SAJJAN KUMAR SHARMA Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) The appellant/petitioner's goods were being transported from West Bengal to Assam in course of a sale. Before it crossed the border, the goods were seized by the authorities under the West Bengal Sales Tax Act, 1994 (State Act) on the allegation of violation of the provisions of the State Act. The goods were, however, subsequently released on certain conditions. The goods, thereafter, had reached the destination at Assam. The petitioner had moved this High Court in writ Jurisdiction for quashing the proceedings of the impugned seizure and imposition of penalty. The seizure was effected on 9th September, 2001. The penalty was imposed on the same day viz: 9th of September, 2001. These are the two aspects in respect of the said transaction, which were under challenge in the writ Petition. The learned single Judge was pleased to dismiss the writ Petition on the ground that by reason of West Bengal Taxation Tribunal Act, 1987 (1987 Act), the jurisdiction of this Court has since ceased and exclusively conferred on the learned Tribunal constituted under the 1987 Act. Against this order, this appeal has since been preferred.

(2.) Mr. Mihir Lal Bhattacharyya, the learned senior counsel for the appellant, submits that this is a sale in course of inter-State trade or commerce (inter-State sale), which is occasioned with the movement of the goods in terms of section 3 of the Central Sales Tax Act, 1956 (Central Act). The seizure of the goods was made with the object of enforcement of the provisions of the Central Act and for prevention of evasion of tax collectable under the Central Act. The Central Act in sub-section (2) of section 9 provides that the authorities under the State Act have jurisdiction for enforcement and advancement of the object and purpose of the Central Act in exercise of the authority conferred upon them under the State Act unless there is specific and express provision made in the Central Act or the Rules framed thereunder. He also points out from Rule 11 of the Central Sales Tax Rules, 1958 (Central Rules) that the provision of the State Act and the Rules made thereunder shall apply mutates mutandis to all proceedings and other matters incidental to the carrying out of the purposes of the Central Act for which no provision is made in the Central Act and the Rules made thereunder or under the Central Sales Tax (Registration and Turnover) Rules, 1957. According to Mr. Bhattacharyya, by reason of this provision, a legal fiction has since been created and it is, in effect, a legislation by adoption. Therefore, if any steps are taken by the authorities under the State Act under the provision of the State Act in order to carry out the purpose of the Central Act, by legal fiction, the same would be deemed to be an action taken under the Central Act and not under the State Act. Therefore, as soon any steps are taken under the State Act by the authorities created thereunder in respect of the sale occasioned by the Central Act, by legal fiction, it becomes an action taken under the Central Act. In terms of section 5 of the 1987 Act, the Tribunal has jurisdiction to deal with matters governed by the State Acts specified in the Schedule. As such, the inter-State sale, which is governed by the Central Act, cannot be subject matter before the learned Tribunal. Therefore, the judgment seems to be perverse. He, therefore, prays that the order appealed against should be set aside.

(3.) In support of his contention, he had relied on the decisions in Sitaram Sree Gopal v. Certificate Officer, 24-Parganas, 1977(4) Sales Tax Cases 124 (Cal); Overseas Packaging Industries P. Ltd. v. West Bengal Commercial Tax Tribunal & Ors., 1989 (22) Sales Tax Advices 422; Amitava Mitra v. State of West Bengal & Ors., 2001 (123) Sales Tax Cases 129; and State of A.P. v. National Thermal Power Corporation Ltd. & Ors., (2002)5 SCC 203.