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1996 DIGILAW 77 (PAT)

M. R. Foods Private Limited v. State of Bihar

1996-02-02

B.N.AGRAWAL, S.K.HOMCHAUDHURI

body1996
Order Heard the parties. 2. This application has been filed for giving direction to the Deputy Commissioner of Commercial Taxes, East Circle, Ranchi, respondent no. 4, for issuing Form XXVIII-B under the provisions of the Bihar Finance Act, 1981 (hereinafter to be referred to as 'Act') and Bihar Sales Tax. Rules, 1983 (hereinafter to be referred to as 'rules') in favour of the petitioner-company. 3. The petitioner claimed that he filed an application before respondent no. 4 for issuance of Form XXVIII-B in its favour, upon which endorsement was made by office clerk of respondent no.4 but, subsequently, the same was returned to the petitioner. On the last occasion, that is, on 24.1.1996 when this controversy was raised before us, without deciding the same we directed the petitioner to make over the said application to learned Government Advocate for forwarding the same to respondent no. 4. Pursuant to our direction, the said application was made over to learned Government Advocate, who forwarded the same to respondent no. 4. We directed respondent no. 4 to pass appropriate order on the said application filed by the petitioner in accordance with law. Pursuant to our direction, respondent no. 4 passed order on 29.1.1996, contained in annexure 'C' to supplementary counter affidavit, filed on behalf of respondent nos. 3 and 4, whereby he rejected the prayer made on behalf of the petitioner for issuance of Form XXVIII-B. 4. From the stand of the State and the order, contained in annexure 'C' it appears that prayer for issuance of Form XXVIII-B made on behalf of the petitioner has been refused on two grounds; Firstly, on the ground that there was a criminal prosecution launchad against the petitioner and its officers alleging therein that they were fabricating Form XXVIII-B and other forms by putting their seals, though the Department did not issue the said forms. So far this matter is concerned, question is whather on this ground issuance of fresh• Form XXVIII-B can be refused by the Department or not. Learned Government Advocate could not point out any provision either in the Act or Rules excepting Rule 45(a) (ii) of the Rules, which lays down that the prescribed authority may refuse to issue Form XXVIII-B, if it is satisfied that the applicant has not bonafidely made use of such forms previously issued in his favour. Learned Government Advocate could not point out any provision either in the Act or Rules excepting Rule 45(a) (ii) of the Rules, which lays down that the prescribed authority may refuse to issue Form XXVIII-B, if it is satisfied that the applicant has not bonafidely made use of such forms previously issued in his favour. He must further be satisfied that the applicant bonafidely requires such Forms in such numbers as applied for. On the basis of this very Rule learned Government Advocate submitted that if the dealer was in habit of fabricating Forms XXVIII-B purported to have been issued by the Department, then it goes without saying that there was no bonafide use of such forms previously issued in favour of the petitioner. Even from the reading of the first information report, it does not appear that any allegation has been made that the petitioner has fabricated Forms XXVIII-B earlier issued in its favour on 15.9.1995. Only allegation against the petitioner is that it was in habit of fabricating Form XXVIII-B. In our view, on this ground it cannot be said that the petitioner was not bonafide using the earlier Forms XXVIII-B, issued in its favour on 15.9.1995 specially in view of the fact that the petitioner has given details of use of the aforesaid forms along with the petition for issuance of new Form XXVIII-B. This being the position, we are of the view that on this ground, the authority was not justified in refusing issuance of Form XXVIII-B in favour of the petitioner. 5. Second ground of refusal is that details in relation to use of the earlier Forms XXVIII-B issued on 15.9.1995 were not furnished by the dealer, therefore, under proviso to sub-rule (3) of Rule 42 of the Rules the Department was justified in not issuing new Forms XXVIII-B in favour of the petitioner as it has not rendered satisfactory account of the old Forms issued in its favour on 15.9.1995. It has been pointed out to us that along with the application for issuance of new Forms XXVIII-B, details of use of the earlier Forms XXVIII-B issued in favour of the petitioner on 15.9.1995 were given. If the Department wanted any further detail, then it was open to it to ask the petitioner to furnish the same. Therefore, respondent no. It has been pointed out to us that along with the application for issuance of new Forms XXVIII-B, details of use of the earlier Forms XXVIII-B issued in favour of the petitioner on 15.9.1995 were given. If the Department wanted any further detail, then it was open to it to ask the petitioner to furnish the same. Therefore, respondent no. 4 was not justified in assuming that the dealer did not furnish satisfactory account of the old Forms issued in its favour on 15.9.1995. In this connection, learned Government Advocate further submitted that the dealer did not furnish the counterfoils of the Forms issued in its favour on 15.9.1995. The petitioner has given explanation before respondent no. 4 that since the manager has been arrested in connection with the aforesaid case and he is in custody, it was not possible for the Director of the Company to produce the counter-foils of the said Forms. 6. That apart, learned Government Advocate could not point out any provision either under the Act or the Rules to show that for non-production of counter-foils issuance of fresh Forms XXVIII-B in favour of the petitioner can be refused. This being the position, we are clearly of the view that respondent no. 4 was not justified in refusing to issue new Forms XXVIII-B in favour of the petitioner. 7. Accordingly, this application is allowed, order contained in annexure 'C' passed by respondent no. 4 is set aside, prayer made by the petitioner by filing application, contained in annexure-3, for issuance of 50 number of Forms XXVIII-B is allowed and respondent no. 4 is directed to issue the aforesaid forms in favour of the petitioner by 6.2.1996. 8. Needless to say that this order will not in any way, prejudice case of either party in the criminal case. 9. This application is, thus, disposed of.