State Taxation Tribunal - West Bengal
Haroon M. Adam vs State Of West Bengal And Ors. on 27 March, 2002
Equivalent citations: [2006]146STC588(TRIBUNAL)
JUDGMENT
B.K. Lala, Judicial Member and A. Deb, Technical Member
1. This is an application Under Section 8 of the West Bengal Taxation Tribunal Act, 1987 praying for a declaration that the application of rate of tax by active operation for the imported sugar having been declared as goods of special importance and by delegated legislation is not permissible under law and is liable to be struck down and further for setting aside the impugned assessment order dated December 30, 1999 and December 10, 2001 passed by the respondent No. 4 and further levy of tax on foreign made sugar imported from other States is discriminatory and violative of Article 304(a) of the Constitution of India.
2. It is submitted on behalf of the petitioner that rate of tax fixed retrospectively from May 1, 1995 by inserting a new serial No. 70A of Schedule IV being illegal was challenged before the honourable High Court See [2002] 127 STC 23 (Cal) (Prime Impex Limited v. Assistant Commissioner of Commercial Taxes).-Ed against the order of this Tribunal. It was held by the honourable High Court that retrospective operation from May 1, 1995 was not within the competence of the State Legislature. The insertion of serial No. 70A was held to be invalid and, therefore, the serial No. 70A of Schedule IV was omitted with retrospective effect from May 1, 1995 by the West Bengal Finance Act, 2001 (West Bengal Act 16 of 2001). As a result of such omission sugar other than sugar manufactured or made in India from serial No. 70A of the said Schedule remained unspecified in any of the Schedules of the Sales Tax Act with effect from May 1, 1995. Hence, according to the learned lawyer for the petitioner, such retrospective omission of sugar was arbitrary, unreasonable and violative of Article 14 of the Constitution of India. The point of levy of tax thus was not ascertainable clearly and definitely for the period from May 1, 1995 to March 31, 1999 inasmuch as, the serial No. 137 of Schedule IV came into effect on and from April 1, 1999. The assessment for four quarters ending on March 31, 1999 was erroneous and misconceived in view of the judgment delivered by the honourable High Court on March 29, 2000 (Prime Impex Limited v. Assistant Commissioner of Commercial Taxes).
3. Moreover, levy of tax on sales of foreign made sugar from other States in terms of entry 137 of Part A of Schedule IV of the Sales Tax Act is illegal and violative of Article 304(a) of the Constitution of India. The respondent No. 3 by his appellate order, therefore, should have quashed the order of assessment made by the respondent No. 4 though he has set aside the order of assessment by his order dated January 3, 2001. His order of remand for holding fresh assessment was fully illegal. The orders dated December 30, 1999 and December 10, 2001 are, therefore, liable to be quashed.
4. The learned State Representative submits that the omission of serial No. 70A from Schedule IV of the Act, 1994 was made in compliance of the order of the honourable High Court. The legal complication, if any, so has been cropped up has to be decided initially by the assessing officer and thereafter, by the next higher forum in terms of the procedural laws and Rules as formulated under the Act. The petitioner ought to have completed all the forums before coming A to this Tribunal. In the alternative, legal complications by such omission, if so occurred, could have been agitated before the honourable Supreme Court or any other forum. Moreover, the order of assessment was passed relating to the period of assessment for the four quarters ending on March 31, 2000 and there was no question of any complications in the matter of application of the existing provisions of law particularly when the serial No. 137 of Schedule IV has come into force on and from April 1, 1999. The assessment order dated December 10, 2001 therefore, does not suffer from any legal infirmity. Similarly, the appellate order dated January 3, 2001 relating to the period four quarters ending March 31, 1999 also cannot be said to be illegal since the appellate authority directed the learned C.T.O. to hold fresh assessment in the light of the judgment of the honourable High Court reported in [2002] 127 STC 23 (Cal) : (2001) 37 STA 73 (Cal) (Prime Index Limited v. Assistant Commissioner of Commercial Taxes). The instant application, therefore, is not entertainable in law at this stage being premature.
5. We have taken into consideration the submissions of both the sides and the relevant provisions of law. It appears to us that the omission of serial No. 70A from Schedule IV with retrospective effect from May 1, 1995 in compliance of the judgment of the honourable High Court till insertion of serial No. 137 of Schedule IV with effect from April 1, 1999 has created source of controversy in the matter of fixing the rate of tax. But so far the instant impugned assessment order for the four quarters ending March 31, 2000 is concerned we are of opinion that the law is clear on this point. Even if, there is any controversy, the matter may be agitated before the lower forum and thereafter the appellate and revisional forum in terms of the provisions of the Act, 1994. There is no justification at this stage in the instant case to move before this Tribunal directly against the order of such assessment for the four quarters ending March 31, 2000.
6. Regarding the appellate order dated January 3, 2001 in respect of the period for four quarters ending on March 31, 1999 the appellate authority has directed the C.T.O. for holding fresh assessment in the light of the judgment of the honourable High Court and the order of assessment accordingly was set aside. The direction in our opinion was properly given by the appellate authority for the four quarters ending on March 31, 1999 in view of the judgment of the honourable High Court and omission of the serial No. 70A of Schedule IV with retrospective effect from May 1, 1995. It may, in such circumstances, also be pointed out that two causes of action have been joined together in the instant application which was against the provisions of the West Bengal Taxation Tribunal Act. Two separate prayers should have been made for setting aside the order of the appellate authority dated January 3, 2001 and the same time, that of the assessing authority dated December 10, 2001. This technical ground also is sufficient for not admitting the instant application for hearing. However, even leaving aside such technical defect we are of opinion that at this stage the instant application is not entertainable for the reasons discussed above.
7. We, therefore, hold that the instant application cannot be admitted for the reasons--firstly, the assessment order for four quarters ending March 31, 2000 does not come within the period in between May 1, 1995 to March 31, 1999, i.e., from retrospective omission of serial No. 70A and insertion of serial No. 137 of Schedule IV respectively. Secondly, the appellate order dated January 3, 2001 relating to the period for four quarters ending on March 31, 1999 is also not against the law since it was remanded for holding fresh assessment in view of the judgment of the honourable High Court; and finally, two causes of action have been joined together.
8. The application being not admitted at this stage for the reasons stated above is dismissed summarily without costs. Liberty is, however, given to the petitioner to move before this Tribunal at the appropriate stage after agitating the matter before the appellate and revisional authorities, if necessary. It is also made clear that the application since has not been decided on merits all points of disputes are left open for proper adjudication.
9. The order is ready and delivered in open court. The application has been disposed of without costs.