Amith Enterprise v. Deputy Commissioner of Sales Tax
2016-02-10
SANJIB BANERJEE
body2016
DigiLaw.ai
JUDGMENT : The petitioners have challenged an order passed under Rule 110B(1) of the West Bengal Value Added Tax Rules, 2005 and under Rule 4B(5) of the Central Sales Tax (West Bengal) Rules, 1958 dated November 16, 2015 by the Special Commissioner, Sales Tax, West Bengal. The petitioners claim that the authority under Rule 4B of the 1958 Rules and the authority under Rule 110B of the 2005 Rules may only be exercised by the officer indicated by designation in such rules and by no other. The petitioners claim that at least as far as Rule 4B of the 1958 Rules is concerned, an officer generally permitted to discharge the duties of a Commissioner under the West Bengal Value Added Tax Act, 2003 cannot be seen to be authorised to exercise the power of de-selection. The second limb of attack against the impugned order launched by the petitioners is that the order is unreasoned. The order is contained in a single page. The first paragraph introduces the assessee and the provisions. The second paragraph records the facts in brief. The third paragraph rushes to the conclusion and direction for de-selection under Rule 110B of the 2005 Rules. The following paragraph pertains to the de-selection under Rule 4B of the 1958 Rules. The last paragraph of the order provides for an application for restoration being considered upon the dealer’s satisfactory compliance with the statutory provisions. The State refers to a notification of March 31, 2005 issued under Section 4(1) of the Act of 2003 by which the Special Commissioner of Commercial Taxes appointed by the State under the West Bengal Sales Tax Act, 1994 has also been appointed Special Commissioner of Sales Tax under the said Act of 2003 with the powers of the Commissioner. The State also refers to Section 9(2) of the Central Sales Tax Act, 1956. The State says that adequate reasons have been indicated in the order impugned since the facts recorded refer to the corresponding dealer in Uttar Pradesh to be dealing only in coke and coal. The State has produced a copy of the registration certificate issued to the petitioner firm. The registration certificate reveals that the registered dealer deals in marbles and tiles and like material. Nothing in the registration certificate pertains to any dealing in coke and coal.
The State has produced a copy of the registration certificate issued to the petitioner firm. The registration certificate reveals that the registered dealer deals in marbles and tiles and like material. Nothing in the registration certificate pertains to any dealing in coke and coal. The State says that even if it is accepted, without it being admitted, that the impugned order of November 16, 2015 does not contain any or adequate reasons in support of the decision reflected therein, it would be evident from the reasons supplied in subsequent communication addressed by the authorities to the petitioners that grounds exist for the de-selection of the petitioners under either provision. The State also says that the de-selection by the order impugned only disentitles the dealer from generating electronic declaration forms and the like; but the dealer has not been precluded from applying for and obtaining the forms in the usual course other than by electronic self-generation thereof. The State says that an inquiry under Section 66 of the Act of 2003 has been instituted against the petitioners and the reasons for the initiation of such inquiry have been indicated in a subsequent notice of December 18, 2015. Since it is evident from such subsequent notice that grounds exist for the authorities to take a dim view of the petitioners’ conduct, the impugned order of deselection should not be interfered with. As to the challenge to the impugned order on the ground of lack of jurisdiction of the authority which passed the same, it appears, notwithstanding the restrictive wording of the relevant notification of March 31, 2005, that such notification confers authority on the Special Commissioner to deal with matters that the Commissioner is empowered to under the said Act of 2003. Since the impugned order has been passed under both Rule 110 of the 2005 Rules and Rule 4B of the 1958 Rules, it must first be noticed that in view of the notification of March 31, 2005, the Special Commissioner had unquestionable authority to make the order under Rule 110B of the 2005 Rules since the 2005 Rules were made under the Act of 2003 and the notification specifically authorised the Special Commissioner to discharge the duties of the Commissioner under the Act of 2003.
However, merely because the Special Commissioner had the authority to discharge the duties of the Commissioner under the 2005 Rules would not imply that the similar power under Rule 4B of the 1958 Rules may also be exercised by the same authority. Rule 4B of the 1958 Rules refers not only to a Commissioner but the relevant expression is, “Commissioner under the West Bengal Value Added Tax Act, 2003.” When a rule made by the executive (as distinct from rules made by the legislature) confers powers on a designated authority under a particular statute, another person notified to discharge the same duties as the designated authority will have the fullest authority to do whatever the designated authority may do. What is important is that Rule 4B of the 1958 Rules refers to the Commissioner in the context of the Act of 2003. As such, by virtue of the notification of March 31, 2005, all the powers of the Commissioner under the said Act of 2003 may be discharged by the Special Commissioner, including the powers assigned to the Commissioner by referring to him by designation under the Act of 2003. The petitioners’ challenge to the order on the ground that it does not contain any reasons, appears to be on firmer ground. However, it is no longer open to contend that upon an executive order prejudicing a citizen not indicating the reasons therefor, the reasons cannot be furnished by a subsequent order. The rules of natural justice in such regard are not so rigid in contemporary jurisprudence. It must be recognised that this case pertains to a fiscal matter and the respondent authorities perceive the petitioners to have submitted fake or forged documents. Though, ideally, some modicum of reasons ought to have been indicated in the order impugned, but the reasons can be gleaned from the subsequent order of December 18, 2015 which is a notice under Section 66 of the Act of 2003 for initiating an inquiry against the petitioner firm. It must also be appreciated that the order impugned kept the avenue open for the petitioners to seek the order of de-selection to be annulled at an appropriate stage.
It must also be appreciated that the order impugned kept the avenue open for the petitioners to seek the order of de-selection to be annulled at an appropriate stage. That remedy is still open to the petitioners in the event the inquiry conducted against the petitioners under Section 66 of the Act of 2003 renders a finding favourable to the dealer or does not attribute any wrongdoing to the concerned firm. On the basis of the material now available, the order impugned dated November 16, 2015 cannot be interfered with either on the ground of perceived lack of authority of the maker thereof or on the ground of the lack of reasons contained therein. However, the respondent authorities are directed to ensure that the findings of the relevant inquiry are communicated to the petitioners within six weeks from date, whereupon a favourable finding will qualify the petitioners to immediately seek the vacating of the order impugned dated November 16, 2015 and the restoration of the electronic facilities that the petitioners cherish. WP 1267 (W) of 2016 is disposed of without any order as to costs. Certified website copies of this order, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.