TaxTMI 
TaxTMI 
1987 (3) TMI 503
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....nterlocutory order on the survival of a business concern like that of the petitioners, on the one hand, and irreparable loss of revenue on the part of the statutory authorities on the other, has compelled us to bestow our very serious and anxious consideration at the dictates of our judicial conscience so that within the permissible limits of law, the interests of both the contesting parties may be duly safeguarded and ends of justice may be served. The relevant facts as narrated in the writ application, shortly put, are as follows: The petitioner No. 2 (hereinafter referred to as "concerned petitioner") carried on a business under the name and style of M/s. LoveBird (India), at 9, Beck Bagan Row, Calcutta-17, as commission agent and tea merchant; the concerned petitioner's firm was a member of Calcutta Tea Traders Association and as such was entitled to bid at auction of tea sale held in Nilbut House at No. 11, R.N. Mukherjee Road, Calcutta-1; other tea traders, who are not members of the said association, purchased tea sold in auction as aforesaid in the name of the concerned petitioner against commissions; under the existing system the members, who bid at the auction, are ....
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....uch cancellation, no declaration form was issued to him; it appears from the order cancelling the registration that such cancellation had been made on the belief that the dealer had not been carrying on business from the declared place of business as gathered from personal visit by the officer concerned on 24th February, 1986 and another visit by an Inspector of Commercial Taxes on 20th February, 1986; there was also a reference to a visit by a team of Inspectors of the Central Section without any particulars relating to such visit; the concerned petitioner filed two revisional applications on 21st March, 1986 under both the State Act and the Central Act, challenging the propriety of the order of cancellation; the said two applications were taken up for hearing on 4th April, 1986 by one P.G. Goswami, Assistant Commissioner of Commercial Taxes, South Circle, respondent No. 4, who called for a report from the Commercial Tax Officer, Ballygunge Charge, apparently to discern the real reason for cancellation of the registration certificates and simultaneously asked the concerned petitioner to submit a statement of purchases and sales made during the month of March, 1986, that is, subseq....
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....ance (Sales Tax) Act, 1941. The said cancellation can be made in terms of the statute when "any business......has been discontinued". According to Mr. Bhattacharyya, admittedly, in the instant case, the existence of the basic criterion for such cancellation, namely, discontinuance of the business is founded upon visits by the Commercial Tax Officer, Ballygunge Charge, who is respondent No. 1 to the writ application, on 24th February, 1986 and another visit by an Inspector of Commercial Taxes on 20th February, 1986 at 1.15 P.M. Referring to the reports submitted by the said two officers, which are annexures H and X respectively, Mr. Bhattacharyya has submitted that on 24th February, 1986, his client admittedly had to attend the office of the Commercial Tax Officer, Central Section, West Bengal, in pursuance of the notice dated 14th February, 1986, which is annexure E to the writ application. Therefore failure on the part of the concerned petitioner to keep the place of business open cannot be basis of a conclusion that the business had been discontinued, particularly, when the time of visiting the business place is conspicuously withheld in the said annexure by the officer concerned....
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....f the writ application though an affidavit purported to be one on behalf of all the respondents had been used before the learned trial Judge. Specific factual allegations having been made and not controverted the same should be deemed to have been admitted. The only statement so long asked to be filed from the side of the petitioner was a statement relating to sales in the month of March, 1986, that is, subsequent to the cancellation of the registration and the hearing of the revisional applications has been kept postponed on the pretext of getting the correctness of such statement verified and calling for explanations from the firm of the concerned petitioner with regard to the report of the Commercial Tax Officer, Ballygunge Charge dated 20th June, 1986 attributing incompleteness to such statement. The extent and nature of incompleteness have nowhere been indicated so as to enable the petitioners to meet such allegation. But in the process, a period of about 4 months have been wasted, though the concerned petitioner has been deprived of his livelihood (vide statements in paragraphs 27, 31 of the writ application, paragraphs 10, 11 of the affidavit-in-opposition and annexure L to ....
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.... the decision in the appeal being affected or influenced in any way. For considering the question of grant of any interim relief or refusal thereof, we have to arrive at findings on well-known and judicially recognised questions relevant on such matter, namely, existence of a prima facie case of arguable issues and balance of convenience. The admitted position is that the cancellation of the certificate of registration had led to the rejection of the petitioner's prayer for obtaining declaration forms with the consequence of completely stopping the petitioner's business. The power for cancellation of registration is to be found in section 7 of the Bengal Finance (Sales Tax) Act, which by sub-section (6), clause (a) thereof provides for cancellation on the ground of discontinuance of business. Since the circumstances under which the power of cancellation of registration had been exercised by the authorities in the instant case cannot be unhesitatingly said to be beyond controversy or proper for such exercise, the legality of exercise of such power is open to question and since admittedly no opportunity had been granted to the concerned petitioner of being heard before such cancel....