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2008 DIGILAW 361 (GAU)

Namita Pal v. State of Tripura

2008-05-20

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. Whether a person, other than one, who is registered under the Tripura Sales Tax Act, 1976 (for short, "the Act") shall obtain permit, as prescribed in form XVIII, in terms of the provision of rule 46 read with rule 47 of the Tripura Sales Tax Rules, 1976 (for short, "the Rules") in order to enable such a person bring, into the State of Tripura, goods, which are taxable under the Act? This is the moot question, which stands raised in the present writ petition. 2. Before adverting to the question posed above, it is necessary to set out the respective cases of the parties concerned. 3. The petitioner's case, in brief, reads as under: The petitioner purchased, on September 19, 1988, a new ambassador car (diesel), manufactured by Hindustan Motors Limited, from their dealer, M/s. Austin Distributors Ltd., having registered office at 19, Jawharlal Nehru Road, Calcutta-87, and took delivery of the car from the showroom of the dealer, at Calcutta, on September 9, 1988 itself. On the request of the petitioner, the authorities concerned, in Calcutta, granted, on September 10, 1988, in terms of the provisions of the Motor Vehicles Act, 1988, a temporary certificate of registration bearing registration No. WB-4/TA-7714. When the vehicle was accordingly being brought from Calcutta to Agartala, its entry was stopped, on September 28, 1998, by the Sales Tax Check-post, at Churaibari, on the ground that no permit, as required by the Rules, had been obtained in respect of the said vehicle. When the petitioner contacted the sales tax authorities at Agartala, she was asked to pay sales tax for bringing the vehicle to the State of Tripura. Though the petitioner protested to such a demand on the ground that the petitioner is not liable to pay any such sales tax, she had to yield to the demands, so raised, inasmuch as sales tax authorities concerned refused to let the vehicle being brought inside the State of Tripura without payment of sales tax. The petitioner accordingly made the payment of a sum of Rs.17,761, in the form of sales tax, on October 8, 1998 and it was only thereafter, that the petitioner was allowed to bring the vehicle to Agartala. The petitioner accordingly made the payment of a sum of Rs.17,761, in the form of sales tax, on October 8, 1998 and it was only thereafter, that the petitioner was allowed to bring the vehicle to Agartala. By making this writ petition under article 226 of the Constitution of India, the petitioner has sought for issuance of appropriate writ(s) commanding the respondents to refund to the petitioner the said sum of Rs.17,761 with interest at 18 per cent per annum with effect from October 8, 1998 and also to pay a sum Rs.6,000, as compensation, to the petitioner for illegally detaining the vehicle at the said check-post. 4. The respondents have resisted the writ petition by contending thus : As per the Act and the Rules, there are restrictions on the movement of taxable goods without payment of sales tax in the State of Tripura. A motor vehicle is a taxable item under the Act and the Rules framed thereunder and, hence, a permit, in terms of the Act and Rules, is required to be produced before the officer-in-charge, Churaibari check-post, in order to bring a vehicle into the State of Tripura. This apart, the original invoice is required to be submitted for issuance of permit. The petitioner had applied for permit to the respondents without submitting the correct statement and the invoice. The petitioner had also not disclosed the purpose of the purchase. Since the relevant documents were not enclosed with the application form No. XVIII, as required under rules 46 and 47, the petitioner was asked by the respondents to produce the relevant invoice, in original. The petitioner then, submitted a bill, wherein the address of the purchaser was shown at 41 Shakespeare Sarani, Calcutta, but the application seeking permit, which the petitioner had submitted, showed her address at B. K. Road, Banamalipur, Agartala, West Tripura. Since the address had not tallied as aforesaid, the sales tax authorities concerned asked the petitioner to clarify the matter, but instead of clarifying the matter, the petitioner deposited the sales tax and accordingly, a permit was issued in her favour. As the petitioner had willingly deposited the sales tax, the sales tax paid by her was legal and the petitioner is not entitled to refund thereof. 5. I have heard Mr. A. K. Bhowmik, learned Senior Counsel, appearing on behalf of the petitioner, and Mr. As the petitioner had willingly deposited the sales tax, the sales tax paid by her was legal and the petitioner is not entitled to refund thereof. 5. I have heard Mr. A. K. Bhowmik, learned Senior Counsel, appearing on behalf of the petitioner, and Mr. A. Ghosh, learned Counsel for the State respondents. 6. Before entering into the merit of the writ petition, a careful survey of the relevant provisions, contained in rules 45, 46 and 47, is imperative for the purpose of appreciating correctly the issue involved in this writ petition. In this view of the matter, rules 45, 46 and 47 are reproduced hereinbelow: 45. No person, other than a registered dealer, shall take delivery of transport from any railway station, post office, air-port, business place of any transporter, carrier or transporting agent or in other place whether of similar nature or otherwise in Tripura any consignment of taxable goods dispatched from outside Tripura: Provided that this restriction, shall not apply to any consignment which does not exceed. (a) in case of goods sold by quintal and kilogram 5 kiligrams in weight (b) in case of goods sold by litre 5 litres in volume. (c) in case of goods sold by metre 5 metres in length (d) in case of goods sold by piece 1 in number (e) in case of goods sold by gross 1 gross in number (f) in case of goods sold by dozen 1 dozen in number (g) in case of goods sold by pair 1 pair (h) in case of precious stones, namely, diamonds, 1 gram in weight emeralds, rubies, real pearls and sapphires synthetic or artificial precious stones, pearls-artificial or cultured (vi) Jet Travels 46. A registered dealer shall, before taking delivery of or transporting from any place specified in rule 45, any consignment of taxable goods exceeding the quantities specified in the said rule and dispatched from any place outside Tripura, produce for countersignature before the Superintendent or Inspector the railway receipt, bill of lading or other document required for the purpose of obtaining delivery of such consignment from the carrier. He shall simultaneously make over to the Superintendent a written declaration in (form XVIII in [triplicate] 3 and duly signed. 46A... 46B(1)... 47. He shall simultaneously make over to the Superintendent a written declaration in (form XVIII in [triplicate] 3 and duly signed. 46A... 46B(1)... 47. The Superintendent or Inspector shall, on being satisfied about the correctness of the statement made and particulars contained in the declaration in (form XVIII), countersign the railway receipt bill of lading or other documents and shall seal it with his official seal. All the three copies of declaration made by the dealer shall be endorsed with the number of railway receipt, bill of lading or other documents as the case may be and the date of countersignature of the aforesaid document and they shall be signed by the Superintendent or Inspector and sealed with his official seal. Two copies of the declaration shall thereupon be returned to the dealer and the other copy retained by the Superintendent or Inspector. 47A(5)... 47B(1)... 47C(1)... 7. A close perusal of the provisions, contained in rule 45, clearly shows that in the case of those goods, which are sold by piece, one piece can be brought, even if taxable, without payment of tax in respect thereof. Rules 45 and 46 are really applicable to the cases of those persons, who are registered under the Act inasmuch as rule 46 clearly states that a "registered dealer" cannot bring any of the taxable goods, enumerated in rule 45, without a permit having been issued by the Superintendent of Sales Tax, in form No. XVIII, on the basis of declaration made by the "registered dealer". 8. It is, now, necessary to take note of the contents of form No. XVIII. This form reads as under: From : XVIII The Tripura Sales Tax Act, 1976 (See rules 46, 47) To The Superintendent of Taxes, In accordance with the provisions of rules 46 and 47 of the Tripura Sales Tax Rules, 1976, I/We hereby declare that the following consignment of... This form reads as under: From : XVIII The Tripura Sales Tax Act, 1976 (See rules 46, 47) To The Superintendent of Taxes, In accordance with the provisions of rules 46 and 47 of the Tripura Sales Tax Rules, 1976, I/We hereby declare that the following consignment of... is being imported into Tripura, by rail/air/steamer and apply for a permit to transport the same by road/by boat from the railway stations/steamer station/post office/air-port mentioned below: (1) Name and address of the seller from whom purchased : (2) Name and address of the consignee : (3) Place of dispatch : (4) Name of railway station/steamer station/post office/air port form where delivery will be taken : (5) Destination : (6) Description of consignments : (7) Quantity (8) Weight : (9) value : (10) Consignors Invoice No. and date : (11) Railway receipt or bill of lading or Air Note No. : (12) Remarks (if any) : I/We hereby declare that I/We am/are registered under the Tripura Sales Tax Act, 1976 holding registration certificate No. and the above statements are true to the best of my/our knowledge and belief. I/We also undertake to duly account for to you the disposal of the above goods when imported and to pay tax on the sales thereof according to provisions of the said Act and Rules made thereunder. Name of the dealer in full address : Signature and status of the applicant : Permit No. : I hereby permit to take delivery or to transport the consignment detailed above. Seal Date ……… Signature of the Superintendent of Taxes, Circle ……… 9. A bare perusal of form No. XVIII clearly shows that before the permit is issued by the Superintendent of Taxes, the "registered dealer" is required to make a declaration in terms of various requirements set out in form No. XVIII. 10. When the provisions of rules 45, 46 and 47 are read in the light of the contents of form No. XVIII, it becomes more than abundantly clear that a person, other than a "registered dealer", cannot be forced to either apply or obtain a permit in form No. XVIII. In the present case, the pleaded facts by the parties clearly show that according to the sales tax authorities concerned, a permit, in form No. XVIII, is necessary for the purpose of bringing any taxable goods into the State of Tripura. In the present case, the pleaded facts by the parties clearly show that according to the sales tax authorities concerned, a permit, in form No. XVIII, is necessary for the purpose of bringing any taxable goods into the State of Tripura. This stand of the respondents, in the light of the clear provisions made in rules 45, 46 and 47, is wholly misconceived and untenable in law. There was absolutely no legal obligation, on the part of the petitioner, in the face of the facts of the present case, to obtain permit in form No. XVIII; whereas, the affidavit filed by the respondents clearly reflects that the respondents were of the view that a permit, in form No. XVIII, is necessary in order to enable the petitioner to bring the vehicle, in question, inside the State of Tripura. It is in this background that the payment of sales tax made by the petitioner needs to be considered. The payment of sales tax, which the petitioner, in the facts and circumstances of the present case, was forced to make, was, thus, wholly illegal and suitable directions need to be issued, now, enabling the petitioner to receive back the said amount of Rs.17,761. 11. Coupled with the above, what cannot be ignored is that though in para 6 of the writ petition, it had been clearly pointed out by the writ petitioner that she was not liable to obtain any permit in form No. XVIII, the respondents have, in their affidavit-in-opposition, seriously disputed such contention of the petitioner and asserted that obtaining of a permit, in terms of the provisions of the Rules, is a condition precedent for bringing taxable goods into the State of Tripura. Thus, the justification offered by the respondents for insisting obtaining of the permit leaves this Court with no option, but to hold that the respondents have harassed the petitioner by illegally forcing her to make payment of the said sum of Rs.17,761 and, in such circumstances, the respondents are liable to pay the interest for withholding the said amount. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the respondents shall pay the said sum of Rs.17,761, within one month from today, with interest at six per cent per annum from October 8, 1998 until realisation of the said amount. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the respondents shall pay the said sum of Rs.17,761, within one month from today, with interest at six per cent per annum from October 8, 1998 until realisation of the said amount. This apart, in face of the peculiar facts and circumstances of the present case, the respondents shall also be held liable to pay a sum of Rs.500 as minimum possible cost of the legal proceeding. 12. With the above observations and directions this writ petition shall stand disposed of with the cost of Rs.500 against the respondents.