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TMI Blog1999 (9) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of black tea. The-petitioners are also liable to file returns of income-tax and sale as per the provisions of the Assam Agricultural Income-tax Act, 1939, Central Sales Tax Act, 1956, and the Assam Sales Tax Act, 1947, as amended up to date and the rules framed thereunder. According to them, they have paid taxes for the assessment years 1991 to 1995. They are also clearing their income-tax as assessed from time to time. The tea manufactured in their tea estates is despatched to various places in and outside Assam. The tax clearance certificates annexed with the writ petitions also show that there was no outstanding payable by them on account of taxes. The tea produced by them in the course of transit has to pass through various check posts (tax) set up under section 44B of the 1947 Act and the Rules framed thereunder. During the course of the last 20 years, the tea produced by them was allowed to be transported through the check posts after filing of a declaration as per the provisions of the 1947 Act. No other document was ever insisted on by the officers at the check posts for allowing passage of tea. But since January, 1994, the officials at Khanapara, Srirampur, Biswanath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents. The restriction imposed by means of section 46 of the Act of 1993 (Assam General Sales Tax Act) constitutes unreasonable restriction on the petitioners' freedom to carry on their occupation, trade or business. Hence, the petitioners filed these writ petitions seeking the reliefs indicated at the very outset of the judgment. It would appear that the respondent-State that has not filed any affidavit-in-opposition in the writ petitions. However, I have heard Dr. A. K. Saraf assisted by Mr. S. K. Kejriwal and Mrs. S. K. Kejriwal for the petitioners, and Mr. H. N. Sarma, learned Senior Government Advocate, Assam, for the respondents. Dr. Saraf at the very inception of his arguments pointed out that the similar question relating to tax clearance certificate under the Assam Agricultural Income-tax Act came, up for consideration before this court in Civil Rule No. 2000 of 1994, and the learned single judge after consideration of the materials on record and various provisions of the concerned Act allowed the writ petition. The copy of the judgment placed before the court shows that the learned single judge made the following observation in the said judgment : "6. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on but to accept the decision rendered by the learned single judge in Civil Rule No. 2000 of 1994. So far as the reliefs claimed under the Assam General Sales Tax Act, 1993, are concerned, it would be appropriate to quote the relevant provisions in order to determine as to whether the provisions of section 46 and rule 43(7)(j) of the Rules of 1993 in any manner impose restrictions on the movement of goods and whether the writ petitioners are required to produce sales tax clearance certificates before the officials at different check posts for movement of tea within and without the State of Assam. Section 46(4) reads as follows : "46. (4) At every check-post or barrier mentioned in sub-section (3) or at any other place when so required by any officer empowered in this behalf, the driver or any other person-in-charge of any goods vehicle or boat shall stop the goods vehicle or boat, as the case may be, and keep stationery as long as may reasonably be necessary, and allow the officer-incharge of the check post or barrier or the officer empowered as aforesaid to examine the contents in the goods vehicle or boat and inspect all documents relating to the goods carried which are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the construction of section 37(2) of the Haryana General Sales Tax Act came to the conclusion that the language of the section referred to the documents to be relied upon is in alternatives and, as such, production of any of the documents mentioned in the Act would be sufficient enough on the part of the carrier to discharge his obligations under the said section. Section 37(2) of the Haryana General Sales Tax Act runs as "a goods carrier record, trip sheet or log book". Similarly, in the Assam Act also, sub-section (7) provides for "bills of sale, or delivery notes, or such other documents as may be prescribed". Therefore, the documents specifically mentioned in sub-section (7) and the documents which are to be prescribed in the rules are to be construed in alternatives. The officer-in-charge of the check posts or barriers, therefore, cannot insist for more than one of such documents. Dr. Saraf also argued that the Rules framed to give effect to the provisions of section 46(4), (5) and (7) are in violation of the substantive provisions of the Act and, as such, it is not sustainable. Rule 43(7)(j) reads as follows : "43. (7)(j) For the purpose of section 46, the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) above shows that the certificate of payment of tax has to be produced while carrying goods across the check posts or barriers as provided in sub-rule (5) of rule 43. This provision inserted in 1996 is also blatantly opposed to the provision of subsection (7) of section 46. Therefore, the provision in sub-rule (2) of rule 33 and in sub-rule (7)(j) of rule 43 are redundant for the purpose of section 46(4) and (5). The provision being contrary to what has been contemplated in the substantive provisions of section 46 cannot be insisted upon. Although the provision in section 46(4) clearly indicates the intention of the Legislature to authorise the officer-in-charge of a check post or barrier to inspect the documents for the purpose of his satisfaction whether tax has been paid or not, yet the provision is inadequate to give effect to the aforesaid intention. In my considered opinion unless sub-section (7) of section 46 is suitably amended and the rules are framed thereunder, neither the Government nor any of his officer is entitled to insist for the sales tax clearance certificates. Simultaneously, because of the language of sub-section (7), it would not be available to the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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