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1995 DIGILAW 77 (CAL)

BINOD KUMAR KOYAL v. C. T. O. , SALKIA CHARGE

1995-03-14

L.N.RAY, P.R.BALASUBRAMANIAN

body1995
JUDGMENT The case is taken up for final hearing. Heard arguments by Mr. M. L. Bhattacharjee, learned advocate for the applicant and Mr. J. K. Goswami, learned State Representative appearing for the respondents. This is an application under section 8 of the West Bengal Taxation Tribunal Act, 1987 and is a substitute for one under article 226/227 of the Constitution of India in terms of the provisions of the Act of 1987 read with article 323B of the Constitution. The subject-matter is within the exclusive jurisdiction of this Tribunal, to which the jurisdiction of the High Court has been barred. Applicant Binod Kumar Koyal is a partner of M/s. Arun Plastics, which was a registered dealer till May 5, 1992 when the registration was cancelled. On September 22, 1992, an application was made by the applicant for issuance of 60 numbers of declaration forms covering purchases during the periods of 1988-89, 1989-90, 1990-91 and partly during 1991-92, namely, up to June 25, 1991. That application was rejected on September 22, 1992 itself by the Commercial Tax Officer on the ground that the applicant ceased to be a registered dealer. A revision was preferred before the appropriate Assistant Commissioner, who by his order dated January 25, 1993 upheld the order of rejection passed by the Commercial Tax Officer, on the ground that in view of rule 27A(4) of the Bengal Sales Tax Rules, 1941, it would be opposed to the public policy to issue declaration forms after a dealer's registration has been cancelled, even though declaration forms might be required for his purchases prior to the date of cancellation of registration certificate. Another revision was preferred before the Additional Commissioner under the provisions of the Bengal Finance (Sales Tax) Act, 1941. The second revision was also rejected by order dated August 3, 1994, having regard to rule 27AA and rule 27A(4). Hence this application. It is contended on behalf of the applicant that rule 27AA and 27A(4) should be interpreted to mean that a registered dealer should continue to be treated as such up to the date of cancellation of registration certificate and therefore rule 27A(4) requires return of unused declaration forms which cannot be used for purchases up to the date of cancellation. Mr. Mr. Bhattacharjee appearing for the applicant also submitted that the expression, "a registered dealer" used in rule 27AA(1) includes a registered dealer whose registration certificate has been cancelled but only in respect of purchases up to the date of cancellation of his registration certificate. The case of the respondents in the affidavit-in-opposition is basically a defence of the orders of the authorities below rejecting the prayer for issuance of declaration forms. An affidavit-in-reply was filed by the applicant denying the allegations made in the affidavit-in-opposition. Mr. J. K. Goswami, learned State Representative appearing for respondents, submits that rule 27AA(1) requires that only a registered dealer can apply for declaration forms and under rule 27A(4), a dealer is required to return unused declaration forms after cancellation of his registration certificate. Therefore, Mr. Goswami argues that the applicant was not eligible to make an application for declaration forms after cancellation of his registration certificate. Mr. M. L. Bhattacharjee, learned advocate for the applicant, relies on an unreported decision dated August 30, 1971, by a learned Judge of the High Court at Calcutta in Civil Rule No. 982 of 1969. After hearing both sides we are inclined to hold that a registered dealer whose registration certificate has been cancelled, may be entitled to declaration forms which may be required for his purchases during the period prior to the date of cancellation of his registration certificate. Rule 27A(4), according to us, contemplates return of unused declaration forms, where the dealer no more requires to use declaration forms for purchases prior to the date of cancellation of registration certificate. Similarly, under rule 27AA(1) a registered dealer, whose registration certificate has been cancelled, is eligible to apply for declaration forms to cover his purchases prior to the date of cancellation of his registration certificate. In our opinion, the object of the provisions for issuance and use of declaration forms is to allow concessional rate of tax to registered dealers at the time of purchases of raw materials for their manufacturing activities. The purpose of rule 27(4) is to ensure that the declaration forms obtained by a registered dealer prior to cancellation of his registration certificate is not misused in respect of purchases made after the cancellation of the registration certificate. As Mr. The purpose of rule 27(4) is to ensure that the declaration forms obtained by a registered dealer prior to cancellation of his registration certificate is not misused in respect of purchases made after the cancellation of the registration certificate. As Mr. Bhattacharjee has argued, the applicant is being even now treated as a registered dealer for the purpose of assessment of tax for the periods 1988-89, 1989-90, 1990-91 and 1991-92 till the date of cancellation of registration certificate. For the first of the abovementioned periods there was regular assessment under section 11(1) of the 1941 Act against which an appeal preferred by the applicant is pending. As regards the other periods up to the date of cancellation of registration certificate, the assessments have been treated as deemed assessments under section 11E(1) of the 1941 Act. Therefore, Mr. Bhattacharjee rightly submits that for the purposes of all these assessments when the applicant is being treated as a registered dealer, although his registration certificate has been cancelled with effect from May 5, 1992, there is no point in refusing to issue declaration forms to cover his purchases for the aforesaid periods. We are unable to accept the contention of learned State Representative that the issuance of declaration forms and assessment are separate proceedings and therefore merely because applicant has been treated as a registered dealer for the purposes of assessment, declaration forms should also be issued. There is no dispute before us that the applicant has paid up all taxes according to returns submitted by him. In the result, the application is allowed. The impugned orders passed by the Commercial Tax Officer. Assistant Commissioner and the Additional Commissioner are set aside. The Commercial Tax Officer or the appropriate officer in his place, as the case may be, is directed to reconsider the application dated September 22, 1992, filed by the applicant treating him to be a registered dealer for the purpose of his purchases up to May 5, 1992. The applicant will produce all necessary papers and evidence and also requisitions from his selling dealers asking for declaration forms for the purchases, before the Commercial Tax Officer or the appropriate officer in his place. The applicant will produce all necessary papers and evidence and also requisitions from his selling dealers asking for declaration forms for the purchases, before the Commercial Tax Officer or the appropriate officer in his place. The Commercial Tax Officer or the appropriate officer, as the case may be, is directed to give the applicant an opportunity of being heard and dispose of the said application dated September 22, 1992, in accordance with law with a reasoned order within a period of six weeks from this day. The application is thus disposed of without any order for costs. Application allowed.