TaxTMI 
TaxTMI 
2013 (10) TMI 136
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....er, the classification of the 'motrin' should be considered as insecticide and 'harpic' as pesticide and have been assessed at such between the period from 2005-2006 to 2009-2010. The petitioner was served with a notice dated 30.05.2012 issued by the respondent no.2 i.e. Deputy Commissioner Central Audit Unit, Office of Commissioner, Commercial Taxes informing that the books of accounts in respect of the returns for the assessment year 2010-2011 have been selected for audit under Section 43 of the West Bengal Value Added Tax Act (Vat Act). The Audit reported dated 30.04.2013 suggest the classification adopted by the petitioner does not fall within Entry 22 of Part-1 of Schedule-C of the Vat Act as they are neither the insecticide nor the pesticide. The report also contains the computation of the tax payable by the petitioner and the demand of the even date in Form 27 was also prepared. Both the report and the demand were duly served on the petitioner which are assailed in this writ petition. The petitioner relies upon a judgment of the Supreme Court in case of Sonic Electrochem & Another -vs- Sales Tax Officer & Others reported in (1998) 6 SCC 397, in support of his contention tha....
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....dered the respective submissions of the parties, one must find the genesis of the constitution of the taxation tribunal which could be deciphered from the object for which it is constituted. The West Bengal Taxation Tribunal Act, 1987 was enacted with a view to expedite the disposal of disputes in relation to the assessment of taxes, imposition of penalties and allied matters under specified State Act. The said tribunal is constituted in exercise of the powers conferred by Article 323B of the Constitution of India. Section 5 of the Taxation Tribunal Act contains the provision for its applicability in relation to all matters of adjudication of any disputes, complaints or offences with respect to levy, assessment, collection and enforcement of any tax under any specified State Act. The specified State Act has been defined under Section 2 (k) to mean a State Act mentioned in the Schedule. The Schedule indisputably contains the West Bengal Value Added Tax Act, 2003 which was brought by the West Bengal Act 4 of 2005 with effect from 01.04.2005. Section 6 of the Taxation Tribunal Act deals with a jurisdiction, powers and authority of the tribunal and excludes the jurisdiction of all Cou....
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....ised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14,15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitu....
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....ers. The Tribunals are constituted to discharge the functions supplementarily subject to the scrutiny by the Division Bench of the High Court, in respect of the matters provided under Section 5 of the Taxation Tribunal Act passed under any specified State Act. In view of the clear pronouncement of law by the Apex Court in case of L. Chandra Kumar (supra), the matter under the specified Act and defined under Section 5 of the Taxation Tribunal Act cannot be assailed directly before the High Court before approaching the tribunal. It leads to a further ancillary point whether the order complained in this writ petition is covered under Section 5 of the Taxation Tribunal Act or not. It would be pertinent to quote the provisions of Section 5 of the Taxation Tribunal Act which reads thus: "5.The State Acts to which this Act shall apply- This Act shall apply to every State Act specified in the Schedule to this Act with effect from the date on which such State Act is so specified, and the Tribunal, save as otherwise expressly provided under such State Act and subject to the other provisions of this Act, shall exercise jurisdiction, powers and authority in relation to all matters of adjudi....
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....evy" with an "assessment" as well as with the collection of a tax when it held that " when the payment of tax is enforced, there is a levy". We think that, although the connotation of the term "levy" seems wider than that of "assessment", which it includes, yet, it does not seem to us to extend to "collection". Article 265 of the Constitution makes a distinction between "levy" and "collection". We also find that in N.B. Sanjana, Assistant Collector of Central Excise, Bombay and Others -vs- The Elphinstone Spinning and Weaving Mills Co. Ltd., this Court made a distinction between "levy" and "collections" as used in the Act and the rules before us. It said there with reference to Rule 10: "We are not inclined to accept the contention of Dr. Syed Mohammad that the expression 'levy' in Rule 10 means actual collection of some amount. The charging provision Section 3(1) specifically says: There shall be levied and collected in such a manner as may be prescribed the duty of excise...........It is to be noted that sub-section (i) uses both the expressions 'levied and collected' and that clearly shows that the expression 'levy' has not been used in the Act or the Rules as meaning actual co....