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TMI Blog1980 (8) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 has been registered under the Bengal Finance (Sales Tax) Act of 1941 with the appropriate authorities and its registration certificate No. is SH/3931A. The petitioners had never been taxed by respondent No. 1 over those commodities as those commodities were purchased by the petitioners locally upon payment of tax. The persons who are required to be registered under the said Act must be either an importer or a manufacturer of any of the notified commodities covered by the West Bengal Sales Tax Act, 1954. It was the case of the petitioners that all on a sudden, petitioner No. 1 was served with a notice under section 9(3) of the West Bengal Sales Tax Act, 1954, to appear before respondent No. 1 and to show cause as to why the petitioners should not be assessed to tax under the West Bengal Sales Tax Act, 1954, on the powdered turmeric and black or white pepper. In the petition the petitioners have given various particulars of the purchase of the said turmeric as also black pepper/white pepper as shown in the orders of assessment under the Bengal Finance (Sales Tax) Act, 1941, for the years 1373 B.S. to 1384 B.S. the entire gross amounts of sales were assessed as consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Act the turmeric has been defined as "turmeric, known locally as haridra or halud, that is to say, the product obtained from the plant 'curcuma longa' whole, broken, ground or powdered, or of any other form or description whatsoever". Black pepper and white pepper have been defined as "known locally as gol marich, that is to say, the berry of the plant 'piper nigrum', whole, broken, ground or powdered, or of any other form or description whatsoever". A dealer has been defined under section 2(b) of the said Act and means "any person who sells notified commodities manufactured, made or processed by him in West Bengal, or brought by him into West Bengal from any place outside West Bengal for the purpose of sale in West Bengal and includes Government". According to the petitioner, the turmeric and black pepper and white pepper purchased by the petitioners from the local market which is deductible from the gross amount payable as consideration for sale in West Bengal of such notified commodity in terms of form No. IIIA prescribed under rule 21A of the West Bengal Sales Tax Rules, 1954, remains a notified commodity even after the same is powdered, simply because the said commodity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collect taxes over and again on the same goods and the learned judge while delivering judgment in Mahabirprasad Birhiwala v. State of West Bengal reported in [1973] 31 STC 628 did not consider the object and also the entire frame of the Act which, according to the petitioners, was passed in per incuriam and noscitur a sociis. As such it has no binding effect. It is the petitioners' further case that more liberal and favourable interpretation should be given to section 2(b) in favour of the assessee. It is the petitioners' further grievance that the assessment for the years 1373 B.S. to 1384 B.S. having been completed under the Bengal Finance (Sales Tax) Act of 1941, after taking into consideration the return with supporting documents, vouchers and after the authorities being satisfied that the said commodities had been purchased from the local market within the State of West Bengal the petitioners cannot be held liable to pay tax under the West Bengal Sales Tax Act, 1954. The petitioners have also further taken the point of limitation. According to them, respondent No. 1 is debarred from making any assessment beyond a period of three years. Mr. Gopal Chakraborty appeared on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction, arbitrary and void. Hence the petitioners have come to take advantage of this speedy and effective efficacious remedy. From annexure A to the petition it would appear that the names of the dealers, their addresses, bill number, date and amount of purchase and the tax paid have been fully set out which particulars had not only been submitted before respondent No. 1 but respondent No. 1 has accepted the same by completing the assessment for the said years. From the impugned notices it would appear that respondent No. 1 had stated thereunder "I am satisfied on information...................that you are liable to pay tax under the West Bengal Sales Tax Act, 1954, in respect of the period commencing from 1st of Baisakh, 1384, ending with last Chaitra, 1384 B.S." and proposed to assess the petitioners under sub-section (3) of section 9 of the West Bengal Sales Tax Act, 1954, to the best of his judgment in respect of the said period. Various assessment orders have been annexed to the petition to show that the petitioners had been exempted from payment of tax on halud or haridra in the previous years. From the said assessment order it would appear that respondent No. 1 had accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners had not challenged the inherent lack of jurisdiction of the officer to serve a notice nor there is any allegation that there was violation of the provisions of the statute. Moreover there are complicated questions of facts as respondent No. 1 through affidavit has not admitted the facts as stated in the petition. The fact that the petitioners have made local purchases was disputed by respondent No. 1 in the affidavit-in-opposition. As such this Court should not turn itself into a factfinding body. Mr. Bhattacharyya relied on the case of Mahabirprasad Birhiwala v. State of West Bengal reported in [1973] 31 STC 628. He further submitted that the provisions of the Limitation Act do not apply as no particular period was fixed by the Sales Tax Act for such assessment. As a result section 29 of the Limitation Act has no application whatsoever in this case. From the submissions made by the learned lawyers and also from the affidavits and the documents relied on by the parties it would appear that the petitioner was neither an importer nor a manufacturer of any of the notified commodities covered by the West Bengal Sales Tax Act, 1954. The petitioner's entire sales have been ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bengal Finance (Sales Tax) Act, 1941, after taking into consideration the returns after verifying the documents, vouchers and only after the authorities were satisfied that the said commodities had been purchased from the local market within the State of West Bengal. Hence the petitioner was held not to be liable to pay any tax under the West Bengal Sales Tax Act, 1954. It is an admitted fact that the turmeric had been purchased from the State of West Bengal and since the purchase they had been powdered by the petitioner and by powdering the same the inherent character either commercially or botanically have not become a different character. Hence it was not taxable as a notified commodity, manufactured or processed. The Act did not make any provision for taxing the commodities which were secured by purchase within the State of West Bengal. Rules prescribed exempt from tax of notified commodities secured by purchase within the State of West Bengal. From annexure A it would appear that the names of the dealers, their addresses, bill Nos., the amount of purchase and the tax paid on the same had been duly set out, which particulars have been duly accepted by the respondents by co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said notice was bad as the provision of section 9, sub-section (3), of the said Act had not been satisfied. As indicated above if the petitioners were made liable to pay taxes then it would amount to imposition of taxes at more than one point which is against the principles of taxation under the West Bengal Sales Tax Act, 1954. The petitioners do not become dealers under section 2(b) of the West Bengal Sales Tax Act, 1954, as I am of the view that the petitioners have not manufactured, made or processed the notified commodities in West Bengal, neither the petitioners brought the said commodities from outside West Bengal for the purpose of sale in West Bengal as it was an accepted fact that the petitioners have made the purchases in the State of West Bengal. "Dealer" includes two categories of persons (i) who sells notified commodities by manufacturing, making or processing them, that is, the notified commodities, either been produced by manufacturing, making or processing the notified commodities, (ii) one who sells the said commodities after importing the same in West Bengal from outside West Bengal. There is no evidence on record whatsoever that the petitioners were either i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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