th October, 1967, according to the respondents, is misconceived as the present Commercial Tax Officer has no authority to review or revise the order of his predecessor by which order it must be deemed that the petitioners' prayer for registration with pulses as one of the items for resale had impliedly been refused by the then Commercial Tax Officer.

4. Dr. Debi Prosad Pal, appearing on behalf of the petitioners, has contended that when an application under Section 7(1) of the Central Sales Tax Act, 1956, is made in the prescribed form setting out the necessary particulars, the Commercial Tax Officer under Section 7(3) is merely to satisfy himself that the application is in conformity with the provisions of the Act and the Rules. Once he is satisfied that it is so the mandatory consequence follows, viz., he is to register the applicant and grant him a certificate of registration specifying the goods for the purposes of Section 8(1). He has, therefore, contended that on the petitioners' application dated 16th January, 1959, the Commercial Tax Officer was obviously satisfied that it was in conformity with the provisions of the Act and the Rules and he had no other alternative than to register the petitioners' firm and issue the certificate as prayed for. There was no scope for excluding some of the commodities which on the application were to be included in. the registration certificate. He has drawn my attention to Rule 5 of the Central Sales Tax (Registration and Turnover) Rules, 1957, and has contended that if the Commercial Tax Officer had any intention to refuse the prayer even in part he could have done so only after hearing the petitioners and recording his reasons in writing therefor. But nothing of the kind was done in the present case. Dr. Pal has strongly contended that the order of the Commercial Tax Officer is quite clear to show that the application was allowed and an order was made directing issue of a registration certificate accordingly. It was but an error that in drawing up the certificate some of the commodities were left out particularly the pulses. Dr. Pal has also referred to Rule 7(1)(c) read with Rule 7(2) of the Bengal Sales Tax Rules framed under the Bengal Finance (Sales Tax) Act, 1941, read with Rule 11 of the Central Sales Tax (West Bengal) Rules, 1958, and has contended that it was obligatory on the part of the Commercial Tax Officer to incorporate in the certificate the class or classes of goods for which the registration was asked for in the same terms as were used by the dealer in the application form. Therefore, he has contended omission of pulses from the registration certificate was a pure error and the petitioners applied for rectification of the error under Section 7(4)(a) of the Central Sales Tax Act, 1956. He has contended that Section 7(4)(a) contemplates different circumstances in which the certificate may be amended. It may be amended due to subsequent changes in the name, place or the nature of business or change of the class or classes of goods in which the dealer carries on business. Strong emphasis, however, has been laid by Dr. Pal on the fact that apart from the aforesaid reasons Section 7(4)(a) also authorises amendment for any other reason. According to him, the petitioners' application dated 29th April, 1966, and more specifically the one dated 26th October, 1967, was an application for amendment for removing an error and not due to change of the class or classes of goods in which the petitioners were carrying on business. Therefore, the Commercial Tax Officer had an obligation under Section 7(4)(a) to grant the amendment and rectification. Dr. Pal has contended that the Commercial Tax Officer totally misread the petitioners' prayer in thinking that it was a prayer for review or revision of the order passed by his predecessor and this misconception has resulted in an order of rejection dated 30th October, 1967, which is erroneous on the face of the records. Dr. Pal has further contended that when the amendment sought for was merely one to remove an error it should necessarily be retrospective in effect because the error which crept in on 18th April, 1959, by erroneous omission of some of the commodities when removed would naturally bring in those commodities on the certificate from the date of the initial order. He has relied on a decision of D.N. Sinha, J. (as his Lordship then was), in the case of Krishna Kanta Pal v. Additional Commissioner of Commercial Taxes [C.R. No. 284(W) of 1962 disposed of on 10th December, 1963]. This decision fully supports the contention of Dr. Pal to the effect that once an amendment is allowed removing such a defect, the amendment takes retrospective effect from the date of the initial grant.

5. Mr. S.C. Bose, appearing on behalf of the respondents, has however, contended that even if the petitioners' application for amendment be considered to be one under Section 7(4)(a), amendments can only be allowed prospectively from the date of the order or at best from the date of the application. He is strongly disputing the contention of Dr. Pal that an amendment sought for, even if it be one from removing any error, can ever be allowed with retrospective effect. According to Mr. Bose, there is no sanction in the statute for such retrospective amendment. He no doubt conceeds that the decision relied on by Dr. Pal stands against his contention bat he has relied on a decision of Banerjee, J., in the case of Sri Saraswati Oil Company v. Commercial Tax Officer [C. R. No. 361(W) of 1962 disposed of on 11th September, 1963] reported in (1963) 1 RLR 197. In the decision relied on by Mr. Bose, no doubt, Banerjee, J., observed 'there is no provision in the Act for amending registration certificate with retrospective effect and I cannot command the respondents so to do'.

6. But the fact remains that in the case before Banerjee, J., amendment was sought for due to subsequent change in the class or classes of goods the dealer was dealing with and what was claimed was retrospective effect from the date of the application and not from the date of the original grant. It was clearly not a case of amendment for rectification of any defect as in the present case and as was the case before Sinha, J.

7. Be that as it may, on the pleadings before me I have no manner of doubt that pulses were omitted from the registration certificate when it was issued on 18th April, 1959, not because the petitioners' prayer in this respect was rejected on merits by the Commercial Tax Officer but by some mistake or misapprehension. It is for this reason that although it was not included in the registration certificate no objection was taken by the authorities to the petitioners using the declaration forms to support purchases made by them from other States. I deem it unnecessary to enter into the controversial issue as to whether the Commercial Tax Officer in allowing an amendment under Section 7(4)(a) could do it with a retrospective effect or not because on the alternative prayer now made before me, as I am satisfied, that the initial grant of the certificate is erroneous on the face of the record and on the face of the order by the Commercial Tax Officer allowing the petitioners' application, I would set aside the said grant and on condoning the delay issue a mandate upon the respondents to correct the registration certificate incorporating therein all the commodities which were sought to be incorporated, including pulses, on the petitioners' application dated 16th January, 1959. It may further be observed that the impugned order of the Commercial Tax Officer dated 30th October, 1967, is clearly erroneous on the face of the record because he could not have rejected the application dated 26th October, 1967, by treating it as an application for review or revision.

8. On the conclusions as above this application succeeds and the rule is made absolute.

9. Let a writ in the nature of mandamus do issue directing the Commercial Tax Officer to rectify the registration certificate which was issued on 18th April, 1959, by incorporating therein all the commodities as set out in the petitioners' application dated 16th January, 1959, necessarily including pulses therein and further commanding the respondents to treat such rectified registration certificate as the certificate issued on 18th April, 1959.

10. There will be no order for costs.


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