Amola Bhattacharjee Vs. Commercial Tax Officer and ors. - Court Judgment

P.K. Banerjee, J.

1. This rule is directed against a notice under Section 12(2) of the Bengal Finance (Sales Tax) Act, 1941, as also the notice under Section 9 of the Central Sales Tax Act read with Section 11 (2) of the Bengal Finance (Sales Tax) Act, 1941, for assessment for the period between 8th July, 1966, and 30th September, 1967. The petitioner was carrying on business as the sole proprietor, under the name and style of 'S.B. Enterprise' at 90-B, Hazra Road, Calcutta-26. The petitioner is a manufacturer of bath tubs and bath trays and, it is alleged, sells them mainly outside the State of West Bengal. The petitioner started the said manufacturing business, it is alleged, from November, 1965. The accounting year of the petitioner is from 1st of April to 31st of March. On 8th July, 1966, the first sale was effected by the petitioner which was a sale in the course of inter-State trade and commerce within the meaning of Section 3(a) of the Central Sales Tax Act, 1956. On 19th July, 1966, the petitioner applied for registration to the Commercial Tax Officer, Bhawanipur Charge. On 16th September, 1966, the said application was, however, rejected by an order and the intimation rejection was communicated to the petitioner on 30th September, 1966. Three days before the receipt of rejection of the notice, the sales tax authorities issued an assessment notice dated 28th September, 1966, fixing the date on 3rd November, 1966. After giving a. hearing, the Commercial Tax Officer advised the petitioner to file a fresh application for registration. On 4th November, 1966, the petitioner applied in the prescribed form in the prescribed manner for issuing a registration certificate under the Sales Tax Act. Though the petitioner filed the said application on 4th November, 1966, no certificate of registration was issued. On 30th September, 1967, a notice in form 3 of the Central Sales Tax (West Bengal) Rules was served on the petitioner asking the petitioner to produce all books and records for assessment for the period beginning from 8th July, 1966, to 30th September, 1967. On 14th November, 1967, the petitioner stated that though the application for registration was pending from 10th November, 1966, no order has been made thereon. The petitioner was served with the notice under Section 9 of the Central Sales Tax Act read with Section 11(2) of the Bengal Finance (Sales Tax) Act, 1941, stating that the petitioner has failed to get himself registered though in fact, the petitioner applied for registration on 9th July, 1966, which was rejected and again applied on 10th November, 1966, upon which no order has yet been made. On 18th January, 1968, and on 12th February, 1968, the petitioner wrote to the Assistant Commissioner, Commercial Taxes (South), complaining delay in registration and praying for expedition. But no order for registration was made before 12th March, 1968, and though it was due to the laches of the respondent that the application was kept pending for so long the assessment was sought to be made on the allegation that the petitioner has failed to get himself registered. The respondent has filed the affidavit stating that the first application was made on 8th August, but the same was rejected on merits on the ground that the petitioner is not liable to get registration. The next application dated 5th November, 1966, was filed on 10th November, 1966, but in the affidavit it is stated that the application was riot properly filled in, inasmuch as, there was no signature of any attesting witness. From the records it is found that there were two signatures in column 9. It appears from the order and endorsement that the application dated 5th November, 1966, is properly attested but subsequently again in the order sheet it is found that the application in form A was duly attested, but no action was taken. It is quite apparent that the form which was filed on 5th November, 1966, was duly attested by the authorised representative and one Shri R. Bhattacharjee. In the circumstances, it must be stated that the properly filled in form was filed before the officer concerned and they took a long time to register the petitioner and issue registration certificate to the petitioner. The respondent took about 2 years time from 10th November, 1966. The Commercial Tax Officer was responsible, in my opinion, for the disposal of the application until 12th March, 1968, and as such the petitioner's firm must not be made liable under Section 12(2) of the Act and the petitioner is not in any way responsible for the delay in the disposal of the application. In view of the judgment of 'Binayak Nath Banerjee, J., in the matter of M/s. Walmji Hirji Parmar and Ors. v. C.T.O., Serampore, decided on 20th February, 1962, it must be held that the petitioner is not liable to be treated as a firm failing to get itself registered with effect from 10th November, 1966, when the application was in fact filed before the Commercial Tax Officer and, between 10th November, 1966 to 12th March, 1968, for the delay, the respondent was responsible. In that view, therefore, the petitioner's firm cannot be made liable for the delay of the respondent in the disposal of the application, and the notice under Section 9 in respect of the period commencing from 10th November, 1966, to 30th September, 1967, is bad and it cannot be said that the petitioner has failed to get himself registered as the application was pending before the Commercial Tax Officer. The same cannot be said, however, in respect of the period between 8th July, 1966, and 9th November, 1966.

2. In the circumstances, therefore, this rule succeeds in part.

3. The notice under Section 11(2) for the period between 10th November, 1966, and 30th September, 1967, must stand quashed but the notice for the period from 8th July, 1966, to 9th November, 1966, must, however, be effective notice.

4. The rule is made absolute to the extent indicated above.

5. There will be no order as to costs.