9911796707
TMI Blog2002 (5) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... er-State trade or commerce. During the assessment period, which is under challenge, the consignment of dry chillies was brought into West Bengal by the applicant on the strength of permits obtained from sales tax authorities as chillies is an item specified under section 4A of the Bengal Finance (Sales Tax) Act, 1941, hereinafter referred to as "the said Act". The permit in each case was obtained on the basis of a proforma. As a result in some cases the quantity received varied from the quantity which appeared in the final invoice. During the said period which according to the English Calendar ended on June 11, 1983, the applicant received from his outside principals dry chillies which were brought into West Bengal on the strength of permits. The petitioner's case is that quantity of goods brought in West Bengal was the gross weight of the consignment received and therefore included the weight of the gunny bags in which dry chillies are filled before the weighment. The goods so brought into West Bengal were sold by the applicant according to the weight taken at the time of such sale. The net weight of dry chillies sold during the said period stood at 8726.94225 quintals. The diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G.C. Mookerji, as we have already mentioned, has addressed this Bench on four points which, according to him, requires adjudication of this Tribunal. In this application the amending Act amending entry 6 of Schedule I to the Bengal Finance (Sales Tax) Act, 1941 has been challenged. Now let us see what was the amending Act. Under item No. 6 of Schedule I the amendment which was introduced was "other than dry chillies" and it was further amended that such insertion shall be deemed to have been there always which means that the amendment like "other than dry chillies" shall be deemed to have been there since inception. This amendment was brought with retrospective effect by West Bengal Act 8 of 1983 under section 4(3) of the Act. Therefore, we find that the expression "other than dry chillies" was not included in the original Act but the words "other than dry chillies" were included by way of amendment and it was given retrospective effect. Mr. Mookerji contends that dry chillies are vegetable and it should find place with other categories of vegetable and the amendment by which dry chillies were excluded from other types of vegetable was illegal and arbitrary. The dictionary (Oxfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive amendment is violative of the Constitution of India and in this connection he has referred to the decision of the Calcutta High Court reported in [1973] 32 STC 368 (Shew Bhagwan Goenka v. Commercial Tax Officer). Here Calcutta High Court found that retrospective amendment imposed an unreasonable restriction upon a person's fundamental rights and so struck down the amendment. But there is no dispute that the Legislature has the power to make an amendment. Mr. Mookerji also submitted that the Legislature has the competence to make amendment, but the question, according to him, is whether retrospective amendment has in this case violated the Constitution. Mr. Mookerji contends that effect of retrospective operation of such an amendment would be to impose an unexpected liability in respect of transactions which when took place were not subject to any charge or liability under the Act. So, according to him, such retrospective operation was violative of article 19 of the Constitution. In a case reported in [1985] 58 STC 1 (SC) (D. Cawasji Co. v. State of Mysore) it was observed that it may be open to the Legislature to impose a levy of tax at a higher rate with prospective ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Bombay High Court reported in [1994] 209 ITR 660 (Chamber of Income-tax Consultants v. Central Board of Direct Taxes). Mr. Mookerji contends that the age-old practice should not be given a good-bye by introducing an amendment. But in taxation matters res judicata cannot have any application because each assessment year is a unit which decided in one year may not apply in the following year. The mere fact that the petitioner was enjoying the exemption so long cannot be a ground to allow him such exemption for long. He would have enjoyed such exemption had there been no amendment as in the present case. But after the amendment dry chillies has been made taxable and, therefore, the petitioner cannot say that as he was enjoying the exemption, it should continue for long. On this point Mr. Mookerji has referred to a decision reported in [1992] 193 ITR 321 (SC) (Redhasoami Satsang v. Commissioner of Income-tax) which was followed by this Tribunal in its judgment reported in [2002] 128 STC 189; (2000) 36 STA 44 (Smithkline Beecham Consumer Healthcare Ltd. v. Deputy Commissioner, Commercial Taxes). It was held that in a taxing statute when certain products are illustrated in definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowable to the purchasers. Mr. Mookerji further contends that there is no definition of cash discount in the concerned State and in that view of the matter merely because the discount was not shown in the bill the permissible discount allowed to the purchasers cannot be disallowed. Now these are all questions of fact and this writ court cannot go into the question of fact. However, on perusal of the judgments under consideration before us we find that there was a shortage of goods which was admitted by the petitioner. Before the Board a separate statement was submitted by the learned advocate for the petitioner which disclosed the total quantity of dried chillies imported on the basis of permits as 9309.88 quintals and the net sale in weight has been admitted at 8894.4945 quintals. The Board observed that in the aforesaid statement the petitioner has tried to justify the difference by excluding 359.17 quintals being weight of the containers and 223.76 quintals as deduction on account of dhalta. Therefore, the assessing authority as well as the appellate authority gave due consideration to the age-old practice of dhalta and it cannot be said that the said authority acted illegally ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
