TaxTMI 
TaxTMI 
1990 (7) TMI 358
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....erred an appeal before the Assistant Commissioner, who, inter alia, held that the claim was rightly rejected for non-production of declaration forms obtainable from registered purchasing dealers. He relied on the decision in [1965] 16 STC 607 (SC) (Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer). Assessee's revision against that order was rejected by the Additional Commissioner by an order dated April 10, 1973. The assessee thereupon filed a second revision in the West Bengal Commercial Taxes Tribunal. Mr. A.K. Roy, a single Member of that Tribunal allowed the Revision Case No. 59B of 1973-74 by an order dated August 10, 1979. He held that the decision in [1965] 16 STC 607 (SC) (Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer) was not applicable to this case, being a case of best judgment assessment. He referred to his own decision in Revision Case Nos. 20 and 21 of 1977-78 and then considered the assessee's claim under section 5(2)(a)(ii) and upon a best judgment estimation allowed the claim partly to the extent of Rs. 1,25,000 only. This order dated August 10, 1979, is challenged before us. 3.. The applicant's case is that the Tribunal below er....
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....he prescribed authority duly filled up and signed by the registered dealer to whom or by the owner or representative of the undertaking to which the goods are sold." Rule 27A of the Bengal Sales Tax Rules, 1941, as it stood then substantially laid down that a dealer claiming deduction under section 5(2)(a)(ii) shall be required to produce, on demand, the relevant cash memo or bill, as the case might be, and declaration in form XXIV duly filled in and signed by the purchasing dealer or by his authorised representative. 6.. The matter was heard in full on July 10, 1990 and the judgment was reserved. It was announced through the current week's list that the judgment will be delivered on July 27, 1990. Meanwhile, Mr. Das, learned advocate for the respondent No. 1, mentioned the matter on July 25, 1990 and on consent of the other side he was permitted to argue. Then on that date he submitted arguments questioning the maintainability of the application, contending that the Tribunal below, being the revisional authority, was competent to exercise the power of the assessing officer and praying for a remand so that the Commercial Tax Officer can make a fresh assessment. We also heard ....
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....ad already been settled by the Supreme Court, but the Tribunal below erroneously distinguished and failed to follow that decision. 8.. The next point urged by Mr. Das is that the applicants and the Tribunal below come within the expression "State" in article 12 and, therefore, the applicants could not be competent to invoke the jurisdiction under article 226 against the State, i.e., the Tribunal below. Mr. Majumdar contended that the Commissioner is one of the applicants in this case and section 21 of the 1941 Act authorises him to invoke the reference jurisdiction. There is no bar to invoking the jurisdiction under article 226 by the Commissioner or any other applicant for challenging the decision of the Tribunal below. Mr. Das referred to pages 427 and 428 of D. Basu's Shorter Constitution of India, 9th edition, and argued that a State cannot challenge the validity of its own order mainly on the general principle of estoppel. It is now settled that anybody prejudicially affected by the act or omission of the authority which is challenged can apply for a writ under article 226 (see Gadde Venkateswara Rao v. Government of Andhra Pradesh AIR 1966 SC 828). In the present case, wri....
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....f injustice and amount to denial of justice, if he is thrown out of court on the supposed ground that the remedy under article 226 is not available to him or to the State. Article 226 itself is significantly silent on this question. We do not see any reason to deny the remedy to the Commissioner. We may cite the cases of Union of India v. State of Mysore AIR 1977 SC 127 and Election Commission v. State of Haryana [1984] Supp SCC 194; AIR 1984 SC 1406 in support of the view we are taking that a "State" is not debarred from invoking the remedy under article 226 in suitable cases. 9.. The third point taken by Mr. Das against maintainability of the application is that it suffers from misjoinder of parties. According to him, the Commercial Tax Officer, the Assistant Commissioner and the Additional Commissioner are not necessary nor proper parties and particularly so, because they were the quasi-judicial authorities below the West Bengal Commercial Taxes Tribunal whose order is challenged in this application. Mr. Majumdar opposed this contention. Assuming that the application is suffering from misjoinder, this point does not make the application not maintainable. Those who may ....
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....Rules, 1947. The provisions in the Orissa Act and the Orissa Rules were materially different from those in the Bengal Act and the Bengal Rules. The particular provision in the proviso to section 5(2)(a)(ii) of the Bengal Act was not to be found in the Orissa Act. Moreover the words-"on demand"-used in rule 27A of the Bengal Rules were absent from the Orissa Rules. The Supreme Court held in [1964] 15 STC 641 (SC) (State of Orissa v. M.A. Tulloch and Co. Ltd.): "It is plain from the terms of section 5(2)(a)(ii) that a selling dealer is entitled to a deduction in respect of sales to a registered dealer of goods, if the goods are specified in the purchasing dealer's certificate of registration as being intended for resale by him in Orissa. No other condition is imposed by the above section." In [1965] 16 STC 607 (SC) (Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer) the court considered the decision in [1964] 15 STC 641 (SC) (State of Orissa v. M.A. Tulloch and Co. Ltd.) and distinguished the same on the ground that the provisions of the Orissa Act were materially different with particular reference to the proviso to section 5(2)(a)(ii) of the Bengal Act. It was held....
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....at the appellate authority was virtually in the same position as the Sales Tax Officer and there was no provision for issuing notice to the Sales Tax Officer for being heard in the appeal. Accordingly, it was held that what the Assistant Commissioner did was not without authority. But in the present case, this general proposition of law cannot be, applied in view of the provisions of section 5(2)(a)(ii) of the Bengal Act and rule 27A of the Bengal Rules and also in view of the decision in [1965] 16 STC 607 (SC) (Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer), holding that the assessee is not entitled to deduction under section 5(2)(a)(ii), when he fails to produce declaration forms on demand, that is to say, at the stage of initial assessment. The mandatory nature of the provisions in the 1941 Act and the Rules clearly ruled out any authority of the Assistant Commissioner to accept declaration forms produced for the first time before him in the appeal. We, therefore, hold that the Assistant Commissioner in the present case had no jurisdiction or authority to entertain the declarations at the appeal stage and he rightly refused to entertain the declarations. It ....