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Major Soap Co. Ltd. Vs. Asst. Commr. of Commercial Taxes, Calcutta - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberMatter No. 105 of 1950
Judge
Reported inAIR1953Cal712
ActsBengal Finance (Sales Tax) Act, 1941 - Sections 2, 15, 17, 18, 20 and 21; ;Constitution of India - Article 226; ;Bengal Finance (Sales Tax) Rules - Rules 71 and 74
AppellantMajor Soap Co. Ltd.
RespondentAsst. Commr. of Commercial Taxes, Calcutta
Appellant AdvocateE.R. Meyer, Adv.
Respondent AdvocateA.K. Sen, Adv.
Excerpt:
- .....is it a 'dealer' within the meaning of the definition in the act, and it has been registered as a dealer and transferee under a misapprehension as to its correct status. the company asserts that it is not a 'transferee' as the assets and liabilities of major soap company have not been transferred to it.3. on 12-4-1950 the commercial tax officer, colootola charge, required the petitioner to produce books of accounts and records for the purpose of assessment of sales tax in respect of 4 quarters ending 31-3-48 and 4 quarters ending 31-3-49.4. it appears that section 18, sales tax act, 1941, has been repealed by an ordinance promulgated by the government of west bengal being ordinance 10 of 1950.5. on 14-9-1950 the assistant commissioner, commercial taxes calcutta (south) by a requisition.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226 of the Constitution for Writs in the nature of Mandamus, Prohibition or Certiorari for cancelling or quashing a requisition calling upon the petitioner to produce books of accounts and records for the purpose of assessment of sales tax in respect of certain periods mentioned in the petition.

2. The petitioner is a company having its registered office at 25 Zakaria Street, Calcutta. The company was registered on 28-5-1948 and obtained Certificate of Commencement of its business on 31-5-1948 and got itself registered as a dealer under the Bengal Finance Sales Tax Act 1941 on 21-7-1948. The petitioner has acquired and taken over as a going concern the business of Major Soap Company which was a proprietary concern including the stock in trade, machinery, furniture and goodwill, etc., but neither the assets nor the liabilities and states that it is not a 'transferee' within the meaning of Section 17, Bengal Sales Tax Act. nor is it a 'dealer' within the meaning of the definition in the Act, and it has been registered as a dealer and transferee under a misapprehension as to its correct status. The Company asserts that it is not a 'transferee' as the assets and liabilities of Major Soap Company have not been transferred to it.

3. On 12-4-1950 the Commercial Tax Officer, Colootola charge, required the petitioner to produce books of accounts and records for the purpose of assessment of Sales Tax in respect of 4 quarters ending 31-3-48 and 4 quarters ending 31-3-49.

4. It appears that Section 18, Sales Tax Act, 1941, has been repealed by an Ordinance promulgated by the Government of West Bengal being Ordinance 10 of 1950.

5. On 14-9-1950 the Assistant Commissioner, Commercial Taxes Calcutta (South) by a requisition fixed 2-11-1950 for assessment of taxes for 4 quarters ending 31-3-48 and for 4 quarters ending 31-3-49.

6. The petitioner charges that these acts are without jurisdiction and ultra vires. It is contended by Mr. Meyer the learned counsel for the petitioner that as the assets and liabilities of the business have not been transferred, he is not a transferee of the business. This contention is fallacious and cannot be accepted. A business is a mercantile pursuit or a trading concern. A dealer as defined in Section 2 (c) of the Act is a person engaged in the business of selling or supplying goods. When the full rights in that business of selling or supplying goods are transferred to another person the latter becomes a transferee within the meaning of Section 17 of the Act. It appears that the petitioner company has acquired by virtue of the transfer the right to carry on the business, the stock-in-trade, machinery, furniture and goodwill and etc. In fact everything that is comprised in the connotation of a business has been assigned to the petitioner and the words 'et cetera' bring in, any other thing in relation to the business that may not have been specifically mentioned, excluding of course anything that is expressly excluded from the operation or scope of the transfer. The expression 'neither the assets nor the liabilities of the proprietor' has the effect of keeping out assets such as book debts due to the transferor or cash at the bank and also all liabilities. But the whole of the undertaking or enterprise has been transferred and because a portion of the assets or the liabilities is excluded from the scope of the transfer that does not prevent the ownership of the business passing and divesting the transferor of its ownership therein. I hold that the petitioner is a transferee within the meaning of Section 17 of the Act and as such a 'dealer' within the meaning of the Act.

7. The next point urged was that the expression 'any tax payable in respect of such business remaining unpaid' means tax which has already been assessed and the amount ascertained or determined and remaining outstanding or unpaid, and not tax which has not been assessed at the time of or before the transfer. This argument also appears to be based on a misapprehension of the scheme of the Act and of the true nature of the implications of the various sections of the Act.

8. Section 4 of the Act creates the liability to pay the tax, in other words the tax becomes payable by virtue of this section. Section 7 imposes duty to obtain and possess registration certificate. Section 10 lays down the mode of payment of tax. If the mode prescribed is not observed by the person liable to pay the tax the Commissioner may proceed to assess tax to the best of his judgment (Section 11). The question whether the amount of the tax is ascertained or not is immaterial and irrelevant. If the liability to pay the tax is there and such liability remains unsatisfied then the transferee becomes saddled with liability to pay such tax no matter whether the ascertainment or assessment was made or not. This is the plain implication of Section 17.

9. The petitioner has got itself registered under the Act as a transferee and dealer and that registration stands and has not been cancelled. The petitioner has not applied or taken steps for cancellation. So long as it remains on the register it cannot escape liability to pay the tax.

10. It was contended that by reason of the repeal of Section 18 of the Act by the Ordinance of 1950 there is no authority or officer to determine the question whether the petitioner is a dealer or not and so the petitioner is entitled to move this Court.

11. But under Section 15 of the Act the Commissioner can now delegate any of his powers to any person appointed to assist him, including his functions under Section 18 now that Section 18 is out of ' the way as a result of the repeal, subject of course to restrictions contained in Rule 71. Under Rule 71 the matter of registration of a dealer, amendment of certificate of registration or cancellation of registration can be delegated to Commercial Tax Officer, and it has been so done.

12. Section 20 and Rule 74 make provisions for , appeals, revision and review. Section 21 of the Act provides for statement of case to High Court.

13. Thus there is efficacious and adequate remedy under the Act. It is idle to suggest that by virtue of repeal of Section 18 the petitioner is without any remedy.

14. The petitioner described itself through its pleader as transferee and was registered as dealer as a matter of course. No question whether it was a transferee or not or dealer or not at all arose for determination.

15. There has been no refusal to exercise jurisdiction nor any excess of jurisdiction.

16. The application is wholly misconceived. Thepetition, therefore, fails and the Rule must bedischarged with costs.


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