9911796707
TMI Blog1991 (2) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 4 of the 1956 Act to the petitioner No. 1. Inasmuch as the questions to be decided in this matter ultimately involves only a question of interpretation of statutory provisions the matter is being disposed of without affidavits. 4. My attention was drawn to the decision of this Court in the unreported judgment of Commissioner of Commercial Taxes v. M/s. Hindusthan Petroleum Corporation Ltd. In that case the Court refused to entertain a reference application even though the question sought to be referred pertained to the Central Sales Tax Act, 1956 on the ground that the procedural machinery under the 1941 Act had been made applicable to the 1956 Act by virtue of Section 9 of 1956 Act. It was held that by virtue of the provisions of the West Bengal Taxation Tribunal Act, 1987 (hereinafter referred to as the 1987 Act) references in matters relating to the Central Sales Tax Act, 1956 were to be decided by the Tribunal set up under the 1987 Act. The decision in my mind turned upon the language of Section 9 of the 1956 Act, and is an authority for the proposition that in connection with matters relating to Central Sales Tax the procedure applicable under the 1941 Act includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Rules, 1941 (hereinafter referred to as the 1941 Rules) into the 1958 Rules mutatis mutandis. The effect of such incorporation is as if the 1941 Rules to the extent applicable was enacted in the 1958 Rules. A similar position was considered by this Court in the case of Md. Safi v. State of West Bengal Anr. reported in AIR 1951 Cal. 97. In that case the Court had to consider Section 8 of the West Bengal Land Development Planning Act, 1948 which provided that the provisions of the Land Acquisition Act, 1894 shall so far as may be apply . The Court held as follows - Legislation by incorporation is of common occurrence. The words so far as may be applied in S. 8 West Bengal Act XXI (21) of 1948, are common words of legislation by incorporation and is an expression interchangeable with expression mutatis mutandis as far as applicable like expressions. References may be made to the following Act to illustrate this form of legislation, (a) Marriage Validation Act [II(2) of 1892] (S. 5) (b) Presidency Small Cause Courts Act [XV (15) of 1982] (S. 48) (c) Succession Act [XXXIX (39) of 1925] (S. 268). The effect of the words so far as may be applied is to put th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agency in respect of the petitioner No. 1 by the Board for Industrial and Financial Reconstruction established under Section 4 of the 1985 Act (hereinafter referred to as BIFR). A Scheme was prepared by IDBI which was discussed at a joint meeting of the Institutions, Banks Promoters on 29th June 1990. Based on the consensus arrived at at the joint meeting, the Scheme formulated by the IDBI was revised. The revised Scheme for rehabilitating the petitioner No. 1 contained a clause - Sales Tax Loan. - An amount of Rs. 38 lakhs would be made available by State Government to meet the Sales Tax dues. This loan would be repayable in 9 years at interest rate of 6.75% p.a. 18. On 25th May, 1989 the Finance Department of the Government of West Bengal issued a notification being Notification No. 1633-F.T. by which it was notified that in the interest of revival of sick Industries, the State Government had decided to advance loans at concessional rates of interest for payment of Sales Tax arrears of the Sick Units. The procedure in respect of non-government companies was that the sick units would approach the Commerce Industries Department/Industrial Reconstruction Department of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provides - 22(1) Where in respect of an industrial company ............. a sanctioned Scheme is under implementation ...................... then notwithstanding anything contained ................... no proceedings for the winding up of the industrial company or for execution, distress or [the like against any of the properties of the (sic)] industrial company or for the appointment of a Receiver in respect thereof shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority." 24. It is contended that the refusal of the Sales Tax Authority to grant Declaration Forms viz. in form C comes within the phrase the like following the word distress . 25. Rule 27AA(2)(c) in so far as it is relevant provides as follows - (c) If the applicant for declaration forms has at the time of making the application defaulted in furnishing any return or returns or statement or statements, as the case may be under the Act, or any return or returns or statement or statements as the case may be, under the West Bengal Sales Tax Act, 1954 (West Bengal Act IV of 1954) or the Central Sales Tax Act, 1956 (74 of 1956) together with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tress are therefore : (a) An action to recover monies due; (b) taken summarily; (c) by retention of the goods of the debtor; 29. The meaning of execution has been given in Halsbury s Laws of England, 4th Edition Vol. 17 para 401 as follows : The word execution in its widest sense signifies the enforcement of or giving effect to the judgments or orders of Courts of justice. In a narrower sense, orders by a public officer. In the context of Section 22(1) in my view, envisaged is against the properties of the Company. 30. Both distress and execution therefore relate to methods of recovery of monies due from the Industrial Company. The phrase the like must, therefore be read in the same context. 31. By refusing the declaration forms can it be said that the Sales Tax Authorities were taking a like action? In my view it can, provided such refusal is due to the failure of the petitioner Company to pay its arrear dues and not on any other ground envisaged under Rule 27AA. My reasons for so holding are as follows : 32. Firstly the utilisation of the words the like would indicate that what is envisaged is not the same or identical procedure but a similar procedure. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
