Skip to content


M/S. Jyoti Paper Industries, Keshab Bag, 114, Prince Street, Bombay-2 and Branch Office at 51, Canning Street, Calcutta Vs. Commissioner of Commercial Taxes, West Bengal 14, Belighata Road, Calcutta-15 and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 6598 of 1976
Reported in(1976)5CTR(Cal)301
AppellantM/S. Jyoti Paper Industries, Keshab Bag, 114, Prince Street, Bombay-2 and Branch Office at 51, Canni
RespondentCommissioner of Commercial Taxes, West Bengal 14, Belighata Road, Calcutta-15 and ors.
Cases ReferredU.P. vs. S. N. Brothers
Excerpt:
- .....the 1954 act. the effect therefore is that while under the 1941 act all goods come within the purview of that act except goods which are excluded by the provisions of section 6 of that act, under the 1954 act articles to come under the 1954 act must be notified or specified and those specified goods under the 1954 act would by virtue of section 23 of the act go out of purview of 1941 act. pursuant to the aforesaid authority of section 25 of the 1954 act on 10th of may, 1963 a notification was issued making amongest others the following commodities notified goods :(1) 'paper of all varieties and descriptions, other than newsprints :(2) paper boards and straw boards;'in 1967 there was another notification amending the said 1963 notification and in place of the goods relating to serial.....
Judgment:

Sabyasachi Mukharjee, J. - The petitioner applied for registration under the Bengal Finance (Sales Tax) Act, 1941. The petitioner declared in the application in forms IA and IC that the petitioner was a reseller of 'processed paper and processed board'. The Commercial Tax Officer by his order dated the 16th August, 1973 rejected the said application on the ground that the petitioner dealt with articles which were notified commodities under the West Bengal (Sales Tax) Act, 1954 and therefore, the petitioner was not entitled to be registered under the Bengal Finance (Sales Tax) Act, 1941. From the aforesaid order there was an application for revision and by the order dated the 22nd of December, 1973 the Assistant Commissioner of Commercial Taxes affirmed the order of the Commercial Tax Officer and rejected the petitioners application. Thereupon, there was a further revisional application before the Additional Commissioner of Commercial Taxes, West Bengal, and by the order dated the 23rd of July, 1974 the Additional Commissioner has rejected the said revision application and affirmed the order of the Commercial Tax Officer. The property and the validity of the aforesaid three orders are the subject matters of challenge in this application under Article 226 of the Constitution.

2. Under the scheme of the Bengal Finance (Sales Tax) Act, 1941 hereinafter referred to as 1941 Act transactions or sales in respect of all commodities except those which are specified in the first column of schedule I are taxable but in 1954 West Bengal Sales Tax Act, 1954 came into effect, which was to impose a tax on the sale of certain notified commodities in West Bengal. Under Section 23 of the 1954 Act it is provided that nothing in the 1941 Act should apply to a notified commodity from the date on which the said commodity was notified under section 25 of the 1954 Act. Section 25 of the said Act gives power to the State Government to specify commodities taxable under the 1954 Act. The effect therefore is that while under the 1941 Act all goods come within the purview of that Act except goods which are excluded by the provisions of section 6 of that Act, under the 1954 Act articles to come under the 1954 Act must be notified or specified and those specified goods under the 1954 Act would by virtue of section 23 of the Act go out of purview of 1941 Act. Pursuant to the aforesaid authority of section 25 of the 1954 Act on 10th of May, 1963 a notification was issued making amongest others the following commodities notified goods :

(1) 'Paper of all varieties and descriptions, other than newsprints :

(2) Paper boards and straw boards;'

In 1967 there was another notification amending the said 1963 notification and in place of the goods relating to serial No. (1) of the 1963 notification the following entry has been substituted :-

'Paper of all varieties and descriptions,

Except -

(i) newsprint, and

(ii) hand-made paper, that is to say, paper made by hand and not made or processed in any machine.'

Therefore, as a result of the said amendment of the notification under the first head, paper of all varieties or descriptions except newsprint and hand-made paper came within the purview of the 1954 Act and went out of the purview of the 1941 Act. Similarly, under serial No. (2) of the 1963 notification 'Paper boards and straw boards' continued to remain within the purview of the 1954 Act and outside the purview of the 1941 Act.

3. The Sales Tax Authorities have taken the view that 'processed paper and processed board' come within the variety of paper which has been notified under the 1954 Act as such the petitioner being a dealer in those articles was not entitled to be registered under the provisions of the Bengal Finance (Sales Tax) Act, 1941.

4. On behalf of the petitioner it was contended that on the 9th of June, 1973 the said Commercial Tax Officer, Shalimar Check Post, when the goods of the petitioner had been detained at the said check post that the articles imported did not come within the purview of the West Bengal Sales Tax Act, 1964 and, therefore, no permit was required. It was further contended that in the trade circulars issued by the department it was intimated that such processed papers did not come within the purview of the 1954 Act. Counsel for the petitioner also drew my attention to item 36 of rule 3 of the West Bengal Sales Tax Rules, 1941 as amended in 1963 which had excluded sales of exercise books, laboratory note books, drawing books, graph books, ruled paper and graph from the taxable turnover of a dealer, under section 4 of the 1941 Act. Counsel for the petitioner submitted that unless these articles came within the purview of 1941 Act there was no scope of excluding them from the gross taxable turnover. In the premises, it was urged that it was recognition of the legislative intent that these papers, namely, items included in item 36 of the said rule did come within the purview of 1941 Act. In the premises it was urged that the said goods did not come as notified goods under section 25 of the 1954 Act, and therefore, the petitioner was entitled to be registered under 1941 Act. Counsel further submitted that the Sales Tax Department being in doubt had issued the trade circular referred to hereinbefore and furthermore the Commercial Tax Officer in the letter referred to hereinbefore had also taken this view. Therefore, where two views were possible the view which would be more beneficial to the dealer should be taken. It was, further, contended that, 1941 Act applied to all articles except those which were specified or notified under 1954 Act. So, from that point of view applicability of 1941 Act was dependent on the residuary clause which was of the wider amplitude. Therefore, it was urged that the petitioner was entitled to be registered under 1941 Act.

5. In considering this question certain broad principles have to be borne in mind. In order to come within 1954 Act the articles must be specified by notification; whatever was not notified or specified would not come within the purview of 1954 Act. Whatever did not come within the purview of 1954 Act would come within the purview of 1941 Act, subject the exclusive under Sec. 6 of the 1941 Act. A taxing statute and its provisions should be strictly construed so that its incidence was not extended beyond the sanction of law. In case of doubt such interpretation should be preferred which benefited the person who would be liable under the Act. The intention to impose a charge must be shown by clear and unambiguous language used. The subject of the tax must be clear and the object of the levy must be definite. If the provisions were susceptible to two meanings, the courts would prefer that meaning which was more favourable to the subject. See the observations of the Division Bench of this Court in the case of the State of West Bengal vs. Lal Chand Agarwalla, 77 C.W.N. 910, and the decision of Anil Kumar Sen, J. in the case of Lalchand Agarwalla and Ors. vs. State of West Bengal and Ors., 76 C.W.N. 120, and also the unreported decision of mine in the case of Indian Tobacco Company Limited vs. Director of Entry Taxes, Government of West Bengal, Civil Rule No. 2787W of 1971. There must be a definite identifiable test in order to attract liability to tax and in the absence of any identifiable standard, it would naturally give rise to the scope for arbitrary assessment at the hands of different authorities. Therefore, there must be a clear definition of an item which should be incapable of giving rise to a confounding controversy. There should be a uniform and definite test. See the observations of the Supreme Court in the case of Union of India vs. The Tata Iron and Steel Co. Ltd., A.I.R. 1975 S.C. 769 : 1975 CTR (S.C.) 40. Where, however, two alternative interpretations were possible of the scope and applicability of an object of tax and the taxing authorities adopt a reasonable view relating thereto which is favourable to the Revenue, such finding of the authorities cannot be interfered with by High Court under Article 226 of the Constitution even though another view contrary to one adopted is in favour of the subject. See the observation of the Supreme Court in V. V. Iyer vs. Jasjit Singh, Collector of Customs and another, A.I.R. 1973 S.C. 194.

6. Keeping the aforesaid principles in mind it is necessary to examine the finding of the authorities. The Commercial Tax Officer in his impugned order has referred to the notification dated the 10th of May, 1963 issued under the 1954 Act as referred to hereinbefore and observed that the commodities referred to in the notification were wide enough to engulf the articles dealt in by dealer under discussion. It is not in dispute that both under 1963 and 1967 notifications papers of all varieties except certain specified kinds of paper, which are not the types of paper dealt with by the petitioner, in the instant case, came within the purview of 1954 Act. It has also to be borne in mind that where no definition is provided and often becomes necessary to accept the meaning given in common parlance or in the trade. The Commercial Tax Officer has referred to the statement contained in the Public Relations Officers letter and has explained the circumstances and the background under which the Public Relations Officer issued that letter. The view expressed by the Public Relations Officer or in the trade circular cannot be conclusive or decisive of a matter when authorities under the law on the evidence and materials before them come to a finding contrary to the view taken in the trade circles or Public Relations Officer. The circumstance under which the Commercial Tax Officer wrote the letter dated the 9th of June, 1973 have also been explained in the affidavit-in-opposition. That is also, in my opinion, not decisive and do not debar the authorities constituted under the Act to decide whether the petitioner dealt with the commodities coming under 1954 Act, and the authorities below had the advantage of examining the samples of paper dealt with by the petitioner. They had also no evidence to the contrary that these articles were not treated or dealt with or understood in trade or in business or in common parlance as paper of a variety. Reliance in this connection may be placed on the observations of the Supreme Court in the case of Kores (India) Ltd., Kanpur vs. U.P. and another (1970) 27 S.T.C. 126, and the case of Kilburn & Co. Ltd. vs. Commissioner of Sales Tax, U.P., (1973) 31 S.T.C. 615, and also the case of Sales Tax Commissioner, U.P. vs. S. N. Brothers, (1973) 31 S.T.C. 302. Counsel for the petitioner drew my attention to the observations of the Supreme Court in the case of State of Tamil Nadu vs. M/s. Pyarelal Malhotra & Ors., (1976) I.S.C.C. 834 : 1976 CTR (S.C.) 278. The Supreme Court there observed that the ordinarily meaning would be assigned to a taxable item in a list of specified item and that each item so specified was to be considered as a separatedly taxable item for purpose of single point taxation in a series of sales unless the contrary was shown. This principle, in my opinion, does not in any way affect the consideration of this case. The question in this case is ultimately whether 'processed paper or processed board' come either as a variety of paper or as paper board as mentioned in the notification of 1967. The authorities below on evidence before them have come to the view that these do come within these items. If they come then they because notified and specified items under 1954 Act and as such the provisions of 1941 Act would not be applicable. In the aforesaid view of the matter it cannot be said that the view taken by the Sales Tax Authorities was not possible view and if that is the position, in my opinion in this application under Article 226 of the Constitution I cannot interfere with such decision. In that view of the matter, the petitioners application for registration was rightly refused. The application therefore fails and it is accordingly dismissed. The Rule nisi is discharged.Interim order, if any, is vacated. There will be no order as to costs.

7. This however will not prevent the petitioner from raising or contending that the items dealt with by the petitioner are not taxable items in assessment under either of the two Acts, if and when such assessments take place.

8. There will be a stay of operation of this order till one week after the ensuing Easter vacation.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //