9911796707
TMI Blog1965 (1) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax) (Second Amendment) Act, 1955, and this amending Act omitted item No. 22 altogether. By reason of such amendment, on and from 25th September, 1955, transactions in bullion and specie became liable to sales tax. Prior to the amendment, therefore, the appellant's business in sale and purchase of bullion and specie was not affected by the taxing provisions in the Bengal Finance (Sales Tax) Act, 1941. But upon the amendment of the Act, the appellant's registration certificate, as a dealer in bullion and specie, needed amendment to cover its transactions in those commodities. After the amendment such transactions became taxable unless included in the registration certificate of a dealer. After the amendment of the Act, certain amendments were made in the registration certificate of the appellant as noted below: "For the purpose of manufacture: (1) Raw materials. (2) Plant, machinery, spare parts and accessories. (3) Consumable stores, viz., bullion and silver provided that all goods for which exemption from payment of sales tax is claimed are intended for use in the actual process of manufacture of the goods named below: (i) Gold and silver ornaments. (ii) Utensils." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by which a sum of Rs. 2,000 was accepted as composition. A further order was made, whereby the declaration forms issued by the appellant, were to be treated as valid, so that the dealers from whom the appellant made purchases might not ask the appellant to pay tax in respect of the transactions, and the Commercial Tax Officer was directed to issue an order to the appellant so that it might be shown to the selling dealers and the Commercial Tax Officer concerned. This further sum was also duly paid by the appellant. The respondent No. 1 however did not issue any letter to the appellant as directed by the order of the Commissioner, Commercial Taxes. Furthermore, the Commercial Tax Officer, Raja Katra, decided to disallow purchases made by the appellant of bullion valued at Rs. 91,55,204-2-3 as sales to a registered dealer under section 5(2)(a)(ii) of the Act. The consequence of this decision was that the appellant became liable to pay sales tax on the said purchase in spite of the order made by the Commissioner, Commercial Taxes, on 20th January, 1959. The appellant thereupon applied before the Commissioner, Commercial Taxes, for an order on the Commercial Tax Officer, Raja Katra, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prescribed forms in his transactions, which he should not have done, as such transactions were not included in its registration certificate. It was contended before us that the declaration forms were issued by the appellant under a mistaken belief with regard to its rights to enter into tax-free transactions in bullion and specie. In any event the appellant paid the composition money twice as mentioned above, for compounding the offence with which it was charged. Learned counsel for the appellant next argued by referring to section 7(5) of the Act that since his client had paid composition money under section 23, it was entitled to be registered and was also entitled to an amendment of its certificate of registration so as to include therein transactions in bullion and specie. The offence charged being issue of declaration forms without a corresponding entry in the registration certificate and that particular offence having been compounded, learned counsel contended that the registration certificate should have been amended so as to include therein transactions in bullion and specie. It was contended that it was the statutory obligation of the Commissioner, Commercial Taxes, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant that section 20 of the Act dealt with appeal, revision and review. Subsection (5) of section 20 provides that before any order is passed under this section which is likely to affect any person adversely, such person shall be given reasonable opportunity of being heard. It was argued that the order of 15th March, 1960, was an order made on review of the earlier order made on 20th January, 1959, and that being so, it was incumbent upon Mr. S.K. Ghosh, the then Commissioner, to give reasonable opportunity to the appellant to make representations against the proposed order. No such opportunity was at all given to the appellant. The order dated 15th. March, 1960, prejudicially affects the appellant. He was entitled to be heard and the statute has conferred upon him the right to be heard. The provisions in section 20(5) are mandatory in nature and as there is a clear violation of this provision, the order made on 15th March, 1960, must be quashed. This point, namely, that the appellant was not given a reasonable opportunity of being heard was specifically taken in ground No. IX(e) set out under paragraph 23 of the petition. This contention of the appellant has been dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er given to the appellant. I cannot accept the contention of Mr. Dutt that this is a question of fact and cannot be gone into. Mr. Dutt next contended that Mr. S.K. Ghosh was quite competent to review the order passed by Mr. A.C. Roy on 20th January, 1959. In support of this contention Mr. Dutt relied upon rule 82 of the Bengal Sales Tax Rules, which provides that no officer below the rank of Commissioner shall review any order which has been passed by any of his predecessor-in-office. He contended that the rule clearly provides for review by one Commissioner of an order passed by his predecessor-in-office. Mr. Dutt's contention on this question is well-founded. It is true that section 20(4) provides that an order made by any person appointed under section 3 of the Act may be reviewed by the person passing it, but this sub-section has been made expressly subject to such rules as may be prescribed and rule 82 quite clearly empowers a Commissioner to review an order made by his predecessor-in-office. That being so, in my opinion, the order made on 15th March, 1960, cannot be assailed on the ground that the Commissioner had no jurisdiction to review the order made on 20th January, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t deals with the Commissioner's power of composition of offences under section 22(1) of the Act and the appellant was charged with an offence under a particular section of the Act, namely, section 22(1)(c), which, as noticed earlier, deals with the question of a false representation made by a registered dealer when purchasing goods. The appellant in this case was charged with making a false representation, namely, that the purchase of bullion and specie was covered by its registration certificate. The offence of the appellant, therefore, which the Commissioner compounded, was the offence of making a false representation relating to the certificate of registration. It cannot be overlooked that the offence with which the appellant was charged was an offence under section 22(1)(c) and it was that particular offence which was compounded. I cannot therefore hold that Mr. A.C. Roy, Commissioner, Commercial Taxes, had no jurisdiction to direct that the declaration forms issued by the appellant were to be treated as valid and therefore the order having been made without jurisdiction is bad and void ab initio. Mr. Dutt next advanced another argument based on the provisions in section 11(5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct had been violated. As I have already dealt with this argument, it is not necessary for me to linger on this question any further. In my opinion, Mr. A.C. Roy, Commissioner, Commercial Taxes, had the jurisdiction and the authority to make the order dated 20th January, 1959, including the order directing that the declaration forms issued by the appellant were to be treated as valid. Mr. S.K. Ghosh, the successor in the office of the Commissioner, Commercial Taxes, also had the jurisdiction to review the order passed by the predecessor-in-office and the order passed by him on 15th March, 1960, was not made without jurisdiction and is not void or invalid on that ground. But the order made by Mr. Ghosh on 15th March, 1960, was made in violation of section 20(5) of the Act and for that reason the order must be quashed. For the reasons mentioned above this appeal is allowed. The judgment and order of Banerjee, J., dated 14th January, 1963, are set aside. Let a writ issue in the nature of certiorari for quashing the order dated 15th March, 1960. Let a writ in the nature of mandamus also issue directing the respondents not to give any further effect to the said order of 15th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
