Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 459 (GAU)

Abdur Rahman v. Dealer Selection Board

2010-07-01

HRISHIKESH ROY, MADAN B.LOKUR

body2010
JUDGMENT 1. Heard Mr. G.N. Sahewalla, learned senior counsel for the Appellant, Mr. K.N. Choudhury, learned senior counsel for Respondent No. 5 and Mr. P.J. Saikia, learned Counsel for Respondent Nos. 2, 3 and 4. 2. The Appellant is aggrieved by an order dated 1.2.2008 passed by a learned Single Judge in WP(C) No. 4890/2001. 3. The Bharat Petroleum Corporation Ltd. invited applications from eligible persons for award of dealership/distributorship under open category at Moranhat. The dealership/distributorship was in respect of supply of LPG cylinders. 4. The eligibility criteria prescribed contains a reference to the gross income. This was defined/explained in the following words: The candidate should not have gross income of more than Rs. 2 lakh for the last financial year, as specified in the advertisement. The income for this purpose include that of self, spouse and dependant children. 5. In paragraph 9 of the scheme, gross income was further explained in the following words: The income will include income from all sources such as salary, property, property, interest, dividend, business/profession/vocation/agriculture and other sources, if any. If the applicant is an Income Tax Assessee, the details of income as shown in the annual income declaration should conform to those indicated in the income tax return for the relevant finance year and the assessment order of the Income Tax Officer thereon. If, however, the applicant is not an Income Tax Assessee then the details should be supported with other relevant documents some or which mentioned below by was of illustration: (a) Gross Salary: A certificate from the employee(s) indicating the total emoluments paid. 6. The proforma of the affidavit referred to in paragraph 9 of the scheme was attached and the declaration of annual income, which was to be enclosed to the affidavit, was also attached to the scheme. A perusal of the declaration of the annual income makes it very clear that gross income should be indicated and not net income. 7. Respondent No. 5 submitted his application which was considered by the Dealer Selection Board of Bharat Petroleum Corporation Ltd. and after interviewing the said Respondent, the dealership was awarded to Respondent No. 5. 8. A perusal of the declaration of the annual income makes it very clear that gross income should be indicated and not net income. 7. Respondent No. 5 submitted his application which was considered by the Dealer Selection Board of Bharat Petroleum Corporation Ltd. and after interviewing the said Respondent, the dealership was awarded to Respondent No. 5. 8. The Appellant appears to have been a competitor for the dealership and, therefore, feeling aggrieved by the fact that the dealership was awarded to Respondent No. 5, a writ petition was filed in this Court in which it was alleged that the gross total income of Respondent No. 5 was well above the limit of Rs. 2 lakh prescribed under the scheme. 9. The learned Single Judge hearing the writ petition issued notice to the Respondents and Respondent No. 5 filed an affidavit in opposition wherein the Income Tax return/statement for the year ending 31st March, 2000 was annexed. On the basis of the documents placed before the learned Single Judge, it was contended by learned Counsel for the Appellant, that the gross total income of Respondent No. 5 was well above Rs. 2 lakh per annum and, therefore, the said Respondent was not eligible for being considered for appointment of distributorship/dealership for supply of LPG cylinders. 10. The learned Single Judge did not agree with the submissions made by learned Counsel for the Appellant and, therefore, dismissed the writ petition. Under the circumstances the Appellant, is now before us. 11. It is submitted by the learned Counsel for the Appellant that from the computation of the total income submitted income submitted by Respondent No. 5 it is very clear that the net profit as per profit and loss account is about Rs. 1,20,000 and the total taxable income is also about Rs. 1,70,000 (rounded off). Our attention has been drawn to the receipts from various sources including from the Indane Bottling Plant and Bongaigaon Bottling Plant of Indian Oil Corporation (Assam Oil Division) which shows that the Respondent received a huge amount of Rs. 33 lakh for the year ending 31st March, 2000. Respondent No. 5 has taken into consideration the depreciation of the plant and machineries and on that basis, it appears to have calculated a net profit of Rs. 1,20,000. 33 lakh for the year ending 31st March, 2000. Respondent No. 5 has taken into consideration the depreciation of the plant and machineries and on that basis, it appears to have calculated a net profit of Rs. 1,20,000. It is submitted by learned Counsel for the Appellant that by this calculation the gross total income of Respondent No. 5 is shown to be well below the limit or Rs. 2 lakh prescribed under the scheme. He says that the calculations made do not reflect the gross income of Respondent No. 5 and that factually the gross income of Respondent No. 5 is more than Rs. 2 lakh per annum making it ineligible for grant of distributorship/dealership for supply of LPG cylinders. 12. Learned Counsel for Respondent No. 5 has contended before us that under the provisions of the Income Tax Act, 1961, the gross total income of a person has to be calculated after taking into consideration various deductions that are permissible under the Income Tax Act and if such deductions are made, the gross total income of Respondent No. 5 comes to about Rs. 1,70,000 and as such the said Respondent is eligible for consideration for grant of dealership/distributorship by the Bharat Petroleum Corporation Ltd. 13. Unfortunately, we are unable to agree with the submission of learned Counsel for Respondent No. 5. The scheme postulates the grant of dealership/distributorship to persons who are in need of some income for survival and that is why the gross total income has been prescribed at Rs. 2 lakh per annum. It is not the gross total income of the individual alone but includes the income of the applicant's spouse, parents and children. Therefore, the scheme postulates income as understood by the common man which is income from all the sources. The gross total income, in the context of the scheme, is to be understood in the common parlance as gross receipts and not in the sense as would be understood by an Income Tax Petitioner. Understood in this manner, if the income exceeds Rs. 2 lakh per annum then the applicant would not be eligible for consideration. 14. Insofar as Respondent No. 5 is concerned he is carrying on a business and it is by virtue of that business that, the said Respondent has a huge income. Understood in this manner, if the income exceeds Rs. 2 lakh per annum then the applicant would not be eligible for consideration. 14. Insofar as Respondent No. 5 is concerned he is carrying on a business and it is by virtue of that business that, the said Respondent has a huge income. Respondent No. 5 is entitled to certain business deductions under the Income Tax Act but the scheme framed by the Bharat Petroleum Corporation Ltd. does not, to our mind, postulate gross total income as being equivalent to taxable income under the Income Tax Act. Therefore, the reference made by learned Counsel for Respondent No. 5 to the various provisions of the Income Tax Act are not relevant insofar as we are concerned. It is quite clear to us that Respondent No. 5 has a large turnover which is far in excess of Rs. 2 lakh per annum limit proscribed by the scheme framed by Bharat Petroleum Corporation Ltd. The documents on record show quite clearly the state of affairs and in our opinion there is nothing to suggest that Respondent. No. 5 is entitled to validly contend that gross total income must be taxable income under the provisions of the Income Tax Act. 15. Under the circumstances we are unable to agree with the view taken by the learned Single Judge. Therefore, we set aside the impugned judgment and order dated 1.2.2008 and direct that the dealership/distributorship granted by Bharat Petroleum Corporation Ltd. to Respondent No. 5 be cancelled forthwith. If the dealership/distributorship has already been commissioned, we require the Bharat Petroleum Corporation Ltd. to make the cancellation in such a marines that it does not cause inconvenience to the consumers for the time being. Thereafter Bharat Petroleum Corporation Ltd. will reconsider the matter and grant the dealership/distributorship to the most eligible person. 16. The appeal is allowed. No costs. Appeal allowed