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TMI Blog1996 (3) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... e city through a few poor boys/hawkers . The wholesalers gave them credit memos, for such credit purchases. The business was being run from a road-side verandah of premises No. 21, Radhanath Bose Lane, Calcutta-6, which was allowed by the owner free of charge to be used for the purpose. Respondent No. 7, ITC Ltd., is a stockist within the definition of the term given in section 2(i) of 1994 Act. That company is not only the manufacturer of the luxuries in question, but it also brings the same into West Bengal. As applicants are not stockists , they are not liable to pay luxury tax under 1994 Act. On January 21, 1995 a team of four tax officials led by respondent No. 1 seized the stock of cigarettes and smoking mixtures from the place of business of applicants. Applicant No. 1 had prepared a rough sheet of account on the same day. On being asked by respondent No. 1, he explained it from which it would appear that different brands of cigarettes manufactured by ITC Ltd., were given by applicants to different boys/hawkers for selling the same in the retail market . There were certain undistributed stock which was intended to be handed over to certain other boys/ hawkers for sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But, the first applicant was served with a notice under section 9(1)/9(2) of 1994 Act to appear before respondent No. 1 on March 28, 1995 and to produce accounts for the purpose of assessment. It was said in that notice that though the first applicant was liable to pay luxury tax, he had failed to obtain a licence, and hence he should show cause why penalty under section 9 should not be imposed. On March 28, 1995 the first applicant appeared before respondent No. 1 with a letter informing that he should stay the proceedings, as the former was going to move this Tribunal. Despite that, the first respondent assessed the taxable turnover of the applicants as Rs. 2,10,000, levied luxury tax of Rs. 21,000 and served a notice of demand dated March 28, 1995 on the first applicant by hand fixing April 20, 1995 as the date by which the tax should be deposited. Such assessments of turnover and tax are termed as illegal, arbitrary, mala fide and without jurisdiction . Applicants claim that they are merely wholesale dealers, and are not required to obtain licence. Thus, the seizure, assessment and demand of tax and the notice for imposition of penalty under section 9(1)/9(2) are challenged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct whether the seized goods were brought from outside West Bengal or purchased in West Bengal. In answer to queries the first applicant wrote: stock of cigarettes as on January 21, 1995 without any paper or documents imported from outside West Bengal . He was not asked to write any other thing. The first applicant was asked to appear on March 28, 1995 along with books of account and documents for the purpose of assessment, and it was made clear that no adjournment would be given. On March 28, 1995 he appeared and prayed for an adjournment which was not granted, and the assessment was made in his presence and immediately notice of demand was served on him. The taxable value of the goods was assessed at Rs. 2,10,000. All allegations against the actions taken have been denied by respondents 1 to 6. 5.. Applicants have used an affidavit-in-reply denying the averments in the affidavit-in-opposition and reiterating the case made out in the main application. 6.. The seizure of January 21, 1995 has been challenged by Mrs. Chandrima Bhattacharya, learned advocate for the applicants, on several grounds. One of the grounds is grant of no seizure receipt. The other grounds are that (i) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of non-maintainability of writ petition where efficacious alternative remedy has not been availed of Mr. Gupta relied on the cases of Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); AIR 1983 SC 603 and Assistant Collector of Central Excise v. Dunlop India Ltd. [1985] 58 Comp Cas 145; AIR 1985 SC 330. Mrs. Bhattacharya, appearing for the applicants, submitted that the applicants could not prefer an appeal without being determined as a stockist, because a stockist alone can prefer an appeal. 8.. The scheme of 1994 Act is like this. Section 4, the charging provision, requires a stockist, as defined in section 2(i), to pay a luxury tax on his turnover of stock of luxuries. There is no dispute that the goods seized are luxuries. Nor is there any dispute that the seizure actually took place on January 21, 1995 and the stock of goods written by the first applicant himself in the sheet of paper, annexure A, were seized from his custody. Section 6(1) requires a stockist to obtain a licence, if he is liable to pay luxury tax, and in default, a penalty may be imposed under section 6(2). Section 9 deals with assessment of tax. Section 9(1) relates to cases whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any order either on his own motion or upon application. 9.. Mrs. Bhattacharya submitted on behalf of the applicants that the formation of reasons to believe under section 13(1) is subject to judicial review. We have no manner of doubt about this principle. But this Tribunal being a substitute of High Court in the specified field and exercising jurisdiction under articles 226 and 227 of the Constitution of India read with section 8 of the West Bengal Taxation Tribunal Act, 1987, does not generally decide questions of fact without findings rendered by the appropriate statutory authorities below. Mr. Gupta, for the contesting respondents, rightly relied on the two decisions (already mentioned) on this point. An assessment of tax does not take place without an explicit or implicit determination of the applicant s status as a stockist. Section 9(1) refers to assessment of a licensed stockist, while section 9(2) relates to that of an unlicensed stockist. An appeal by any stockist lies against an assessment of tax, etc. Appeal is an efficacious remedy against assessment of tax, determination of interest and order of penalty under section 9. In the instant case, no penalty has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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