1. The petitioner, M/s. Shree Ram Saw Mill, is a partnership firm and a registered dealer under the West Bengal Sales Tax Act, 1994 (hereinafter referred to as "the Act of 1994"). The petitioner-firm holds an eligibility certificate issued under Section 39 of the Act of 1994 valid from May 14, 2000 to May 13, 2007. The place of business of the petitioner-firm is at 16, P. T. R. Siding, Howrah, within the area under Shibpur Charge.
2. By an amendment, Sub-section (4) along with a proviso and Explanation was inserted in Section 39, with effect from April 1, 2003 in the Act of 1994. The said proviso to Sub-section (4) of Section 39 has put a limit to the benefit of exemption from payment of tax. The said proviso has provided, inter alia, that a dealer shall cease to enjoy such exemption from the day immediately following the day on which the aggregate of the benefit of exemption from payment of tax enjoyed by the dealer under this section, computed from the day of coming into force of this sub-section, exceeds 200 per centum of the gross value of fixed assets".
Explanation (a) to Sub-section (4) explains the meaning of "gross value of fixed assets.
3. Explanation (b) further lays down that aggregate of the benefit of exemption enjoyed by the dealer under Section 39 shall be determined in such manner and within such time as may be prescribed.
4. The manner of determination of the "gross value of fixed assets" has been prescribed by Rule 101A of the West Bengal Sales Tax Rules, 1995 (hereinafter referred to as "the Rules of 1995"). Sub-rule (3) of Rule 101A provides: (3) The appropriate assessing authority shall, ordinarily within sixty days from the receipt of- (b) the declaration referred to in Sub-rule (1), where it appears from such declaration that the gross value of fixed assets has changed since the last determination of such gross value was made by the appropriate assessing authority, determine or re-determine the gross value of fixed assets and make appropriate endorsement on the body of the certificate of eligibility in form 18 issued to the dealer.
5. The petitioner-firm received a notice dated December 9, 2005 from the Assistant Commissioner of Sales Tax, Central section, to show cause against various deductions and findings made in the course of an enquiry into the petitioner's claim of "gross value of fixed assets" (hereinafter referred to as the "gross value"). Along with the said notice the findings and deductions against which the petitioner is to show cause have also been communicated.
6. In his application before the Tribunal, the petitioner has questioned the legality and validity of the aforesaid notice on the ground that the Assistant Commissioner of Sales Tax, Central Section, has no authority or jurisdiction to issue such notice for the purpose of determination of gross value as he is not the "appropriate assessing authority" within the meaning of Rule 101A of the Rules of 1995.
According to the petitioner the Assistant Commissioner of Sales Tax/Commercial Tax Officer, Shibpur Charge, is the only "appropriate assessing authority" to determine the "gross value" of the petitioner's factory.
7. Mr. S. K. Pal, learned senior advocate appearing for the petitioner, has placed before us Rule 2(c) of the Rules of 1995 containing the definition of "appropriate assessing authority", Rule 3 thereof prescribing restrictions and conditions for delegation of power by the Commissioner and the provisions of various sub-sections of Section 3 of the Act of 1994. To substantiate his argument Mr. Pal has also drawn our attention to the Explanation to Rule 205 of the Rules of 1995 and Commissioner's order dated March 27, 2002 issued in exercise of power conferred upon him by Rule 205 whereby he has authorised the Assistant Commissioners, Commercial Taxes, Commercial Tax Officers of the Charge Offices working in the Central Section/Range Officers to function as "appropriate assessing authority" within the meaning of Explanation contained in Rule 205.
8. In exercise of the powers conferred by Sub-section (1) of Section 3, the State Government issued a Notification No. 1115-F.T. dated April 20, 1995 specifying the areas of different charges mentioned in column 1 of the table contained therein and the territorial jurisdiction over which the Assistant Commissioner, Commercial Taxes, Commercial Tax Officers, Assistant Commercial Tax Officer of the particular charge shall exercise their jurisdiction.
9. On the same date the State Government in exercise of the power conferred by Sub-section (1) of Section 3 issued another Notification No. 1119-F.T. dated April 20, 1995 specifying that the officers of the Central Section mentioned therein shall exercise jurisdiction over the whole of West Bengal and notwithstanding anything contained in Notification No. 1115-F.T. dated April 20, 1995, those officers of the Central Section shall exercise jurisdiction in relation to any dealer having his place of business in any area falling within the jurisdiction of any charge.
10. Section 3(1) has empowered the State Government to appoint various officers to assist the Commissioner of Commercial Taxes and to specify the area or areas over which such assisting officers shall exercise jurisdiction. By Notification No. 1115-F.T. dated April 20, 1995, the State Government specified the areas of different charges and territorial jurisdiction of the assisting officers attached to particular charge or charges. By Notification No. 1119-F.T. dated April 20, 1995, the State Government has conferred on the assisting officers attached to the Central Section jurisdiction over the entire State of West Bengal.
11. The combined effect of these two notifications is that for each charge there are two sets of empowered assessing officers-one set comprising officers attached to the particular charge and another set comprising officers belonging to the Central Section.
12. "Appropriate assessing authority" has been defined in Rule 2(c) of the Rules of 1995. The said definition runs thus: 2(c) 'appropriate assessing authority', in respect of any particular dealer, means the Assistant Commissioner or the Commercial Tax Officer, as the case may be, within whose jurisdiction such dealer's place of business is situated or, if such dealer has more than one place of business in West Bengal, the Assistant Commissioner or the Commercial Tax Officer within whose jurisdiction the chief branch or the head office in West Bengal of such business is situated.
13. As already pointed out, there are two sets of empowered officers for each charge. The officers attached to the Central Section have jurisdiction over the entire State of West Bengal and as such the places of business of all the dealers in West Bengal are within the jurisdiction of the officers of the Central Section. In view of the definition as given in Rule 2(c) the officers of the Central Section have also become "the appropriate assessing authority".
14. Section 3 of the Act of 1994 has different sub-sections dealing with different facets of jurisdiction and authority. Sub-section (1) thereof has empowered the State Government to appoint officers to assist the Commissioner of Commercial Taxes and to specify the territorial jurisdiction over which such officers shall exercise their power and authority. Sub-section (3) thereof has empowered the Commissioner to transfer any case or matter from one officer to another competent officer appointed under Sub-section (1) to assist him.
Sub-section (4) has conferred on the Commissioner power to delegate any of his powers to any person appointed under Sub-section (1) subject to such restrictions and conditions as may be specified. Rule 3 of the Rules of 1995 has put certain restrictions on the Commissioner's power to delegate his functions.
15. Conferment of power and specifying territorial jurisdiction under Sub-section (1) of Section 3 are different from the power of transfer of the Commissioner under Sub-section (3) and power of delegation under Sub-section (4) thereof. Question of transfer or delegation does not arise where power and jurisdiction have been conferred by the State Government under statutory power derived from Sub-section (1) of Section 3. The officers empowered by the State Government under Sub-section (1) shall exercise their power on their own rights over the areas specified by the State Government.
16. Mr. Gupta has drawn our attention to Rule 205 of the Rules of 1995 prescribing the manner of imposition of penalty for non-issue of cash memo or bill in respect of sale price exceeding rupees 200. Under the said rule appropriate assessing authority is to initiate such proceeding and to pass final order in accordance with the procedure laid down therein. An Explanation has been added to Rule 205 by Notification No. 947-F.T. dated March 27, 2002 with effect from April 1, 2000, retrospectively. The said Explanation is reproduced below: Explanation.-For the purposes of this rule, the expression 'appropriate assessing authority' shall also include such other officer as the Commissioner may authorise, in writing, in this behalf.
17. Mr. Pal has referred to an authorisation dated March 27, 2002 whereby the Commissioner in exercise of the power conferred upon him by the Explanation in Rule 205 authorised the Assistant Commissioners, Commercial Taxes and Commercial Tax Officers working in the Central Section and/or Range Offices to take all actions as may be necessary under Sub-rule (1), Sub-rule (2), Sub-rule (3) and Sub-rule (4) of Rule 205 and each of them will be considered as "an appropriate assessing authority" within the meaning of Explanation contained in Rule 205.
Referring to the aforesaid authorisation dated March 27, 2002, Mr. Pal has submitted that if the officers working in the Central Section and/or Range Offices have become appropriate assessing authority by virtue of the State Government's Notification No. 1119-F.T., the Commissioner would not have issued any separate authorisation authorising those officers of the Central Section to act as "appropriate assessing authority" within the meaning of Rule 205 and Explanation thereto.
18. Mr. Pal has not probably noticed the provisions of main Section 64 of the Act of 1994 providing for penalty for contravention of Section 63 of the Act. Rule 205 prescribes the manner in which penalty as contemplated by the parent Section 64 of the Act is to be determined and imposed. Section 64, Sub-section (1) is quoted below: 64. (1) If a registered dealer or a dealer contravenes the provisions of Section 63, the Commissioner may, after giving such dealer a reasonable opportunity of being heard, by an order in writing, direct that he shall pay, in the prescribed manner, by way of penalty, a sum equal to double the amount of tax which could have been levied under this Act in respect of the sales referred to in that section where no cash memorandum or bill has been issued, or five thousand rupees, whichever is greater: Provided that if such registered dealer or dealer proves to the satisfaction of the Commissioner that he deals exclusively in goods specified in Schedule I, sales of which are declared tax-free under Section 24, or that it is not practicable for such registered dealer or dealer to issue cash memorandum or bill against each transaction in view of the circumstances and nature of his business, the Commissioner may exempt such registered dealer or dealer from payment of penalty or impose such lesser amount of penalty as he deems fit and proper.
19. The parent section has authorised only the Commissioner to impose penalty and to direct payment of such penalty in prescribed manner. The section has not conferred such power on "appropriate assessing authority". The expression "Commissioner" includes only those assisting officers to whom he has transferred a particular case or cases under Sub-section (3) of Section 3 or to whom he has delegated his power under Sub-section (4) of Section 3.
20. Rule 205 of the Rules has sought to confer on the "appropriate assessing authority" power to determine and impose penalty under Section 64 of the Act. It is well-known that Rules cannot override the provisions of the statute and provision in Rule 205 conferring power upon "appropriate assessing authority" contravenes Section 64 of the Act under which an officer cannot determine and impose penalty merely because he is the "appropriate assessing authority". An appropriate assessing authority, as such, does not have automatic jurisdiction to exercise power under Section 64 of the Act unless such power is specifically delegated by the Commissioner or the particular case is transferred to such officer by the Commissioner. It appears to us that to overcome such apparent conflict and/or difficulty Explanation was added to Rule 205 enabling the Commissioner to authorise particular competent officer to exercise his powers under Section 64 of the Act of 1994 in accordance with Rule 205 of the Rules of 1995. In view of Section 64 of the Act "appropriate assessing authority" without being specifically authorised cannot exercise the powers under Section 64 of the Act. It thus became necessary to issue the authorisation dated March 27, 2002.
21. Explanation (b) to Sub-section (4) of Section 39 of the Act of 1994 has not specified any officer or kind of officer who will determine the gross value. It has merely provided that gross value will be determined in such manner as may be prescribed. Rule 101A prescribes the manner and confers the authority on the "appropriate assessing authority".
There is no conflict or inconsistency between Section 39(4) and Rule 101A. Under Rule 101A an officer by virtue of being "appropriate assessing authority" can determine gross value in accordance with the prescribed procedure.
22. The analogy between Rule 101A and Rule 205 does not hold good. In any event, when Rule 101A has authorised "appropriate assessing authority" and the general definition of "appropriate assessing authority" as contained in Rule 2(c) brings within its fold the officers of the Central Section having jurisdiction over all the charges in West Bengal, reference to any other rule dealing with a different situation in different context is meaningless.
23. For the reasons aforesaid we are unable to accept the contention of the petitioner that the Assistant Commissioner, Sales Tax, Central Section is not the "appropriate assessing authority" for the purpose of determining "gross value" under Rule 101A of the Rules of 1995. We do not find any merit in this application. However, the petitioner is given time till May 15, 2006 to appear before the Assistant Commissioner, Central Section, in response to his notice, if it desires to respond to the said notice.