KARTICK CHANDRA JANA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioners are stated to be cloth merchants and carrying on business under the trade name of '"nandalaya". They are registered dealers under the bengal Finance (Sales Tax) Act of 1941 (hereinafter referred to as the Act ). It appears that the Commercial Tax officer, Midnapore filed a Certificate against the petitioners for realisation, of a sum of Rs. 2287. 81 being the liability under the Act for the period ending 31st chaitra, 1363 B. S. The petitioners preferred an objection under the Public demands Recovery Act contending inter alia that no proper notice was served upon the petitioners and hence the assessment was illegal and the Certificate was liable to be cancelled on that ground. The objection did not prevail over the Certificate Officer and on appeal, the Additional Collector, Midnapore confirmed the decision of the certificate Officer holding inter alia that it is beyond the jurisdiction of the certificate Officer to pronounce a judgment as to whether there has been any procedural defect in the assessment of sales tax. The petitioners thereafter served a notice dated 18th March, 1963, under Section 80 of the Code of Civil procedure It was alleged in the said notice that the assessment for the relevant year was illegal and void and consequently the certificate was illegal after expiry of the statutory period a suit was instituted in the Court of its second Munsif, Midnapore, against the state of West Bengal, being other Suit no. 127 of 1963. In the said suit, one of the contentions raised was that the assessment was illegal as no notice was ever served upon the petitioners and the petitioners were not given any opportunity to defend their case at this time of assessment made by the Commercial tax Officer. The State of West bengal, being the defendant in this said suit, in spite of due service of this notice, did not file any written statement and did not contest the said suit. The learned Munsif, Midnapore, in these circumstances decreed the suit exports holding inter alia that the statement regarding the non-service of the notice has not been challenged and in the absence of any evidence to the contrary the assessment must be held to be without notice and illegal. The certificate issued on the basis of such assessment was also held to be illegal and was therefore cancelled. The state of West Bengal thereafter made an application for setting aside the exparte decree. The said application being Misc. Judicial Case Na, 32 of 64 was also dismissed on contest as no sufficient reasons were shown by the State of West Bengal for non-filing of the written statement in the course of seven months. The State of West Bengal thereafter did not go higher up against the said order.

(2.) ALTHOUGH the said certificate was cancelled by the judgment and decree in the other Suit No. 127 of 1965, another certificate dated 28th December, 1964 being Certificate No. 12-S. T. at 1964-65 for the like amount being the sales tax payable for the same period was again filed. The petitioners filed an objection under the Public Demands recovery Act contending inter alia that in a suit filed under Section 34 of the said Act, the Learned Munsif had can celled the earlier certificate for the same amount and for the some period upon a finding that the assessment was illegal. The Certificate Officer by his order dated 31st May, 1965, set aside the demand holding inter alia that in view of the finding of the Civil Court a fresh certificate for the same demand does not lie. On an appeal the additional District Magistrate, Midnapore, restored the certificate and set aside the order of the Certificate Officer. According to him the Civil Court cancelled the Certificate only and not the assessment of the sales tax which could have been annulled only by appellate authority under Section 20 of the1 Act. On a revision against the said order, the commissioner, Burdwan Division by his order dated 18. 12. 1965 set aside the appellate order of the Additional District magistrate and upheld the order of the Certificate Officer. The State of west Bengal thereafter moved in revision the Board of Revenue. The Additional Member, Board of Revenue, by his order dated 9. 7. 1970 upheld the order of the Additional District Magistrate and restored the Certificate there by setting aside the order of the Commissioner burdwan Division. According to him the declaration made by the civil Court that the assessment was illegal was to be taken only as an obiter dictum and not binding on the authority under the Act or the Public demands Recovery Act. The fact that an earlier certificate was set aside on the ground of its invalidity does not prohibit the filing of a fresh certificate on the basis of another requisition against a party legally liable for the certificated demand. Aggrieved by the said order of the Additional Member, board of Revenue, the petitioners moved this court and obtained a rule nisi.

(3.) THE main question which arises for consideration is whether in a suit instituted by the petitioners in the Civil court challenging the legality of the certificate, the Civil Court is excluded from deciding the question as to whether the assessment is illegal on the ground that no notice was served upon the petitioners. The determination of this question depends to a large extent on the relevant provisions of the Act under consideration. The Act has pro vided a detailed and a complete machinery for preferring an appeal and revision against an assessment made under the Act. The question of law arising out of the Board's order which has been made the final revisional authority under the Act may be referred to the High Court for its decision. Section 19 expressly precludes the civil Courts from calling into question any assessment made and any order passed under the Act except in the manner laid down under Section 21 of the Act by way of reference on questions of law arising out of the Board's order. In the context of this specific provision of the Act one has to consider the extent of the ouster of the jurisdiction of the civil Court by the statutory tribunal constituted under the Act. A comparison with the other statutory provisions may not be of much assistance in the solution of the problems except in the ascertainment of the general principles underlying such provisions.