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Aparna Trading Corporation (i) Pvt. Ltd. Vs. Commissioner of Commercial Taxes and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Limitation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3815 (W) of 1976
Judge
Reported in[1982]51STC199(Cal)
AppellantAparna Trading Corporation (i) Pvt. Ltd.
RespondentCommissioner of Commercial Taxes and ors.
Appellant AdvocateDebi Prosad Pal, ;Anil Kumar Roychowdhury and ;Joydeb Chandra Saha, Advs.
Respondent AdvocateSamarendra Nath Dutta, Adv.
Cases Referred and Guest Keen Williams Ltd. v. Additional Member
Excerpt:
- m.n. roy, j.1. aparna trading corporation (i) private limited (hereinafter referred to as the said company), is incorporated under the companies act, 1956 and carries on the business as a wholesale distributor and as a retailer of medicines, toilet goods and provisions, apart from other stationery goods and has been stated to be a dealer within the meaning of section 2(c) of the bengal finance (sales tax) act, 1941 (hereinafter referred to as the said act). the said company has further stated to be regularly assessed by the commercial tax officer, rajakatra charge, calcutta, respondent no. 5. the original registration certificate of the said company was no. csi/1906a which was subsequently changed to rj/1906a and thereafter, on and from 2nd may, 1978, it has been stated, that the said.....
Judgment:

M.N. Roy, J.

1. Aparna Trading Corporation (I) Private Limited (hereinafter referred to as the said company), is incorporated under the Companies Act, 1956 and carries on the business as a wholesale distributor and as a retailer of medicines, toilet goods and provisions, apart from other stationery goods and has been stated to be a dealer within the meaning of Section 2(c) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act). The said company has further stated to be regularly assessed by the Commercial Tax Officer, Rajakatra Charge, Calcutta, respondent No. 5. The original registration certificate of the said company was No. CSI/1906A which was subsequently changed to RJ/1906A and thereafter, on and from 2nd May, 1978, it has been stated, that the said company is holding registration certificate No. RJ/230B. It was also the case of the said company that as such registered dealer they have been paying regularly the necessary taxes on the sales in accordance with the law.

2. It has been stated by the said company that the assessment in question, viz., assessment for the period 4 quarters ended the last day of Chaitra, 1361 B.S. (hereinafter referred to as the said assessment), was a fresh one, made by the Additional Commissioner of Commercial Taxes, respondent No. 3, to make fresh assessment after giving the said company reasonable opportunities of being heard. In terms thereof, it has been stated that the Commercial Tax Officer concerned was authorised to make fresh assessment after re-examination of books of account and without any restriction whatsoever. The said company has further stated that in accordance with the fresh assessment and in the proceeding for the said assessment, pursuant to the directions of the appellate authority, they appeared before the Commercial Tax Officer concerned from time to time and produced their books of account and other relevant documents as required and were asked for by the said officer to establish the statements as contended in their returns. It would appear from the pleadings that in their return, the said company asked for exemption of Rs. 19,39,234-15-9 under Section 5(2)(a)(ii) of the said Act and in support of such claim, they produced before the officer concerned the declaraorders and other evidence, including appropriate documents. It was the case of the said company that the declaration forms produced before the Commercial Tax Officer concerned, were returned by him without any reason whatsoever and those declaration forms are still under the custody of the said officer, being respondent No. 5. The said company has stated that in the course of hearing, when the officer concerned expressed his view for rejecting the claims under Section 5(2)(a)(ii) of the said Act, on the basis of the declaration forms supplied by the registered purchasing dealers,- who in their turn obtained them from their respective Commercial Tax Officers, the said company requested the officer concerned to supply them the materials on the basis of which, he was intending to disallow the claims as made. It has been stated that the officer concerned refused to supply any materials and on such the said company by their letter of 8th February, 1962, requested him to specify the items of claims intended to be disallowed and also to disclose the grounds for such disallowance and other relevant materials on the basis such disallowance was proposed.

3. It was further stated by the said company that the officer concerned without supplying the materials which, according to them, were collected behind the back of the said company, completed the assessment on 14th February, 1962, under Section 11(1) of the said Act, computing the taxable turnover at Rs. 18,70,854-0-0. It has been alleged that while arriving at such turnover, the officer concerned enhanced the gross turnover by Rs. 16,000 and disallowed Rs. 19,32,650-7-6, out of the claims of Rs. 19,39,234-15-9 as made under the Section as mentioned above. It has been stated by the said company that in enhancing the gross turnover by Rs. 16,000, the officer concerned rejected the book result without any reasons or materials whatsoever and he estimated the gross turnover at Rs. 20,82,336-4-0,. by enhancing the sum of Rs. 16,000 as mentioned above in the concerned gross turnover. The said company has alleged that the officer concerned disallowed arbitrarily and without any materials or basis or evidence the sum of Rs. 19,32,650-7-6 out of Rs. 19,39,234-16-9 as claimed by them as deduction under the section as mentioned above. That apart, it has been stated that the said officer refused to allow exemption in respect of the claims as made on the basis of 28 declaration forms, supplied by registered dealers, who as mentioned hereinbefore, obtained them from their respective Commercial Tax Officers.

4. The said company has alleged that the officer concerned, in making the assessment whereby he enhanced the gross turnover and disallowed the claims for deduction made under Section 5(2)(a)(ii) of the said Act, proceeded arbitrarily and on suspicion, conjectures and surmises and not on evidence or materials, which could support such disallowance. It was claimed that such disallowance was made relying upon materials collected behind the back of the said company or without giving them any opportunity of contesting the legality or binding effect of the concerned materials and as such, the order as made, was bad, for having been passed in violation of the principles of natural justice. In fact, the said company has stated that the reasons for disallowing the claims for exemption under the said Act, as mentioned above, were passed on no materials and the conclusions arrived at by the officer concerned were also based on surmise, suspicion and conjectures, apart from being perverse, as no reasonable man could come to such conclusions on the basis of the available materials. The corresponding English period of the said assessment would be the period from 14th April, 1954, to 14th April, 1955 and the said company has stated that during that period, they sold the goods to registered dealers who, as mentioned above, supplied the declaration forms as issued by their respective Commercial Tax Officers, for the purpose of getting exemption from paying the sales tax on the purchase of the concerned goods from the said company. It has further been stated that the said company being a registered dealer had no other alternative but to accept the goods purchased fay the concerned registered purchasing dealers, whose particulars were as under :

Names Registration No.a) Baheti Stores SL/193Bb) Saha Traders SL/2747Ac) Green Valley Ltd. BH/208Bd) A. K. Sarkar and Co. CS/11-2738Ae) Bharat Pak Traders CS 11/2360Af) Luxmi Medical Stores CL/2126Ag) Ram Chandra Bhotica CS/11-1840A)h) Shankar Stores CS 11/2780Ai) Researches Indiana BD 1/1512Aj) D. Kanjilal and Co. SL/2028Ak) B. K. Ghar and Sons SL/1497A1) Roy Singh and Co. CS 11/1778Am) Mata Medical Stores CL/2261A

5. Those purchasing registered dealers, according to the said company, were holding the valid registration certificates during the material time and the declaration forms issued to them were also valid.

6. Against such assessment and the disallowances and additions as made, the said company preferred an appeal before the Assistant Commissioner of Commercial Taxes, respondent No. 4, challenging the legality and validity of the concerned additions and disallowances of the claims as made under Section 5(2)(a)(ii) of the said Act on various grounds and during the pendency of such appeal, they, by an application dated 10th February, 1964, made under Section 21A of the said Act prayed, inter alia, for examination of the relevant records and materials of the concerned registered dealers to whom the said company had sold goods, without charging the sales tax on the basis of declaration forms as supplied to them. Another application was also made requesting the said respondent No. 4 to direct the Commercial Tax Officer to return the concerned declaration forms to them, which according to the said company, were kept without any authority of law. It would appear that by an order dated 7th April, 1964, the said respondent No. 4, rejected the petition of appeal and confirmed the assessment as made on the grounds that the disallowances of claim for exemption and levy of sales tax were quite justified. The said company has alleged that in making such order the said respondent No. 4 did not consider at all or deal with the application dated 10th February, 1964, as made under Section 21A of the said Act. Section 21A deals with the powers of Commissioner to take evidence on oath and categorically lays down that the Commissioner or any person appointed to assist him under Sub-section (1) of Section 3 shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the matters, viz., (a) enforcing the attendance of any person and examine him on oath; (b) compelling the production of document; (c) issuing... for the examination of witness; and any proceeding under this Act before the Commissioner or any person appointed to assist him under Sub-section (1) of Section 3 shall be deemed to be a' 'judicial proceeding' within the meaning of Sections 193 and 228 and for the purposes of Section 196 of the Indian Penal Code. It was also claimed by the said company that the conclusions arrived at by respondent No. 4 in confirming the disallowances were without any materials and based on surmises, conjectures and suspicion and not supported by any evidence or materials and that apart, it was claimed that such conclusions were perverse, as no reasonable man, on the basis of materials as available, could come to such conclusions. It has further been stated by the said company that both the Commercial Tax Officer and the said respondent No. 4, acted illegally and in excess of their jurisdiction in disallowing the claims for exemption under Section 5(2)(a)(ii) of the said Act and on the basis whereof, such determinations were made. It was categorically claimed that in view of the above, respondents Nos. 4 and 5, viz., the officer and authority as mentioned above, had no competence, authority or jurisdiction to disallow the claims for exemption under Section 5(2)(a)(ii) of the said Act. It has further been stated that in making such determinations, as he did, the respondents further acted illegally and in flagrant violation of the principles of natural justice, in not directing the officer concerned to supply the materials relied on by him in the assessment and also in not considering the application dated 10th February, 1964, as mentioned above, by examining the records of the respective registered purchasing dealers.

7. Being aggrieved and dissatisfied with the order as made by respondent No. 4, the said company filed a revision petition under Section 20(3) of the said Act, challenging, inter alia, the legality and validity of such order and during the pendency of the said revision petition, they also filed two applications both dated 1st February, 1967, under Section 21A of the said Act, praying, inter alia, for an order directing respondent No. 5, to return the concerned declaration forms and also for examination of the relevant records and materials of those registered dealers, to whom the said company had sold the goods, without charging sales tax on the basis of the declaration forms as supplied by them. Such revision petition, it has been stated, was heard by the Additional Commissioner of Commercial Taxes, respondent No. 3 and he by his order of 26th November, 1968, also confirmed the order of respondent No. 4 and consequently rejected the revision petition, holding that the rejection of the books and enhancement of gross turnover as made, were perfectly justified and there were good grounds for disallowing the claims as made under Section 5(2)(a)(ii) of the said Act. The said company has alleged that respondent No. 3, without any materials or evidence, held that there has been manipulation in the books of account which were apparent in the case of exemption as claimed under the section as mentioned above. It has been alleged that the said respondent No. 3, in rejecting the claims under the section as mentioned above, acted on irrelevant materials and the conclusion arrived at by him, were based merely on conjectures, suspicion, surmises and his findings were without any evidence whatsoever, apart from being illegal and irregular and contrary to the submissions as made on the point.

8. From such determinations by respondent No. 3, the said company filed a further revision petition before the Board of Revenue, West Bengal, contending, inter alia, that those determinations were illegal and invalid. During the pendency of such revision petition, the said company filed an application on 10th July, 1969, praying inter alia for hearing on the additional grounds as taken. Subsequently the revision petition was heard by Shri B. B. Mondal, the Additional Member, Board of Revenue, West Bengal, respondent No. 7 and he by his order of 23rd November, 1972, rejected the revision petition holding amongst others that the gross profit enhanced to 1 per cent appeared to be reasonable. It has been alleged by the said company that in confirming the disallowances of the claims made under Section 5(2)(a)(ii) of the said Act, the said respondent No. 7 held, amongst others, that the defects and discrepancies can be attributed partly or wholly to all the purchasing dealers in respect of the sales amounting to about Rs. 19 lakhs out of the total gross turnover of Rs. 20.66 lakhs approximately and as such, they were reasonable to disbelieve the genuineness of the concerned transactions.

9. It was claimed and contended by the said company that from all the orders, as indicated hereinbefore, it would appear that they had complied with the requirements of the statute duly and so also the Rules, for the purpose of claiming necessary deduction under Section 5(2)(a)(ii) of the said Act, by producing declaration forms supplied by the purchasing dealers, who in their turn obtained them from their respective Commercial Tax Officers. Section 5 of the said Act deals with rate of tax and under Sub-section (2) of the said section expression 'taxable turnover' means in the case of a dealer who is liable to pay tax under Section 4, that part of his gross turnover during any period which remains after deducting therefrom amongst others and as mentioned in Clause (ii) sales to a registered dealer of goods of the class or classes specified in the certificate of registration of such dealer, as being intended for resale by him, or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract and of containers or other materials for the packing of goods of the class or classes so specified; provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are sold and containing prescribed particulars on a prescribed form obtainable from the prescribed authority is furnished in the prescribed manner by the dealer who sells the goods. It was the case of the said company that they by producing the valid declaration forms as supplied to them by the purchasing registered dealers and which forms or the registrations were not cancelled by the authorities concerned, during the concerned period, had proved that the sales were made to the registered dealers and as such, the assessing authorities acted illegally and in excess of jurisdiction in rejecting such claims under the section as mentioned above and thereby depriving the said company of the deductions, which they would be entitled to under the law. In fact, it has been stated that in the instant case, none of the authorities came to a conclusion upon the available materials, that the transactions as made by the said company, were not bonafide. The said company has further stated that the purchasing registered dealers were in existence during the period relevant for the transactions in question and at that time, they were also in possession of the valid registration certificates. The rejection of the claims under Section 5(2)(a)(ii) of the said Act by all authorities concerned, were further claimed to be made on surmises; conjectures and suspicion and not supported by any legal evidence. As such, all the determinations have been claimed to be perverse. It was also claimed that all the authorities as mentioned hereinbefore acted on materials which were not legal, for the purpose of coming to the conclusion that transactions in question, with the purchasers whose particulars have been mentioned hereinbefore, were not beyond any reasonable doubts. The said company has claimed to have duly complied with the provisions of law, while selling the goods to those registered dealers, after appropriately receiving from them the declaration forms and has stated that thus the respondents concerned had no competence, authority and jurisdiction to reject those declaration forms.

10. Being aggrieved by the determinations of respondent No. 7, as mentioned above, the said company made a reference application under Section 21(1) of the said Act, which lays down that within 60 days from the passing by the Board of Revenue of any order under Sub-section (3) of Section 20 affecting any liability of any dealer to pay tax under this Act, such dealer may, by application in writting accompanied by a fee of Rs. 100 require the Board to refer to the High Court any question of law arising out of such order. By the said application, the said company has stated to have duly required the Board of Revenue to prepare a statement of the case and to refer the questions of law to this Court for its decision. The application under Section 21(1) is in annexure G to the petition and the questions of law which were so required to refer, were as under:

(i) Whether the order of assessment consolidating the several return periods is ultra vires the statutory provisions and is invalid in law ?

(ii) Whether, on the facts and in the circumstances of the case, there was material before the Board to confirm the rejection of books of account and the enhancement of the gross turnover by Rs. 16,000 ?

(iii) Whether, on the facts and in the circumstances of the case, the rejection of claims of the dealer-petitioner under Section 5(2)(a)(ii) of the Act amounting to Rs. 19,32,650-7-6 was not in accordance with law ?

(iv) Whether, in view of the fact that the Board disbelieved the genuineness of the transactions covered by the said declaration forms the finding of the Board of Revenue that the gross turnover of the dealer could be assessed at Rs. 20,66,336-4-0 and tax assessed thereon are perverse on the ground that it is not based on any legal evidence ?

(v) Whether, on the facts and in the circumstances of the case, the order of assessment and the appellate and revisional orders of the sales tax authorities offended the principles of natural justice and are against the provisions of Section 11 of the Act in view of the finding that the rejection of the declaration forms were based on secret and confidential reports which were not shown or made available to the applicant but were relied upon by the taxing authorities ?

(vi) Whether, on the facts and in the circumstances of the case, the order of the Board is based on surmises and conjectures and whether the Board relied on irrelevant materials and consideration in disallowing the claims of the dealer under Section 5(2)(a)(ii) of the Act ?

(vii) Whether, on. the facts and in the circumstances of the case, the order of the Board is arbitrary and perverse ?

(viii) Whether the order of the Board of Revenue is perverse for the following reasons :

(a) The materials and evidence produced by the assessee remain uncontradicted.

(b) There was no contradictory evidence from the purchasing dealers.

(c) No action was taken on petitions under Section 21A of the Act.

(d) There was no evidence on record from any other purchaser to whom the assessee is alleged to have sold the goods ?

(ix) Whether the Board was right in considering the alleged defects in;some of the declaration forms cumulatively in disallowing the claims of the dealer under Section 5(2)(a)(ii) of the Act amounting to Rs. 19,32,650-7-6 ?

(x) Whether the alleged defects in the declaration forms are vital to justify disallowances of deductions claimed under Section 5(2)(a)(ii) of the Act ?

(xi) Whether on the facts and in the circumstances of the case and on a proper construction of Section 5(2)(a)(ii) of the Act and Rule 27A of the Rules framed thereunder the Board of Revenue was right in rejecting the claims of sales to the registered dealers aggregating Rs. 19,32,650-7-6 ?

11. It has been stated that during the pendency of the said application, the said Act was amended by the Bengal Finance (Sales Tax) (Second Amendment) Act, 1974 and by such amendment, the cases pending before the Board of Revenue, West Bengal, have been taken up by the West Bengal Commercial Taxes Tribunal, to whom jurisdiction was given by the said Act as amended, to decide the revision petition and the reference application under Section 20(3) of the said Act and under Section 21 of the same. As such, the said company has stated that the reference application was heard by the West Bengal Commercial Taxes Tribunal on 1st September, 1975 and, on that date, they filed an application for explaining the delay in filing the reference application and for condonation of such delay and it was specifically contended that in fact, the application should be deemed to be in time or filed within the statutory period of limitations, after taking into consideration, the time taken by the Board of Revenue in supplying the certified copy and before this Court that the time required for obtaining certified copy should have been excluded in computing the period of limitation. The said application for condonation of delay is in annexure H to the petition.

12. It has been stated by the said company that although some gist of the order as made, on the concerned revisional application was supplied to the said company, but the full text of the order as passed by the Board of Revenue was not communicated to them. In fact, it has been stated that without a copy of the full order of the Board of Revenue it was not possible for them to file any reference application and such question of law as arose from the said order of the Board of Revenue, could not be duly framed. It was the further claim and contention of the said company that the full order of the Board of Revenue should form a part of the case or the concerned reference applications, as such order was the basic document from which the petitioner could suggest appropriate question of law for the opinion of the High Court. With such end in view, the said company has stated to have applied for certified copy of the concerned order of the Board of Revenue on 19th May, 1972, as there was or is no provision under which they could get a copy of the order as made by the Board. It would appear from the statement as made in this petition that the certified copy as mentioned above, was obtained on 24th June, 1972. It was also the claim and contention of the said company, that on the facts and circumstances of the case and in accordance with Rule 83A(iii) of the Bengal Sales Tax Rules, 1941 (hereinafter referred to as the said Rules), which requires that an application referred to in Sub-section (1) of Section 21 of the said Act shall be accompanied by three copies of every document, which in the opinion of the dealer should form part of the case, together with the English translation in triplicate of every such document, where necessary and the time for obtaining the certified copy of order of the Board of Revenue, was necessarily required to be excluded, in computing the period of limitation, within which an application under Section 21(1) of the said Act could be made, for a reference. It has been stated by the said company that the result of the order dated 23rd February, 1972, was communicated to them on 23rd April, 1972 and as the order was a lengthy one, a certified copy of the same was also required to be obtained and filed under Rule 83A(iii) of the said Rules, along with the concerned reference application and as such the time for obtaining such certified copy of the concerned order, should have been excluded in computing the period of limitation for filing the reference application under Section 21(1) of the said Act. It has also been stated that alternatively, it was argued before the authorities concerned that the delay, if any, should have been condoned as the said company was prevented by just and sufficient cause for not filing the concerned application within time. It should be noted that both the said contentions of the said company were rejected by the Tribunal, holding inter alia that they were not entitled to exclude the time taken for obtaining the certified copy of the Board's order on revision. The determinations as made by the Tribunal have been claimed by the said company, on the face of them, to be erroneous, illegal and without jurisdiction and it has been specifically contended that the Tribunal acted erroneously, illegally and in excess of jurisdiction in rejecting the reference application as filed and that too on the basis, that the same was filed out of time. It was the claim and contention of the said company that they had duly complied with the requirements of law, by obtaining or trying to obtain the certified copy of the Board's order and as such also there was due compliance with Rule 83A(iii) of the said Rules. Apart from the statements as mentioned hereinbefore, the said company has also stated that the Tribunal acted in flagrant violation of the principles of natural justice in not entertaining the reference application under Section 21(1) of the said Act and referring the question of law to this Court for decision by treating the concerned application as filed within time.

13. The rule was made ready as regards service on 27th January, 1978 and although directions for affidavits were given on 17th February, 1978 and an appearance has been entered for and on behalf of respondents, they have not filed any return to the rule, but Mr. Dutta appearing for them, made his submissions on production of the records.

14. Dr. Pal, appearing in support of the rule, firstly, claimed that respondent No. 2, viz., the West Bengal Commercial Taxes Tribunal, acted illegally in holding that the application under Section 21(1) of the said Act was barred by time. He claimed that since the said company found and thought the order of the Board to be a proper document to be incorporated and filed with the reference application, so they had duly asked for a certified copy of the determinations, for the purpose of enclosing the same as a part of the reference application and the time consumed for obtaining such certified copy, should have been excluded in the matter of computing the period of limitations, in terms of Section 21(1) of the said Act. It was further claimed by him that in making the application for certified copy and that too for the purposes as mentioned above, the said company had taken due steps for complying with the provisions of Rule 83A(iii) of the said Rules and in any event, on taking into consideration such time which was so required for obtaining certified copy and by giving credit for the said period along with the statutory period of limitation, the authorities concerned should have held that the application in question was filed within time and not out of time. It was secondly contended by Dr. Pal on merits that since the said company had complied with the provisions of the said Act and the said Rules in claiming exemption under Section 5(2)(a)(ii) of the said Act and the concerned sales were made to the dealers, who were duly registered under the said Act and who had supplied the declaration forms to the said company in respect of the said sales, the duty or obligation as cast upon the said company had been appropriately performed and as such, it was incumbent upon the respondents and each one of them, to allow the exemption as claimed under the section as mentioned above and in rejecting the sales in question, those respondents have acted illegally, arbitrarily and without jurisdiction or in excess of the same. It was further claimed that since the said company had complied with the relevant requisites of the provisions of the said Act and the Rules for the purpose of claiming deduction under Section 5(2)(a)(ii), in the circumstances and manner as stated hereinbefore, the authorities concerned were not right in rejecting such claims and by acting in such a manner they have acted illegally and without or in excess of the jurisdiction. It was claimed further that the order passed by the respondents were based on no materials or the same was on surmises, suspicion and conjectures, which were not supported by any evidence and as such the findings were also perverse. It was also claimed by Dr. Pal that the refusal of the claims made under Section 5(2)(a)(ii), as mentioned above, was based on no materials and in making the impugned order, the authorities concerned had shown perversity and in fact, no reasonable man could come to such conclusion. The conclusion as arrived at was also claimed to be based on no materials or inconsistent with the evidence as led apart from being contradictory and based on irrelevant considerations. These apart, the refusal to allow deductions as claimed was termed by the said company to be arbitrary and against the principles of natural justice and it was also claimed that there was no material to hold that there was reasonable ground to disbelieve the genuineness of the concerned transactions and as such, the order as made was also invalid, inappropriate, illegal, irregular and void.

15. Dr. Pal very candidly stated and to which I also agree that the determinations which would have to be made on his submissions would clinch the issue and in any event, this Court would not be required to go into his second branch of submissions. In fact, I also feel that if it is found that the reference application was not decided appropriately and the said company would be entitled to the benefits of the time consumed for obtaining the certified copy of the Board's decision in the matter of filing the reference application, then the submissions will have to be sustained, the effect whereof, would be that the reference application should be found to be appropriately made and if the answer to such question as mentioned above is to be answered in the negative and against the said company, then the order as made will have to be sustained. If the answer to the question supports the said company, the matters will have to be sent back for determination on merit and not otherwise. Mr. Dutta also agreed to the above.

16. Under Section 21(1) of the said Act, the jurisdiction as conferred is of a special and exceptional nature and the Tribunal may refer any question of law to this Court or to refuse the same. While dealing with such an application under Section 21(1), the Tribunal, no doubt, acts as a quasi-judicial body and as such, is required to dispose the concerned application, after necessary hearing to the parties and particularly when the Tribunal makes an order adverse to the assessee, hearing should be given. The statement of the cases should contain all relevant facts, whether or not mentioned by the authorities below, which the Tribunal accepts.

17. As mentioned above, the period of limitation for an application to make a reference to this Court is sixty days from the passing of the order from which the question of law as sought to be referred, arose. Such application should also be accompanied by requisite fees and any infraction or if such fees are paid out of time, the application would be deemed to be filed out of time. In the case of S. Mehar Chand Krishan Kumar v. State of Haryana [1971] 28 STC 643, it has been observed that limitation starts running from the date the applicant had knowledge of the order and proper application was deemed to have been made on the date when the requisite court-fee was paid. In the case Guest Keen Willams Ltd. v. Additional Member, Board of Revenue, West Bengal [1968] 22 STC 198 decided on 22nd April, 1968, it has been observed that the words 'or for revision' in Section 12(2) of the Limitation Act, 1963, would not include an application for reference under Section 21(1) of the Bengal Finance (Sales Tax) Act, 1941, against an order in revision made by the Board of Revenue under Section 20(3). An application for reference to the High Court follows a particular decision in a revision case and that application is not tantamount to an application for revision. Consequently in filing an application under Section 21(1) requiring the Board of Revenue for a reference an assessee is not entitled to exclude the time requisite for obtaining a copy of the order of the Board of Revenue passed in revision under Section 20(3). In that case an order in revision under Section 20(3) of the Bengal Finance (Sales Tax) Act, 1941, was made by the Board of Revenue on 28th January, 1967 and the communication of the order was made to the assessee on 4th March, 1967. The assessee made an application under Section 21(1) on 16th May, 1967, for a reference of certain points of law to the High Court and submitted that if the time for obtaining a copy of the order of the Board of Revenue be taken into account, under Section 12 of the Limitation Act, 1963, the application would be in time. The Board of Revenue held that the application for reference was barred by limitation and refused to make a reference and on application to the High Court under Section 21(2) of the said Act, against the refusal of the Board of Revenue, it has been held, that in holding that the application for reference was barred by limitation, the Board was not in error and therefore the High Court could not exercise its powers under Section 21(2) and call upon the Board to refer questions of law to the High Court. The view as indicated above and also as expressed, viz., that the time would begin to run not from the date of the making of the order by the Board of Revenue, but from the date of the communication of the order to the assessee, was made on the basis of the earlier determinations dated 8th June, 1960, in the case of Director of Supplies and Disposals, Calcutta v. Member, Board of Revenue, Government of West Bengal [1960] 11 STC 589. A view contrary to the above and to the effect that in computing the period for all applications of the kind as mentioned above requiring the Board or Tribunal to state a case, the time requisite for obtaining a copy of the order of the Board or Tribunal, should be excluded as provided for in Section 29 of the Indian Limitation Act, was expressed in the case of India Ice and Cold Storage Co. Ltd. v. Member, Board of Revenue, West Bengal [1948] 1 STC 191. It is true that the words or expression 'passing of an order' as in Section 21 of the said Act, implies, means and requires a communication or publication of the order and following the earlier determinations and the then provisions of the statute, if the order is pronounced with notice to the parties, time would start running from the date of making the order and when such order is passed without notice to the parties, time would run from the date when the party affected by such order, had a reasonable opportunity of knowing the contents of the order and as such, the notice served on the assessee may be construed as giving him reasonable opportunity of knowing the contents of the order as made by the Board and in such cases, the starting point of limitation would not be when the certified copy of the order of the Board was received by the assessee, but the same would be when the order of the Board was communicated to the assessee.

18. In this case, the gist of the Board's order dated 23rd February, 1972, which the said company has stated to be a bare intelligence of the Board's order, was communicated to them on 23rd April, 1972, with the intimation that the order as made by the Board, would be open to inspection. The said company also took inspection of such order, but as they found that the order as made, was a long one and they were not allowed to copy the same, so they have stated that there was no other alternative, but to apply for a certified copy of such order on 19th May, 1972. The said certified copy has been stated to be made ready an 24th June, 1972. It has also been stated that in terms of Rule 83A of the said Rules, which lays down that an application under Section 21(1) of the said Act, must be filed (i) in triplicate, (ii) signed by the applicant or by an agent duly authorised by him in that behalf and (iii) accompanied by three copies of every document which in the opinion of the applicant, should form part of the case, together with the English translation in triplicate of every such document, where necessary, they were required to file a copy of the order as according to them the word 'document', would mean and include the copy of the Board's order and in fact, the certified copy of such order, which was received very late, was filed along with the application for reference. As mentioned above, it was also claimed that since the order as made would be a document as referred to or mentioned in Rule 83A(iii) and a long time was really and in fact consumed, to secure and obtain the certified copy of the same, the time taken or consumed in obtaining such certified copy, should be given credit to the said company or excluded in the matter of computing the limitation.

19. The original provisions of Section 20(3) of the said Act, were to the following effect:

Secion 20(1)...

(2)...

(3) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon application or of his own motion may revise any assessment made or order passed under this Act or the Rules thereunder by a person appointed under Section 3 to assist him and subject as aforesaid, the Board of Revenue may, in like manner, revise any assessment made or order passed by the Commissioner :

Provided that before rejecting any application for the revision of any such order the Commissioner or the Board of Revenue, as the case may be, shall consider it and shall record reasons for such rejection :

Provided further that no application for revision shall lie to the Commissioner in respect of any assessment if an appeal lies under Sub-section (1) to the Commissioner in respect of such assessment,

and the said Sub-section (3) was substituted as under :-

Section 20(1)....

(2)...

(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

by Section 5(1) of the Bengal Finance (Sales Tax) (Second Amendment) Act, 1974 (West Bengal Act 6 of 1974)

20. Dr. Pal candidly stated that under Section 21(1) and (2) of the said Act, there is no provision for condonation of delay or any mention about the certified copy of the Board's order and if the provisions as were there, on the basis of the determinations in the cases of Director of Supplies and Disposals v. Member, Board of Revenue, Government of West Bengal [1960] 11 STC 589 and Guest Keen Williams Ltd. v. Additional Member, Board of Revenue, West Bengal [1968] 22 STC 198, which were made on that basis on 8th June, 1960 and 22nd April 1968, respectively, would not have required any further determination on the first question as referred to hereinbefore. But he said that the subsequent incorporations as would be mentioned hereafter would require a fresh and further determination on such point. It is also true that on the basis of the existing law as mentioned above, there was no special form prescribed for an application under Section 21(3) and the same was required to be filed in triplicate, accompanied by three copies of every document, which in the opinion of the dealer, should form part of the case and giving a statement of case and indicating the questions of law for reference to the High Court, within the time as prescribed. It was claimed by Dr. Pal that earlier, there were no rules and regulations for the conduction of proceedings before the Tribunal and the promulgation of the West Bengal Commercial Taxes Tribunal Regulation, 1974 (hereinafter referred to as the said Regulations), by Notification No. 100T dated 24th June, 1974, as published in the daily issues of the Calcutta Gazette (Extraordinary) on 26th June 1974, read with the provisions of Rule 83A, has changed the position and now, it is necessary to annex a copy of the judgement or order. The said regulations was framed in exercise of the power conferred by and under Section 3B(9) of the said Act as amended and adopted by the West Bengal Commercial Taxes Tribunal, with the previous sanction of the State Government. Regulation 16 of the said regulations deals with applications for references and Sub-regulation (ii) thereunder, lays down that rules in respect of revisions under the Act shall apply mutatis mutandis and as far as applicable to applications to the Tribunal for reference to the High Court. It is true that by the said regulations a form being form A, relevant and necessary for an application under Section 21 was incorporated in the following manner :

'Form A

Form of reference application under Section 21.

Before the West Bengal Commercial Taxes Tribunal

In the matter of Revision Application No....of 19Applicant....

Versus

Opponent....

1. Date of Tribunal's Judgment applied against:

2. Date of communication of Tribunal's Judgment:

3. Period of assessment, if any :

4. The applicant states as follows :

That the following questions of law arise out of the Judgment of the Tribunal:

(1)...

(2)...

(3)...

That the applicant, therefore, requires under Sub-section (1) of Section 21 of the Act that a statement of the case be drawn up and the question of law numbered...be referred to the High Court.

That the documents or copies thereof, as specified below (the translation in English of the documents, where necessary, is annexed), be forwarded to the High Court with the statement of the case.

Signed...

(Applicant)

Signed...

(Appointed agent,

if any).

21. Form A, as prescribed, no doubt satisfies the requirements of the necessary incorporations of and the required contents in a reference application under Rule 83A of the said Rules. It was claimed by Dr. Pal that the Tribunal under the said Act came into existence in 1974 and as such the same was neither in existence nor constituted when the Calcutta decisions as mentioned hereinbefore, were made and so the determinations as made in those cases or the observations as made or contained in them will not apply and the point as involved in this case should be decided on the basis of the law and the requirements as stand or operative now. Rule 73A and onwards of the said Rules, deal with the manner of filing and disposal of appeals, application in revision or for review and it was the claim and contention of Dr. Pal, that those rules or the terms of them should also apply to a reference application now, in view of the provisions of Regulation 16(ii) of the said regulations and more particularly on the construction of the words 'mutatis mutandis' as used therein. Rule 76 deals with or lays down what a memorandum of appeal should contain and Rule 76(e)(ii), to which specific reference was made, lays down that the memorandum of appeal shall be accompanied by the order appealed against and that apart, reference was also made to Rule 80 which provides that

(1) The provisions of Rules 76 and 77 shall apply mutatis mutandis to every application for revisions or review :

Provided that the provisions of Sub-clause (a) of Clause (iii) of Rule 76 shall not apply to an application for revision or review of any order other than an order of assessment made under Section 11 of the Act and that the provisions of Clause (v) of Rule 76 shall not apply to an application for revision or review:

Provided further that the provisions of Sub-clauses (d) and (e) of Clause (i), Sub-clause (a) of Clause (iii) and Clause (v) of Rule 76 shall not apply to an application for revision by the Commissioner to the Tribunal.' apart from relying on the provisions of Rule 80(2) and specially to the proviso thereunder. These provisions are:

(2) No application for review of an order shall be entertained unless it is presented within thirty days from the date of such order and no application for revision of any order shall be entertained unless it is presented within sixty days from the date of such order :

Provided that an application for review or revision may, after the period so specified, be entertained if the applicant satisfies the authority to which such application is made that he had sufficient cause for not presenting the application within such period.

22. Dr. Pal claimed that in view of. the provisions of the statute as on today, the provisions as indicated above and more particularly those as contained in the proviso under Rule 80(2), would apply mutatis mutandis in respect of an application under Section 21 and as such the authority concerned would be entitled to consider the question of condonation of delay in an appropriate and given case for a reference, if just and sufficient cause is made or established, for the inability to file the application in question in the required form. He claimed that the required form would mean the annexing of the copy of the order of the Board and that would come within the purview of a document as mentioned hereinbefore or more particularly as mentioned in Rule 83A of the said Rules.

23. Mr. Dutta, appearing for the answering respondents, claimed that this application, on the basis of the prayers as made or on the effect of them, would not be maintainable and if at all, from the order as impeached, the appropriate remedy or relief of the said company, was by way of an application under Section 21(2)(b) of the said Act, which lays down that if, for reasons to be recorded in writing, the Board of Revenue refuses to make a reference, the applicant may within thirty days of such refusal either (a) withdraw his application (and if he does so, the fee paid shall be refunded), or (b) apply to the High Court against such refusal.

24. It was claimed by Mr. Dutta that the use and mentioning of the word 'document' as in Rule 83A, would not include a Judgment and as such, the time consumed, for obtaining the certified copy of the same, cannot be taken into consideration, while computing the period of limitation. He claimed that since such record was not required or necessary to be filed along with a reference application, so the time consumed for obtaining the certified copy, cannot be excluded and for that also the Tribunal was not required to take into consideration just and sufficient cause, if any, as has been sought to be made and argued.

25. Form No. XXII is the one for application for revision under Section 20(3) of the said Act. On a reference to the same and on which reliance was placed by Mr. Dutta, it would appear, that paragraph 4 of the said application contemplates that the certified copy of order appealed against will have to be attached. Reference was made by Mr. Dutta to form No. XXI, which is one for the memorandum of appeal under Section 20(1) of the said Act and there also, paragraph 4 mentions that a certified copy of the order appealed against be attached. Mr. Dutta stated that in cases of appeals and revisions, the certified copy of the order moved against must be as they are required to be filed but that would not be the case in case of a reference, as the filing of the certified copy is not required statutorily and more particularly when there is specific ouster of the necessity to file certified copy in case of reference applications and not in cases of appeals and revisions.

26. Mr. Dutta also read and placed reliance on the provisions of Rules 75, 77 and 80 of the said Rules and claimed that all the rules are not applicable as a whole and in fact, under Regulation 16(ii) of the said Regulations, rules in respect of revisions under the said Act shall apply, when and where all the provisions are applicable and not in cases where they cannot be made applicable. Such should, according to Mr. Dutta, be the interpretation of the words 'mutatis mutandis' as mentioned in Regulation 16(ii) of the said regulations and the provisions in Rules 75-77 and 80 will have applications in cases other than applications for reference. These apart, it was contended by Mr. Dutta that the provisions of Rule 83A and the word 'document' as used therein, would not include certified copy of the order moved against and as such, the impugned order rejecting the proceeding without condoning the delay, was just, fair, proper, valid and legal and was made with jurisdiction, authority, competence and power.

27. It was further claimed by Mr. Dutta that Regulation 16(ii) was not applicable in this case and even if the same is applicable, that would be of no use and effect and that too on the proper construction and interpretation of the phrase 'mutatis mutandis'. In support of such submissions and on the construction and interpretation of the phrase 'mutatis mutandis', reference was made to the determinations in the case of Debi Mata v. State of West Bengal (1972) 76 CWN 308, which has observed that by the phrase 'mutatis mutandis' as in Sections 60 and 61 of the Estates Acquisition Act, 1953, the legislature has neither abdicated nor delegated any of its legislative powers. Such a phrase is often used in legislation in applying or extending legislative provisions to same or similar circumstances or to same or similar subjects and such phrase is nothing but a rule of adaptation. It was specifically claimed by Mr. Dutta that the terms 'as far as applicable' would not mean the application of the whole rules, but that would mean application of the rules as far as possible and permissible.

28. When a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change be necessary, some change shall nevertheless be made. Apart from the observations as in Debi Mata's case (1972) 76 CWN 308, in the case of Corporation of Calcutta v. Sirajuddin (1957) 61 CWN 1009 (FB) it has been observed that the phrase is an adverbial phrase, qualifying the verb 'shall apply' and meaning 'those changes being made which must be made'. The phrase has its own and usual meaning, viz., that only such verbal changes are to be made in the statute as would make the principles embodied therein applicable in respect of an application for reference. In terms of the determinations in the case of Khushi Ram Raghunath Sahai v. Commissioner of Income-tax ILR [1954] Pun 338, the use of the phrase 'mutatis mutandis', would not be capable of being so extended as to exclude altogether the provision in the Rules, regarding what constitutes the date of institution, when either an appeal or an application under Section 66(1) of the Income-tax Act is filed through post. The phrase mutatis mutandis, according to Osborn's, The Concise Law Dictionary, means necessary changes being made, same is also the meaning according to the Law Dictionary by Mozley and Whiteley's. Such is also the meaning of the phrase according to Webster's. The phrase, according to Oxford's means with due alteration of details.

29. Mr. Dutta, on a reference to the provisions of the statute and the relevant Rules or regulations and forms, which lay down specifically that in cases of appeals and revisions certified copies are required to be annexed and filed, contended that when such filing of certified copy was not required or mentioned in form A, i. e., application for a reference, the legislative intent was clear, viz., in cases of appeals and revisions, copies of the order moved against must be filed and as such in those cases, the time required or consumed for obtaining the concerned certified copies could he taken into consideration, but the position would be otherwise, in the case of a reference application, since certified copy along with such application is not statutorily required to be filed. As such, it was specifically claimed by Mr. Dutta, that the said company would not be in a position to claim credit for the days they required for obtaining the certified copy and more particularly in the matter of calculating the period of limitation.

30. Admittedly, Rule 83A(iii) and form A, as relevant for an application for a reference, contemplates filing of such 'documents' which the assessee may deem necessary to file. 'Document' is something that furnishes evidence, specially a legal deed or other piece of writing. 'Documents' shall also include any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, which is intended to be used, or which may be used, for the purpose of recording that matter. 'Document' will also include summons, notice, requisition, order, other legal process and registers. Any decipherable information, which is set down in a lasting form would be a document. 'Document' is a written paper or something similar, which may be put forward in evidence. The term 'document' means a document legally enforceable. An instrument on which is recorded, by means of letter, figures or marks, matters which may be evidentially used, would be 'document'. The expression 'document' would also mean something, on which things are written, printed or inscribed and which gives information and would also include, any written thing, capable of being evidence, a paper or other material thing affording information, proof or evidence of anything. 'Document' would also mean and include something to provide with factual or substantial support for statements, made on a hypothesis proposed and also to equip with exact references to authoritative supporting information. On the basis of the various meanings of 'document' as indicated above and since 'document' means and includes amongst others an order or any written thing, capable of being evidence, a paper or other material thing affording information, proof or evidence of anything and the same would also mean and include something to provide with factual or substantial support for statements made, I fail to understand why a certified copy of the Board's order, on such tests as mentioned above, would not be a ''document', in terms of Rule 83A(iii) or form A as reproduced hereinbefore.

31. Thus, on the provisions of the statute as stand now and not in those days, when determinations in the cases of Director of Supplies and Disposals, Calcutta v. Member, Board of Revenue [1960] 11 STC 589 and Guest Keen Williams Ltd. v. Additional Member, Board of Revenue [1968] 22 STC 198, were made, the assessee, if he so wants, may annex a certified copy of the order under challenge, with an application for a reference and in that case, the law regarding the computation of limitation would apply and if the assessee duly applies for the certified copy of the concerned order in time and also satisfies the other requisite formalities, would be entitled or should expect to get the necessary credit for the days as required for obtaining such copy. The Limitation Act, 1963, would apply so far as tribunals under the said Act are concerned and for ends of justice, such tribunals, as are constituted to hear appeals, revisions and references under the said Act, in view, are clothed with the power to condone delay in appropriate cases. In computing the period of limitation for an application under Section 21 as involved, requiring the Board of Revenue to state a case, or in any other appropriate proceeding, the time requisite for obtaining a copy of the order of the Board, should be excluded in terms of Section 12 of the Limitation Act, 1963.

32. As indicated hereinbefore, the incorporation of the said regulations and more particularly Regulation 16(ii) and Rule 83A(iii) of the said Rules read along with form A, have changed the earlier position and not only on the basis as indicated above, but also on the application of the phrase 'mutatis mutandis', which means amongst others 'necessary changes being made', I think the rules relating to revisions under the said Act would also apply. There is no provision in the said Act either regarding computation of period of limitation similar to the Income-tax Act, 1961, or expressly excluding the application of the provisions contained in the Limitation Act, 1963. So the provisions of Sections 4, 5 and 12 of the Limitation Act, 1963, shall also apply. It should also be noted that previously, there was no special form prescribed for an application under Section 21 of the said Act and now, such form has been statutorily prescribed, which has also specified the documents to be annexed and filed. Such word 'document' as mentioned in form A, in my view, on the definition of the same, may also include the certified copy of the order moved against and as such, on the views as expressed earlier, I hold that an assessee willing to annex the certified copy would be entitled to claim the credit for the days required by him to obtain the same, subject of course to the other provisions of the Limitation Act.

33. For the views as above, this application should succeed and I order accordingly. The rule is made absolute. There will be no order as to costs.

34. The case should now go back before the Tribunal, for due and appropriate determination of the application for condonation of delay as filed by the assessee and then to decide and determine, if necessary, the application for reference in accordance with law.

35. Prayer for stay of operation of the order is refused.


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