9911796707
TMI Blog1976 (2) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... bir Prosad Agarwala and Hanuman Prosad Modi carrying on business under the trade name of Sitaram Sree Gopal. 67B, Netaji Subhas Road, Calcutta. Further particulars of Tax due under section 11(1) of the the public demand B/F(ST) Act, 1941 Rs. 13,161.93 for which this certifiPenalty u/s 11(1) 200.00 cate is signed. Penalty u/s 11(4B) 1,000.00 ------------Rs. 14,361.93 Name of district: 24-Parganas. I certify that the sums mentioned hereinbefore are due to the certificate-holder by the certificate-debtor(s) and that they are justly recoverable, the recovery by suit not being barred by law. Dated this 26th day of November, 1968." The said certificate is being challenged as without jurisdiction on three grounds. It was, firstly, contended that the certificate was wrongly filed in the name of the State of West Bengal. In the impugned certificate, the name and address of the certificate-holder has been indicated to be the State of West Bengal. It was contended that inasmuch as the said certificate related to the claims arising out of the dues under the Central Sales Tax Act, 1956, the certificate-holder would not be the State of West Bengal. It was contended that the said certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub-section. (3) The proceeds in any financial year of any tax, including any penalty, levied and collected under this Act in any State (other than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessment and levy by subsection (2) is a fiction created for the purpose of collection and realisation but does not transform the levy to be a levy by the State Government nor does it make the amount due an amount due to the State Government. The character of the liability, in my opinion, remains as the liability to the Central Government. The fiction of sub-section (2) to section 9 has not the effect of transforming the liability under the Central Sales Tax Act as the liability to the State Government or a debt due to the State Government, because, if that is so, then sub-section (3), which says that the proceeds collected on behalf of the Government of India shall be assigned to the State and retained by it would become unnecessary. Counsel for the revenue drew my attention to the statement of objects of the Central Sales Tax Act, 1956, which was, inter alia, to help the States to get the revenue. The object may be to augment the State's revenue but it is only by realising the revenue itself and assigning it to the State in the manner contemplated by sub-section (3) of section 9, which is in consonance with sub-clause (g) of clause (1) of article 269 of the Constitution, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act contemplated filing of a certificate which contained claim which the certificate-debtor was not liable to pay either in whole or in part. Therefore, in my opinion, the fact that part of the claim included (sic) cannot lawfully be imposed upon the certificate-debtor is not a ground, which invalidates the certificate as such. Counsel for the petitioner drew my attention to an unreported decision of T.K. Basu, J., in Matter No. 211 of 1967 (Tampratap Agarwalla v. Income-tax Officer, A Ward), in aid of the proposition that if the certificate included partly valid and partly invalid claim the whole certificate was liable to be quashed. I am unable to accept this contention. The decision referred to hereinabove does not also deal with that question. That was a case where a garnishee notice had been issued under section 226(3) of the Income-tax Act, 1961, which included the claim part of which was not recoverable against the assessee. The learned Judge held that the entire notice was bad. The learned Judge had no occasion to consider the provisions of section 9 of the Bengal Public Demands Recovery Act or even a provision similar to that. Section 226 of the Incometax Act, 1961, doe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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