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The Director of Entry Tax, Government of West Bengal and ors. Vs. M.P. Agarwalla and Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Order No. 213 of 1976
Judge
Reported in[1978]41STC255(Cal)
AppellantThe Director of Entry Tax, Government of West Bengal and ors.
RespondentM.P. Agarwalla and Co.
Excerpt:
- .....of the constitution of india promulgated the taxes on entry of goods into calcutta metropolitan area ordinance, 1972 (hereinafter referred to as the said ordinance). the said ordinance came into effect on the cessation of the abovementioned act. section 6 of the said ordinance was in identical terms as section 6 of the said act and to avoid prolixity we do not reproduce the said section herein. in exercise of the powers conferred by section 6(1) of the said ordinance the state government purported to issue a notification being notification no. 1718 f.t. purporting to specify the rate at which the specified goods should be charged to tax under the said ordinance on their entry into the calcutta. metropolitan area as defined in the said ordinance. on or about 4th may, 1972, the said.....
Judgment:

Ghose, J.

1. This appeal is directed against the judgment and order of A.N. Sen, J., passed on 14th May, 1975. The said judgment and order was delivered and passed in an application made by the respondent, M. P. Agarwalla & Co. (petitioners in the appeal), for, inter alia, issue of a writ in the nature of mandamus directing them not to take any action under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972, West Bengal Act No. 5 of 1972 and/or amendments made thereunder.

2. The respondent was at all material times a partnership firm and used to deal in dry fruits, inter alia, at premises No. 21, Ballav Das Street, Calcutta-7. In the course of the said business, the respondent-firm from time to time used to bring or caused to be brought dry fruits such as cashew, cashew kernel, cocoanut, kismis, kopra powder, etc., by railway and road transport into the Calcutta Metropolitan Area within the meaning of Taxes on Entry of Goods into the Calcutta Metropolitan Area Act, 1970 (hereinafter referred to as the said Act). On or about 13th August, 1970, by virtue of powers conferred by Section 3 of the State Legislature (Delegation of Powers) Act, 1970, the President of India enacted the Taxes on Entry of Goods into the Calcutta Metropolitan Area Act, 1970. Section 6 of the said Act reads as follows :

6. Levy and collection of taxes.-(1) Save as otherwise provided in this chapter there shall be levied and collected for the purpose of this Act a tax on the entry of every specified goods into the Calcutta Metropolitan Area (for consumption, use or sale therein) from any place outside that area at such rate, not exceeding the rate specified in the corresponding entry in column 3 of the Schedule as the State Government may, by notification, specify.

(2) Subject to such rules, as may be made by the State Government in this behalf, no tax shall be levied and collected under this Act on the entry of any specified goods into the Calcutta Metropolitan Area if such goods are brought into that area-

(a) As personal luggage by a passenger and the value or the number or quantity thereof does not exceed the prescribed amount or limit, as the case may be, or

(b) In such circumstances and subject to such conditions and restrictions as may be prescribed.

3. The State of West Bengal by virtue of the powers conferred by Sub-section (1) of Section 6 of the said Act purported to issue a notification being Notification No. 5410 F.T. purporting to specify the rate at which the specified goods should be charged to tax under the said Act on their entry into the Calcutta Metropolitan Area as defined in the said Act. The said purported notification purported to charge dry fruits at the rate of 11/2 per cent ad valorem. On or about March, 1972, the Government of West Bengal by virtue of the powers conferred under Article 243 of the Constitution of India promulgated the Taxes on Entry of Goods into Calcutta Metropolitan Area Ordinance, 1972 (hereinafter referred to as the said Ordinance). The said Ordinance came into effect on the cessation of the abovementioned Act. Section 6 of the said Ordinance was in identical terms as Section 6 of the said Act and to avoid prolixity we do not reproduce the said section herein. In exercise of the powers conferred by Section 6(1) of the said Ordinance the State Government purported to issue a notification being Notification No. 1718 F.T. purporting to specify the rate at which the specified goods should be charged to tax under the said Ordinance on their entry into the Calcutta. Metropolitan Area as defined in the said Ordinance. On or about 4th May, 1972, the said Ordinance was repealed by the coming into operation of the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972. The said Act, however, provided that anything done or any action taken under the said Ordinance would be deemed to have been validly done or taken under the said Act of 1972 as if the said Act of 1972 had commenced on 16th November, 1970. Different rates have been charged on different goods as specified in the Schedule to the said Act on their entry into the Calcutta Metropolitan Area as defined in the said Act.

4. The subject of controversy in the application was that cashewnuts were dry fruits and should be charged to tax at the rate at which dry fruits are charged on their entry into the Calcutta Metropolitan Area. It was admitted by both the parties before A.N. Sen, J., that kopra powder, another item, which was the subject-matter of the application before the learned Judge, was dry fruit.

5. A.N. Sen, J., was pleased to hold that cashewnuts were dry fruits and as such were liable to be charged to tax as provided for in the Schedule to the said Act and to that extent made the rule nisi absolute. The learned Judge further quashed the taxing of cashewnuts at the rate at which nuts were charged to tax.

6. Unfortunately neither side appearing before the learned Judge drew the attention of the learned Judge to a notification published in the Calcutta Gazette on Thursday 4th April, 1974, whereby an Act to amend the Taxes on Entry of Goods into Calcutta Metropolitan Area Act passed by the West Bengal Legislature was brought into operation. Section 2 of the said Act provides as follows, to wit:

2. In the Schedule to the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as the said Act), in serial No. 4, in item (u), for the words 'nuts, excluding betel nuts', the words 'nuts, including groundnuts, cashewnuts and walnuts but excluding betel nuts' shall be and shall be deemed always to have been, substituted.

7. Thus the said section provided that the nuts would include cashewnuts with effect from coming into operation of the Taxes on Entry of Goods into the Calcutta Metropolitan Area Act, 1972, that is to say, with retrospective effect.

8. In view of the aforesaid amendment to the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 and specially Section 2 of the Amendment Act, as quoted hereinabove, cashewnuts specifically have come within the mischief of the operation of the said Act and to that extent the learned Judge's finding cannot be sustained.

9. In the premises, the appeal is allowed in part and the judgment and order of the learned trial Judge so far as it relates to levy of tax at the rate of 6 per cent ad valorem on cashewnuts is set aside and the assessing authorities are directed to assess the same at 1 1/2 per cent ad valorem and the rule to that extent is made absolute. The appellants are directed to refund to the respondent the amount collected in excess of the amount which would be legally payable by the respondent as tax on cashewnuts.

10. The appeal is disposed of on the aforesaid terms. There shall be no order as to costs

Pyne, J.

11. I agree.


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