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TMI Blog1990 (9) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... (Sales Tax) Act, 1941 (hereinafter called "the Act"), was under challenge in the Calcutta High Court and the said case was decided only on 4th August, 1986. Because of the uncertainty with regard to the validity of its imposition the tax in respect of the construction division could not be paid in time. Under such circumstances there was admittedly some delay on account of payment of tax for the years ending 30th April, 1986 and 30th April, 1987, with the result that a total sum aggregating Rs. 2,04,882.78 accumulated by way of interest. The applicant, however, cleared the dues in six equal monthly instalments in terms of the order of the Commercial Tax Officer. In spite of such payment the declaration forms, as prayed for by the applicant, were not issued by the Commercial Tax Officer concerned on the ground that assessed interest for the years 1983-84 and 1984-85 amounting to Rs. 16,944 and Rs. 91,629.59, respectively, still remained to be paid and there was no order staying realisation of such interest dues. Against these demands the applicant already filed appeals on 24th September, 1987 and 7th April, 1988, before the Assistant Commissioner of Commercial Taxes. On the interim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the higher Revenue authorities. It is also for decision whether sales tax clearance certificate can be refused to the applicant in the circumstances of the case. 7.. The main argument of Mr. Bose, the learned advocate for the applicant, is that the dues relate to assessed interest, which has been challenged in an appropriate forum, and that there is no provision in the statute to withhold declaration forms for non-payment of such dues. In support of his contention he referred to rule 27AA of the Bengal Sales Tax Rules, 1941 (hereinafter called "the Rules"), which governs the issue of declaration forms. He indicated that the rule provides for withholding of such forms where there is default in payment before assessment/ determination, as, after the dues are assessed/determined, there are specific measures available for ensuring payment of such dues. According to him, determination of interest in this case was made in terms of subsection (2h) of section 11 of the Act which was in the nature of assessment and that a demand notice in form VII-L was issued after such determination. In his opinion, it is open to the respondents to ensure realisation of these assessed dues thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me payable under the said subsection (1) of section 10A after the date of the application. (c) If the applicant for declaration forms has at the time of making the application defaulted in furnishing any return or returns under the Act, or any return or returns under the West Bengal Sales Tax Act, 1954 (West Bengal Act 4 of 1954) or the Central Sales Tax Act, 1956 (74 of 1956), together with the receipted challan or challans showing payment of the tax, surcharge and additional surcharge due from him according to such return or returns, for the furnishing of which the prescribed date or dates have already expired, or has failed to comply with the provisions of rule 36A, the Commercial Tax Officer shall withhold the issue of declaration forms to him until such time as he furnishes- .................. .................. Provided further that in a case coming under clause (bb) or clause (c), the Commercial Tax Officer may, instead of withholding declaration forms, issue such forms in such numbers and subject to such conditions and restrictions as he may consider reasonable, to an applicant, if in the opinion of the Commercial Tax Officer it is desirable in the interest of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its character has changed after it has been determined under section 11(2h) of the Act and appeals/revisions have been filed against such determination. There is no authority given to the Commercial Tax Officer for withholding declaration forms on the ground of non-payment of assessed dues. We are, therefore, in agreement with the arguments advanced by Mr. Bose. Such being the position, the Commercial Tax Officer exceeded the bounds of authority when he withheld declaration forms in this case, as he exercised his power on extraneous considerations. 11.. The next point urged by the applicant is that his prayer for stay of realisation of the dues in respect of interest was not being entertained in view of the amendments made in rule 75 of the Rules. The applicant claims that at the relevant time when the appeal was filed the usual practice was to apply for a stay at the time of its final hearing. Mr. Bose argued that the new rule, which requires that the memorandum of appeal and the application for stay should be filed simultaneously, came into effect on the 6th of January, 1989 and could not possibly apply retrospectively to this case, as the appeals were filed long before the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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