KISHORILAL CHOWDHURY v. COMMERCIAL TAX OFFICER — 1987 DIGILAW 205 (CAL)

JUDGMENT BHAGABATI PRASAD BANERJEE, J. - This writ petition is directed against an action of the Commercial Tax Officer for withholding the issue of declaration forms and permits required for the purpose importing the goods under the provisions of the bengal Finance (Sales Tax) Act, 1941. By the order dated June 1, 1987, the Commercial Tax Officer was directed to dispose of the application of the petitioner for issuance of the declaration forms as well as the permits in accordance with law and it was directed that the Commercial Tax Officer shall give the petitioner an opportunity of being heard and pass a speaking order. It appears that in terms of the order passed by this Court the Commercial Tax Officer by the order dated June 10, 1987, considered the matter and rejected the application for declaration forms holding on the ground that : "The dealer imported goods from outside the State of West Bengal for the purpose of resale of those imported goods in West Bengal, for which the permits were issued to the dealer from time to time. But it appears from the report of investigation and other relevant records that the dealer has disposed of the imported goods from outside the State of West Bengal which are meant for the purpose of resale. But it appears that the dealer disposed of those imported goods (for which C form has prayed for) by way of stock transfer to the agents outside the State of West Bengal for which no contractual documentary evidence could be produce by the dealer. The dealer has, therefore, acted in contravention of rule 27AA of the Bengal Sales Tax Rules 1941, read with rule 4(2) of the Central Sales Tax (West Bengal) Rules, 1958." The Commercial Tax Officer's power to withhold the declaration form is laid down under the provisions of rule 27AA of the Bengal Sales Tax Rules, 1941. One of the grounds for withholding the issue of declaration form is that the Commercial Tax Officer is satisfied that the issuance of the declaration form was not bona fide used by dealer or that the dealer does not require the forms applied for in the instant case. One of the grounds for withholding the issue of declaration form is that the Commercial Tax Officer is satisfied that the issuance of the declaration form was not bona fide used by dealer or that the dealer does not require the forms applied for in the instant case. The petitioner has filed returns with the admitted amount of tax dues and one of the conditions for withholding the declaration form is that if the petitioner is found to have committed default in the matter of submission of returns with the amount of tax dues at the time of making the application for declaration forms. In the instant case what has happened is that the Commercial Tax Officer while issuing the declaration forms held an enquiry about the goods imported by the petitioner of the basis of permits and came to the tentative finding on the interim report of investigation that the dealer could not satisfactorily explain that the said goods have been sold within the State of West Bengal and paid sales tax thereon and on the contrary the officer was of the view that the said goods were sent outside West Bengal by way of stock transfer. The question whether such transfer was bona fide and/or it was a sham transaction can only be gone into at the time of regular assessments. In my view inasmuch as the powers of the Commercial Tax Officer to withhold issue of declaration forms which are prescribed under rule 27AA of the said Rules, several grounds have been specifically mentioned, the Commercial Tax Officer cannot exercise any power which is not expressly conferred under the rules in this behalf. Further, the Commercial Tax Officer in his order has not pointed out under which clause and/or grounds mentioned in rule 27AA of the said Rules, the said declaration forms had been withheld. Simply saying that the dealer has contravened the provisions of rule 27AA, in my view, does not fulfil sufficieny requirement and cannot be said to be a speaking order. There are several grounds on which the Commercial Tax Officer could withhold the issue of the declaration forms. Simply saying that the dealer has contravened the provisions of rule 27AA, in my view, does not fulfil sufficieny requirement and cannot be said to be a speaking order. There are several grounds on which the Commercial Tax Officer could withhold the issue of the declaration forms. Under the provisions of the said Rules, if the dealer is found not to have contravened those grounds and on the contrary to have fulfilled the conditions laid down therein, in that event the Commercial Tax officer is under a statutory obligation and duty to issue such declaration forms. In my view, the Commercial Tax Officer had proceeded in the matter and rejected the prayer for issue of the declaration forms on the basis of grounds and/or considerations which, in my view, are extraneous and the Commercial Tax Officer had not considered the fact that he was discharging a statutory and quasi-judicial power and his action must conform with the requirement of the statute. Accordingly, the order passed by the Commercial Tax Officer on June 10, 1987, is set aside and the matter is remanded back to the Commercial Tax Officer with the direction to dispose of the application for issue of declaration forms in the light of the observations made above in accordance with law. Further, the Commercial Tax Officer shall dispose of the application for grant of permit in form "F" when the petitioner will produce necessary documents for that purpose. It also appears that the Commercial Tax Officer has not disclosed any grounds for withholding such permit except alleging that the dealer could not produce any documentary evidence in support of any contractual obligation between the principal and agent. It may be pointed out that the records and documents in respect of the particular dealer are lying seized with the Central Section of the Commercial Tax Office and as such the Commercial Tax Officer ought not to have rejected the same on the ground of non-production of the same by the dealer which were not with him. It may be pointed out that the records and documents in respect of the particular dealer are lying seized with the Central Section of the Commercial Tax Office and as such the Commercial Tax Officer ought not to have rejected the same on the ground of non-production of the same by the dealer which were not with him. Under the circumstances the Commercial Tax Officer is at liberty to requisition such documents from the custody of the Central Section or in the alternative should go to the Central Section after giving notice to the petitioner wherein the Commercial Tax Officer should direct the petitioner to find out from the seized records the relevant documents and papers which may be required for the purpose of issue of permits, in accordance with law. Accordingly, the Commercial Tax Officer is directed to dispose of the matter in the light of the observations made above within two weeks from today. Before I part with this matter, it appears to me that the purchases or the imports of the goods by the petitioner had not been disputed but the only thing is that the documents have been seized by the Commercial Tax Office and until and unless a proceeding is initiated on the basis of such seized documents, the Commercial Tax Officer shall not take into consideration the fact that since the seizure has been made the dealer should be treated with suspicion. This application is disposed of accordingly. All parties to act on a signed copy of this order on the usual undertaking. Application disposed of accordingly.