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Surja Mohan Chakraborty and ors. Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 7935 (W) of 1972
Judge
Reported in[1977]39STC462(Cal)
AppellantSurja Mohan Chakraborty and ors.
RespondentThe State of West Bengal and ors.
Appellant AdvocateGopal Chandra Chakravartty and ;Narayan Chandra Bhattacharjee, Advs.
Respondent AdvocateSatnarendra Nath Dutta, Adv.
Cases ReferredCalcutta v. Lakhmani Mewal Das
Excerpt:
- m.n. roy, j.1. the petitioners, who are partners of messrs. southern electric company (hereinafter referred to as the said petitioners) and deal inter alia amongst others in hardwares, torches, batteries, fittings, cablewares, fans and electrical parts and accessories and bulbs, moved and obtained the rule on 27th november, 1972, against a notice in annexure b, which is dated 22nd august, 1972 and was issued by the assistant commissioner, commercial taxes, calcutta, south circle, respondent no. 4, whereby they were directed to show cause on 13th september, 1972, as to why a security of rs. 1,00,000 under section 7(4a)(i) of the bengal finance (sales tax) act, 1941 (hereinafter referred to as the said act), should not be demanded from them.2. it has been stated by the said petitioners that.....
Judgment:

M.N. Roy, J.

1. The petitioners, who are partners of Messrs. Southern Electric Company (hereinafter referred to as the said petitioners) and deal inter alia amongst others in hardwares, torches, batteries, fittings, cablewares, fans and electrical parts and accessories and bulbs, moved and obtained the rule on 27th November, 1972, against a notice in annexure B, which is dated 22nd August, 1972 and was issued by the Assistant Commissioner, Commercial Taxes, Calcutta, South Circle, respondent No. 4, whereby they were directed to show cause on 13th September, 1972, as to why a security of Rs. 1,00,000 under Section 7(4a)(i) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act), should not be demanded from them.

2. It has been stated by the said petitioners that the partnership in question at all material times had and still has a great reputation and goodwill in the market, as a result whereof they could obtain distributorship and authorised dealership and recognised wholesalership of firms of repute, amongst others, like the Union Carbide India Ltd., Philips India Ltd., Crompton and Greaves Ltd. and Belrex India Ltd. It is also an undisputed fact that the said petitioners are registered under the said Act and the Central Sales Tax Act, 1956, having registration Nos. BH/3469A and 697A/BH/Central respectively under the Acts as aforesaid. It has been contended by the said petitioners that in terms of the conditions of such registration and in accordance with the requirements of statute, they have duly filed quarterly returns along with requisite treasury or Reserve Bank challans up to June, 1972 and they are neither in default on that account or on account of any arrear taxes. In fact, it has been stated that there is no return or challan outstanding against them up to the said period of June, 1972. The necessary particulars of the assessments have been shown in paragraph 7 of the petition. The accounting year of the petitioners is 4 (four), quarters ending on Akshaya Tritiya of Bengali Calendar and their assessments have been completed up to the 4 quarters ending Akshaya Tritiya 1375 B.S. They have further stated that until the middle of November, 1971, they found no trouble or hindrance in the matter of carrying on their business and in fact they had received all co-operation from the respondents in all matters including the issue and grant of necessary declaration forms for their purchases within and outside the State. It has also been contended by the said petitioners that throughout their dealings they have neither lost any nor misused the declaration forms.

3. It has been stated that on 17th November, 1971, there was a surprise and sudden visit of the said petitioners' place of business by the officers of the Bureau of Investigation, Finance Department, Government of West Bengal and there was seizure of almost all the primary books of account and records and the partners were also interrogated for the purpose of an investigation under the said Act and the Rules framed thereunder. The said action, the said petitioners have challenged in Civil Rule No. 4241(W) of 1971, which was pending at the time of the issue of the present rule.

4. It has been alleged that thereafter the said petitioners made repeated requests and representations for necessary declaration forms and practically all the times the issue of such forms were rejected under Rule 27AA(2) of the said Rules. There is also no dispute that the said petitioners challenged the bona fide and validity of such refusals in this court. The issue of declaration forms was however refused mainly on the ground of the said petitioners' neglect or failure to file necessary returns. The said petitioners have alleged that as the necessary books of account were seized in the manner as mentioned hereinbefore, they had no access to the relevant records and, as such, default, if any, had occurred. However, being baffled and placed in such awkward and embarrassing situation for the non-availability of the records, the said petitioners moved and made representations before the authorities concerned for inspection of the seized records, whereupon they were granted opportunities to inspect the relevant records and to take extracts of them. It has been stated that on such inspection and extracts being taken, the said petitioners on 19th July, 1972, submitted revised returns. The particulars of such returns are mentioned and available in paragraph 16 of the petition.

5. Since the irregularities in the returns on submission of the revised returns were removed and, as such irregularities were mentioned as the ground for refusing declaration forms, the said petitioners thereafter on 12th August, 1972, applied for the supply of declaration forms. But the issue of the said declaration forms was again withheld. The said petitioners have stated that on 10th November, 1971, they were supplied with declaration forms for the last time and although they required such forms essentially for the purchases made by them duly, the respondents without any authority, arbitrarily and without jurisdiction or in capricious use of the same, refused them such right to get the declaration forms. It has been stated that since the purchase of taxable goods of the said petitioners under the said Act is. approximately for Rs. 2 lacs per month, so at all material times they required and still they require the declaration forms as asked for and in fact they have suffered and are suffering much for such non-supply of the said forms. It has also been stated by them that finding no other way, they made another application on 12th August, 1972, for supply of the required number of declaration forms and although the said application was duly received by the authorities concerned, they, without acceeding to such request, issued the impugned order, particulars whereof are mentioned hereinbefore, most arbitrarily and unauthorisedly. The said petitioners have further challenged the said order to be a mala fide one and issued in colourable use and exercise of power and that too for the purpose of creating some pressure on them so that they cannot ask for the issue of the declaration forms. Such mala fide act has also been imputed because according to the said petitioners, the respondents had no reason or basis in thinking that they will not make proper payment of tax.

6. Initially no rule, but a civil order was issued in this case and, in fact, the rule has been issued after hearing the respondents. The respondents at that stage filed their affidavits-in-opposition and not in this rule. Mr. Dutta appearing for them stated that the respondents will not use any separate affidavits in the rule but they will rely on the affidavits already filed. In that view of the matter, by consent of parties, the affidavits as used at the civil order stage have been taken as affidavits in the rule.

7. In the three affidavits, which have been filed by the respondents, apart from denying the material allegations and allegations of mala fide, it has been stated that because of the acts and actions of the said petitioners to evade sales tax by improper use of declaration forms, the entry, search and seizure by the officers of the Bureau of Investigation was made and even in spite of due opportunities being given, there was refusal by the said petitioners to appear with the relevant books of account to complete the investigation and, in fact, whenever they filed improper returns they took the plea of the seizure of the books of account, which was unreal, the more so when they were allowed inspection of records relevant according to them and were permitted to take extracts therefrom. It has been contended that from the books of account of the said petitioners it has transpired that sales involving about twenty lacs of rupees are covered by declaration forms from dealers whose registrations have been cancelled and who are not traceable at all. The particulars of the results of the enquiry appear in annexure X to the affidavit dated 26th September, 1972. The contention of the said petitioners that the declaration forms were never misused was denied and it was contended that the Commissioner of Commercial Taxes had and has every power or authority to take such action as has been taken in the instant case, on the basis of steps taken by the Bureau of Investigation or the report as mentioned. It has been stated in the affidavit dated 27th September, 1972, by respondents Nos. 2 and 5, after quoting the orders passed in connection with the applications for declaration forms, that excepting an application for such forms which was rejected by an order dated 3rd February, 1972, there was no application by the said petitioners before the deponent to the said affidavit, viz., respondent No. 5, the Commercial Tax Officer concerned. The action of respondent No. 4, viz., the Assistant Commissioner of Commercial Taxes concerned, in the matter of asking for the security, in view of the evasion of tax as alleged to have been committed by the said petitioners, was also sought to be justified as due and proper. The withholding of declaration forms, on the grounds as mentioned hereinbefore was also sought to be justified and a chart in annexure M to the said affidavit has been produced giving the particulars of the increase in the proportion of sales against declaration forms in the years 1969-70, 1970-71 and 1971-72 in comparison to those in the earlier periods and it has been contended that such an increase suggests that the said petitioners' sales against declaration forms in those periods were disproportionate in comparison to their past sales.

8. Mr. Chakravartty, appearing in support of the rule, first placed Section 7(4a) of the said Act as prevalent on the relevant date and which is to the following effect:

7. (4a) The Commissioner may, for good or sufficient reasons to be recorded in writing,-

(i) demand from any registered dealer or any person who has applied for registration under this Act, after giving such dealer or person an opportunity of being heard, reasonable security for the proper payment of tax payable by him under this Act;

(ii) demand from any registered dealer or any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910, reasonable security for the proper use and safe custody of the forms referred to in the proviso to Clause (bb) of Sub-section (1) of Section 5 or in the proviso to Clause (a) of Sub-section (2) of that Section, whether obtained from the prescribed authority or furnished by the registered dealer or an undertaking to whom the goods have been sold,

9. and submitted that the said Section admittedly contemplates two parts when the Commissioner may for good and sufficient reasons to be recorded in writing can demand security from a registered dealer and they are (i) for the proper payment of tax payable by the dealer and (ii) for the proper use and custody of the forms referred to in the proviso to Clause (a) of Sub-section (2) of Section 5, which may be given by the prescribed authority. It may be mentioned that the provisions of Section 7(4a)(i) as on 7th April, 1975, are the same as in Section 7(4a)(i) of the Act relevant in this case and which was effective from 1st May, 1968. Mr. Chakra-vartty thereafter placed the impugned notice and contended that the refusal in the instant case was for compliance with ground (i) above, viz., for proper payment of tax and, in fact, the refusal on that ground was not only baseless but also showed total non-application of mind as taxes were admittedly paid duly and properly, apart from the fact that there was no prior allegation at all for any non-payment or irregular payment of tax against the said, petitioners, the more so when taxes have been duly and admittedly paid and the said petitioners are not in default or in arrears in such payment and, furthermore so, when such statements of the said petitioners have not at all been denied by the respondents in any of their returns to the rule. In view of the above, it was further submitted that the impugned notice in annexure B was bad and unauthorised, apart from the fact that the same disclosed no satisfaction of the Commissioner and, as such, the said order was also void, being made in arbitrary and capricious use of power and when admittedly the provisions of the said Act, viz., Section 7(4a) do not empower him to act in such an arbitrary manner. It may be mentioned that in this case the notice was issued by the Assistant Commissioner of Commercial Taxes and there is no dispute that he was invested with the powers of the Commissioner under the said Act and the Rules framed thereunder and in the matter of making the impugned order. In support of his contentions, Mr. Chakra-vartty referred to the determination of this court in the case of Durga Prosad Khaitan v. Commercial Tax Officer [1957] 8 S.T.C. 105. The petitioner in that case, as proprietor of the firm Durga Prosad Shyamsundar applied for registration under the said Act. On the basis of a report of the Inspector of the Commercial Taxes Department and the results of the inspection of the books, the Commercial Tax Officer recommended to the Commissioner that a security of Rs. 10,000 under Section 7(4a) of the said Act should be demanded. The Commissioner, however, reduced the amount of such security to Rs. 5,000 and on the non-compliance with such demand, his application for registration was cancelled. Apart from challenging the constitutional validity of the said Section 7(4a), it was submitted that security can only be demanded for payment of tax 'payable' by the dealer under the said Act and it has been held that:

Section 7(4a)(i) of the Bengal Finance (Sales Tax) Act, 1941, which gives power to the Commissioner to demand reasonable security for the proper payment of tax payable under the Act, does not confer unfettered and arbitrary power upon him. The power to levy a tax would include the power to impose reasonable safeguards in collecting it. The word 'payable' in Section 7(4a)(i) cannot be construed as meaning a point of time when assessment has been completed and notice of demand has been served. The point of time which is contemplated is when a dealer who has arrived at the taxable quantum applies for registration. The word 'payable' means 'that will become payable'.

10. It has further been held that the restrictions imposed by the Section are reasonable restrictions and the provisions of the Section do not contravene the provisions of Article 19(1)(g) and, as such, the Section is not ultra vires. This observation of course will not be relevant in this case on the basis of the arguments as advanced.

11. Mr. Chakravartty submitted that since the word 'payable' in Section 7(4a)(i) cannot be construed as meaning a point of time when assessment has been completed and notice of demand has been served, so the asking of security at the stage of this case was unauthorised, the more so when admittedly the said petitioners were not in default and nothing was due and outstanding from them. In support of the contentions, reliance was placed on the Special Bench judgment of this Court in the matter of Recols (India) Ltd. [1953] 4 S.T.C. 271 (S.B.). The company in that case was ordered to be wound up on 18th July, 1950, but the notice of demand for the tax assessed under Section 11(1) of the said Act, was served on 17th May, 1950, directing payment on or before 30th June, 1950. It has been observed by Chakravartti, C.J. and Lahiri, J., agreeing with him, that:

The Bengal Finance (Sales Tax) Act, 1941, does not intend that the tax payable under the Act would become due and payable at the time the return became due to be filed. The amount paid under Section 10(3) according to the return cannot be tax payable under the Act in the true sense of the term. The tax is payable on the taxable turnover and the taxable turnover is to be determined by making the various deductions specified in Section 5. The assessee can make the deductions as best as he can, on his own understanding of the provisions of Section 5 and on his own view of the facts, but before the deductions are checked and finally settled as allowable or disallowable and the taxable turnover is thereby determined, no tax due and payable under the Act can come into existence.

The only two types of tax debts under the Sales Tax Act that may possibly come to be considered under Section 230(1 )(a) of the Indian Companies Act, 1913, are (i) the balance of tax due according to a return and (ii) the tax due under an assessment. In both cases, the debt becomes payable only when a notice of demand is served.

12. Sinha, J., while agreeing with the order proposed by Chakravartti, C.J., has also observed that:

(1) Sales tax from a dealer chargeable under the Bengal Finance (Sales Tax) Act, 1941, is 'due' immediately upon his gross turnover exceeding the taxable quantum during the period prescribed by the Act. For determining the taxable turnover, all due allowances must be made under Sections 5 and 6 of the Act. But as soon as there is a taxable turnover, the tax is due.

(2) But the sales tax payable under the Act becomes 'payable' as follows :-

(a) Where the dealer has filed his return under Section 10(2) and as a condition precedent paid in, the amount admitted in the return, when the return was filed and to the extent admitted therein. This however will not apply to any excess paid because to that extent it is not a tax payable under the Act and the question does not arise ;

(b) Where the dealer has not filed a return or filed a return which is not correct or complete, then as to the amount assessed under Section 11(1) and (2), or the amount so assessed less the amount already paid under Section 10(3), together with penalties, if any, payable under the Act, immediately upon the notice under Section 11(3) being served upon him in the prescribed form.

13. It was further argued that, in any event, the security that was asked for was not only excessive but arbitrary and unreasonable too.

14. Mr. Dutta, appearing for the respondents argued that the impugned order in the instant case being revisable under Section 20(3) and (4) of the said Act, which are to the following effect:

20....

(3) (a) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner may, on his own motion, revise any assessment made or order passed by a person appointed under Section 3 to assist him.

(b) 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 under Sub-section (1), passed by a person appointed under Section 3 to assist him.

(c) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Tribunal may, upon application, revise any appellate or revisional order passed in the matter of assessment.

(4) Subject to such rules as may be prescribed, any assessment made or order passed under this Act or the Rules made thereunder by any person appointed under Section 3 or Section 3A may be reviewed by the person passing it upon application or of his own motion (and subject as aforesaid, the Tribunal may, in like manner and for reasons to be recorded, review any order passed by it, either on its own motion or on application),

15. the present provisions of Section 58 of the 42nd amendment of the Constitution of India, which is to the following effect :

58. Special provisions as to pending petitions under Article 226.- (1) Notwithstanding anything contained in the Constitution, every petition made under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to in this Section as a pending petition) and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition before that day shall be dealt with in accordance with the provisions of Article 226 as substituted by Section 38.

(2) In particular and without prejudice to the generality of the provisions of Sub-section (1), every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition shall stand vacated :

Provided that nothing contained in this Sub-section shall affect the right of the petitioner to seek relief under any other law for the time being in force in respect of the matters to which such petition relates and in computing the period of limitation, if any, for seeking such relief, the period during which the proceedings relating to such petition were pending in the High Court shall be excluded.

(3) Every interim order (whether by way of injunction or stay or in any other manner) which was made before the appointed day, on, or in any proceedings relating to, a pending petition [not being a pending petition which has abated under Sub-section (2)] and which is in force on that day, shall, unless before the appointed day copies of such pending petition and of documents in support of the plea for such interim order had been furnished to the party against whom such interim order was made and an opportunity had been given to such party to be heard in the matter, cease to have effect (if not vacated earlier),-

(a) on the expiry of a period of one month from the appointed day, if the copies of such pending petition and the documents in support of the plea for the interim order are not furnished to such party before the expiry of the said period of one month ; or

(b) on the expiry of a period of four months from the appointed day, if the copies referred to in Clause (a) have been furnished to such party within the period of one month referred to in that clause but such party has not been given an opportunity to be heard in the matter before the expiry of the said period of four months.

(4) Notwithstanding anything contained in Sub-section (3), every interim order (whether by way of injunction or stay or in any other manner) which was made before the appointed day, on, or in any proceedings relating to, a pending petition [not being a pending petition which has abated under Sub-section (2)] and which is in force on that day, shall, if such order has the effect of delaying any inquiry into a matter of public importance or any investigation or inquiry into an offence punishable with imprisonment or any action for the execution of any work or project of public utility, or the acquisition of any property for such execution, by the Government or any corporation owned or controlled by the Government stand vacated.

Explanation.-In this Section, 'appointed day' means the date on which Section 38 comes into force',

16. would be a bar and this court, in view of the amended provisions of Article 226(3), as incorporated by the said amendment and which is to the following effect:

226....

(3) No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force,

17. should not interfere and the more so when such provisions have become effective on and from 1st February, 1977. Mr. Dutta further contended the impugned notice to be an order, which was of course disputed by Mr. Chakravartty. The particulars of his arguments would be mentioned hereafter.

18. Mr. Dutta also produced the original records of the connected proceedings and referring to the following entry :

Seen proposal of the C.T.O. for demanding security of Rs. 1,00,000 under Section 7(4a)(i) of the Act.

Please issue show cause notice fixing hearing on 13th September, 1972, at 11 a. m.,

19. submitted that since the above order shows that the proposal in the form of the report was perused and thereafter the endorsement was made, on the basis whereof the impugned notice was issued, there would be no occasion for holding that there was either non-application of mind or satisfaction was not duly recorded or formed. He submitted that when the report in question was looked into and thereafter the recording was made, it should be held and presumed that the same was done duly and there was no irregularity or illegality and there was at least implied satisfaction. He has further argued relying on the determination in the case of Nand Lal Raj Kishan v. Commissioner of Sales Tax, Delhi [1961] 12 S.T.C. 324 (S.C.), that when an application for registration certificate has been made or put forward, it would be within the power and competence of the Commissioner to demand reasonable security under the said Act and more particularly under Section 8A of the said Act, as in force in Delhi and which is to the following effect:

The Commissioner, if it appears to him to be necessary so to do for the proper realisation of the tax levied under this Act, may impose for reasons to be recorded in writing as a condition of the issue of a registration certificate to a dealer or of the continuance, in effect, of such a certificate issued to any dealer, a requirement that the dealer shall give security up to an amount and in the manner approved by the Commissioner for the payment of the tax for which he may be or become liable under this Act.

20. The petitioner in that case, against whom an order demanding security was passed by the Commissioner, challenged the constitutional validity of the Section contending that it gave (i) an undefined, unlimited and unrestricted power to the Commissioner ; (ii) it fixed no limit with regard to the amount of security which might be demanded ; and (iii) it did not provide for any inquiry. On such contentions it has been observed that:

(1) that the power conferred on the Commissioner by the Section was not an unlimited or unrestricted power ;

(2) that the power to levy a tax included the power to impose reasonable safeguards in collecting it and demanding security for the proper payment of the tax payable under the Act was neither an arbitrary nor an unreasonable restriction ;

(3) that the amount that could be demanded as security must depend on the nature of the business and its turnover and must have relation to the payment of the tax for which the person concerned might become liable under the Act. Moreover the order of the Commissioner under Section 8A was subject to revision by the Chief Commissioner and, therefore, even in the matter of the amount of the security, the power of the Commissioner was not unlimited or unrestricted ;

(4) that although the Section did not provide for any enquiry, the principles of natural justice would apply and the petitioners were given an opportunity to say whatever they had to say in defence;

(5) that the order of the Commissioner demanding security was therefore not invalid.

21. It was thus submitted by Mr. Dutta that the action as taken in the instant case was thus within the jurisdiction and competence of the authority concerned and, as such, or if there was a mere irregularity, no interference should be made. In support of such contentions, Mr. Dutta relied on the case of Madanlal Mahawar v. Commercial Tax Officer, Central Section, West Bengal [1965] 16S.T.C. 1071, wherein it has been observed that the assessment of sales tax made without service of notice in form VI or on the basis of irregular or incomplete notice may be at best an irregularity but does not touch the jurisdiction to assess and if, as a result of such irregularity, an assessee is prejudiced, the assessment may be set aside on the ground of irregularity prejudicing the assessee, but an assessment does not become a void one because of invalidity or irregularity or absence of notice. The said determination has also laid down the theory of waiver considering the conduct of the assessee and the more so when the assessee intends to be heard in support of the return and has asked for an opportunity to make submissions. It has further been observed in that case that when an authority passes an order which is within its competence, the same cannot fail merely because it purports to be made under a wrong provision, if it can be shown to be within its powers under any other rule. It has also been observed that the validity of an order should be judged on consideration of its substance and not on its form only. In view of the above and in view of the contentions of the respondents that the actual tax evasion would be about 23 lacs and security at 6 per cent on that would certainly be more than 1 lac, it was submitted that there was no irregularity or unreasonableness in the impugned notice. It was further submitted by Mr. Dutta that since a notice has just been issued and no final determination made, no interference at this stage should be made and the more so when the said petitioners have every right and opportunity to raise the points as raised in this case before the appropriate authority and to have the notice or order set aside on proper materials. Mr. Dutta then submitted that the Commissioner was duly authorised and justified in acting on the report and in fact under Section 20(3) and (4) he has power to revise. In support of such contentions, reliance was placed on the case of Ram Kanai Jamini Ranjan Pal Private Ltd. v. Member, Board of Revenue, West Bengal [1970] 26 S.T.C. 489. The assessee in that case was a dealer registered under the Bengal Finance (Sales Tax) Act, 1941. While the revision petition of the assessee was pending before the Additional Commissioner, Commercial Taxes, he received a report of investigation and examination made by the Commercial Tax Officer (Central Section) under Section 14 of the Act. The Additional Commissioner forwarded a copy of this report to the assessee for preferring objections, if any, against the findings of the Investigating Officer as it might lead to further enhancement of the gross turnover at the revisional stage. In response, the assessee filed a written statement and also appeared before the Additional Commissioner, who enhanced the assessee's turnover. The assessee thereafter filed a revision petition before the Board of Revenue, which rejected it and upheld the order of the Additional Commissioner of Commercial Taxes. On those facts, a point arose whether in exercise of the power of revision under Section 20(3) of the Bengal Finance (Sales Tax) Act, 1941, the Commissioner is competent to take into consideration additional materials found under Section 14 but not made available to the assessing officer and to reassess the gross turnover of a dealer and whether under the Section the Commissioner can revise any assessment or order passed and there is no justification to qualify this power by saying that he cannot revise to bring in escaped assessment. He can also, in revision, enhance the assessment and, on a reference, it has been held that :

The Additional Commissioner of Commercial Taxes had authority and jurisdiction under Section 20(3) of the Act, read with Rule 80A of the Bengal Sales Tax Rules, 1941, to admit or rely on the report of the Commercial Tax Officer pursuant to an enquiry under Section 14(1) of the Act even though it was initiated before the filing of the revision petition but was considered along with the revision petition with reasonable opportunity to the assessee of being heard.

22. Mr. Chakravartty, in reply to the preliminary point as to the maintainability of the petition, in view of the 42nd amendment of the Constitution of India, placed the provisions of Section 58 and Article 226(3) and submitted that those provisions read along with Section 20(3) and (4) of the said Act, would make it clear that from the impugned notice, which is not an order as alleged, there is no other relief or remedy available under the said Act and, as such, the present provisions of Article 226(3) would not be a bar. In any event, he submitted that the notice in annexure B cannot be treated as an order which is revisable. He also submitted that since 'order' means the formal expression of any decision, so the impugned notice in the said annexure cannot be treated or termed as an order because by the same, no formal expression of any decision has in fact been made and the more so when the matter has not yet been decided finally. But at the same time he contended that the security as demanded in the facts of the case being unreasonable, this court can and should interfere and that too when the power has been exercised in an arbitrary manner.

23. There is no dispute that the challenge of the said petitioners may come either under Clause (b) or (c) of the present Article 226(1), which are in the following terms :

226. (1)(a) ....

(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder ; or

(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (b) where such illegality has resulted in substantial failure of justice,

24. and, as such, if there is any other remedy for the necessary redress of the grievances under the said Act, then the petition would not be maintainable. The provisions of Section 20(3) and (4), as referred to by Mr. Dutta, would be of no avail or assistance in my view. The impugned notice, not being either an assessment or order, finally determining the rights of the said petitioner, is not revisable under those provisions and, as such, Mr. Chakravartty is right in his submissions that the present provisions of Article 226(3) would not be a bar in maintaining the petition, the more so when the impugned notice or order in annexure B would not come within the category of the orders as mentioned in the several clauses of Sub-section (3) and of Sub-section (4) of Section 20 of the said Act. Thus, the preliminary point as raised by Mr. Dutta fails.

25. In that view and in view of the fact that the use of the words 'for good and sufficient reasons', it may be inferred or the legislature intended that such order in annexure B was quasi-judicial. If it is so, then let me consider whether such order was due, proper and valid and whether the same was issued in due exercise of power. Under Section 7(4a)(i) of the said Act, the Commissioner, here in this case, the Assistant Commissioner, respondent No. 4, in exercise of powers, could demand security to be furnished in case he considers the same necessary for the proper realisation of the tax. But such power cannot, in any event, as held in the case of Nand Lal Raj Kishan v. Commissioner of Sales Tax [1961] 12 S.T.C. 324 (S.C.), be an unlimited or an unrestricted one and, as has been observed in the case of Durga Prosad Khaitan v. Commercial Tax Officer [1957] 8 S.T.C. 105, such power to levy a tax would include the power to impose reasonable safeguards for collecting the tax and, consequently, to demand reasonable security for the proper payment of such tax under the said Act and such authority is neither arbitrary nor could be considered as an unreasonable restriction. Thus, from the aforementioned determination, it is obvious that respondent No. 4 had jurisdiction to ask for security, on being satisfied and for reasons to be recorded in writing. Before I take up the case as made out on 'satisfaction' and 'reasons to be recorded in writing', I think I must dispose of the other argument as advanced on the ground of reasonableness or otherwise of the security as demanded.

26. It is true that the said Act does not set out any limit or criteria or standard for fixation of the security. As a general proposition of law, as has been held in the case of Dwarka Prasad Laxmi Narain v. State of U.P. A.I.R. 1954 S.C. 224. the grant of a power which is without limit and which might be used arbitrarily, would be void and in terms of the determination in the case of Tika Ramji v. State of U.P. A.I.R. 1956 S.C. 676. when there is a possibility of obtaining relief from a higher authority, the discretion of the original authority cannot be said to be, absolute or uncontrolled. When there is no other provision for moving any higher forum from such a notice or order in Annexure B, the action sought to be taken or proposed on that basis, would be justiciable in a proceeding like the one under consideration. The respondents have stated in their returns to the rule that 6 per cent security on Rs. 21 lacs, would be more than a lac and, as such, the security as has been asked for, was neither excessive nor harsh or unreasonable. They have also annexed a chart to support and substantiate the basis of such claim. It is true that the said petitioners have goodwill and as a result whereof, they have dealings and business with those firms or concerns of repute as mentioned in the petition and they are neither a defaulter in payment of taxes nor in filing the returns. Even in spite of such position, subsequent information may come in the possession or knowledge of the authorities concerned that the position as disclosed either in the returns or on payment of taxes is unreal and, in that event, for the protection of the revenue, the power as in Section 7(4a)(i) amongst others, is provided for and, if such power is not used or exercised in an arbitrary or unauthorised manner or the security as has been asked for is not unreasonable, this court should not ordinarily interfere. In this case, on the basis of the evidence as disclosed, such power, it seems, has not been used unreasonably, at least a case for the demand of the security as has been asked for, the validity of which has of course been denied, has been made out. The challenges on facts and jurisdiction as have been thrown by the said petitioners can very well be or at least would be available before the authority concerned under the said Act for being decided on evidence and proper materials.

27. Thus, I am left with the other arguments, viz., the interpretation of the words 'reasons to be recorded in writing' and 'satisfaction', how and in what manner the same is to be recorded. It is true that Section 7(4a)(i) contemplates two things, viz., (i) satisfaction and (ii) reasons to be recorded in writing. From the records, which were produced by Mr. Dutta, it prima facie appeared that the relevant records were produced before the Assistant Commissioner in the instant case and he has stated that he perused the report in question and was satisfied and on such satisfaction and formation of opinion, the impugned notice demanding security was issued. It was submitted that in that view of the matter, this court should neither scrutinise the validity nor bona fide of the same ordinarily and interfere with the notice so issued. In the case of Kali Prosad Poddar v. Additional District Magistrate, Howrah (1976) 2 C.L.J. 98. a point like the one under consideration, although under a different Act, came up for consideration. In that case, it was contended that the appropriate authority was neither satisfied about the existence of a public purpose before an order of requisition was made nor applied its mind before making the said order of requisition. The records in that case were produced before the learned Judge at the time of hearing and he was satisfied that all the relevant facts and records including the purpose for which the requisition was made, were put up before the authority concerned before the order of requisition was signed and as such he came to the conclusion that there was no substance in the arguments as noted above. I have followed the said determination in the case of J.N. Mour v. Additional District Magistrate, Howrah (1977) 1 C.L.J. 132. Applying the tests as laid down in the case of Kali Prosad Poddar v. Additional District Magistrate, Howrah (1976) 2 C.L.J. 98. and looking into the records of this case myself, I do not find any justification for deviating from such determination. As such, I hold that from the relevant records placed before him, the Assistant Commissioner concerned could and he did form his opinion and no case has been made out for interference with such formation of opinion. Now, the other question which is left over for consideration is whether due and proper reasons, in terms of the requirements of the said Act, have been recorded. It was submitted by Mr. Chakravartty that one of the prerequisites or the condition precedent for exercise of jurisdiction in the instant case was recording of reasons for justifying the demand of security as made and such prerequisites have not at all been followed or complied with. The way and the manner in which the satisfaction was entered and the reasons recorded, for demanding the security, has already been quoted hereinbefore from the records. In support of his contentions, Mr. Chakravartty first relied on the case of Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District-I, Calcutta A.I R. 1961 S.C. 372 and then on the case of Income-tax Officer, 'I' Ward, District VI, Calcutta v. Lakhmani Mewal Das [1976] 103 I.T.R. 437 (S.C). Those are cases under the Income-tax Act and have laid down the preconditions for reassessment or reopening of assessment. On interpretation of the languages of the relevant Sections for those purposes, it has been observed that the reasons for the formation of belief for the reopening of an assessment must have a rational connection or relevant bearing on the formation of belief. Rational connection postulates that there must be direct nexus or live link between the material coming to the notice of the officer and the formation of his belief. On the basis of such determination, it was argued that the words 'reasons to be recorded in writing' would thus mean that the reasons for the issue of the notice demanding security must expressly show as to why such demand was made and the reasons as recorded in this case would not thus serve that purpose. It was submitted that the laconic way in which the reasons have been recorded would not serve the purposes of such recording. Under the Act, the intention is that while reading the reasons, one would be able to find out and realise the exact reasons or background for such demand for security. It was submitted that the way and the manner in which the reasons have been recorded would not be enough to serve the purposes of the statute and as such on the basis of such reasonings, the demand for security should not be allowed to stand. It was also submitted that while forming the said opinion, justifying the demand for security, the fact that the said petitioners are not in default in payment of taxes or riling of returns, have not been considered or at least the fact of such consideration is absent. It is true that the purpose of the reasons to be recorded in writing as in Section 7(4a)(i), is to enable the dealer to know exactly the reasons for which the security is demanded and such purpose cannot be served in the way and the manner in which the reasons have been recorded in this case. Even if the dealer, viz., the said petitioners in this case, intend to make a representation as directed, they will not be in a position to do so in the absence of proper and effective reasons. Mr. Dutta has of course made it clear that the necessary reasons or the basis for which such order has been passed, would be supplied or made known to the said petitioners if they so want and, as such, at this stage, no interference should be made. Considering the submissions as noted hereinbefore, I am of the view that the recording of reasons as made, would not be enough or sufficient to comply with the terms 'reasons to be recorded in writing' as used in the Section and, as such, only on that ground this application should succeed. The power to levy a tax would include the power to impose reasonable safeguards for collecting the same and, as such, security can be demanded, but such exercise of power must have rational nexus or bearing with the original proceeding and when decision has been taken to ask for security for such protection of revenue, the appropriate reasons or the justification should at least appear from the reasons as recorded. The reasons as recorded in this case cannot serve that purpose.

28. The rule is thus made absolute only on the limited ground as aforesaid and other grounds as argued and as noted hereinbefore are overruled, so also the preliminary point as argued by Mr. Dutta. There will however be no order for costs.

29. Let appropriate writs be issued directing the respondents and each one of them to quash and not to give effect to the impugned notice or order in annexure B or to act on the basis thereof.

30. This will not however prejudice the respondents from proceeding afresh and in accordance with law in the matter, after duly complying with the requirements of Section 7(4a)(i) of the said Act and, that too, after due recording of reasons.

31. Stay of operation of the order as prayed for is refused. All interim orders are vacated and the security as deposited is released.


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