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TMI Blog1989 (3) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration that the West Bengal Taxation Laws (Amendment) Act, 1987, particularly section 2(4)(B)(b)(ii) thereof is illegal and ultra vires the Constitution and for consequential reliefs restraining the respondents from realising any sales tax/turnover tax from the petitioners during the period from 2nd June, 1986 to 1st June, 1989 and directing the respondents, particularly the respondent No. 4 to issue 220 number of declaration forms and form "C" to the petitioners forthwith, as indicated in the writ petition. It is stated that the petitioners are running the business of manufacture and sale of voltage stabilizer, television sets, both coloured and black and white as a small-scale industrial unit with total capital investment of Rs. 58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry by departmental instructions but also statutory exemptions have been granted for offering inducement to persons to set up small-scale industry in West Bengal during the initial stage which is a most difficult period for any newly set up industry to survive, by way of total exemption as granted from payment of sales/turnover tax. Acting on such representation the petitioners initially intended to start a business of manufacture and sale of tape-recorders but subsequently started business of manufacture and sale of other electrical appliances particularly voltage stabilizer, television sets both coloured and black and white in a competitive market. According to the petitioners, they are not liable to pay sales tax and turnover tax and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s writ petition on the ground that since the petitioners are not liable to pay sales tax and particularly turnover tax as per provisions laid down in section 4AAA(2)(d) of the West Bengal Sales Tax Act, the respondents cannot withhold declaration form for any alleged non-payment of turnover tax, on the further ground that so long as section 6B(2)(e) of the Bengal Finance (Sales Tax) Act, 1941, was in force, that is, prior to enactment of West Bengal Taxation Laws (Amendment) Act, 1987, providing for relief to the petitioners from payment of turnover tax, the purported demand of turnover tax from the petitioners by the Commercial Tax Officer during the concerned period is illegal, arbitrary and against the provisions of sales tax laws. A cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is not at all covered by section 4AA of the West Bengal Sales Tax Act, 1954, under which the said certificate is to be granted to newly set up small-scale industrial unit on the strength whereof a dealer could enjoy the benefit of tax exemption on sales of notified commodities. It is further stated that turnover tax came to be levied under section 4AAA of the Act with effect from 1st April, 1979 and the manner of computation of liability of turnover tax has also been set out therein. The petitioners filed an affidavit-in-reply reiterating the same points and stand as taken in the writ petition. The attention of this Court has been drawn to several reported decisions. It is argued with force that with regard to the challenge as to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those exemptions which do not come within the ambit of the proviso. It was brought to the notice of this Court also that as to the principle propagated in [1984] 55 STC 93 (Kar) (B.P. Automobiles v. State of Karnataka) wherein Legislative powers-sales tax-additional tax-exemptionlevy of additional tax by section 6B(2), Karnataka Act, were considered, it was concluded that the clear and unambiguous language of section 6B(2) of the said Act and the unescapable effect of it could not be whittled down and made to yield to the doubtful and supposed intention of section 6B(1). Further section 5(1) of the Act was the charging provision and the exemption provided under section 5(3)(a) and (b) to the levy under section 5(1) and section 6 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The power to impose a tax is undoubtedly a legislative power. That power can be exercised by the Legislature directly or subject to certain conditions the Legislature may delegate that power to some other authority. But the exercise of that power, whether by the Legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a Legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact." After hearing a very lengthy argument advanced by the learned Advocates for both the si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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