GULABCHAND HAREKCHAND Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India. In this application the petitioners ask for a writ of mandamus or prohibition prohibiting the respondents from making any assessment or collecting any tax or further tax on "gudaku" or "guraku" packed or unpacked under the Bengal Finance (Sales Tax) Act, 1941 and the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972. The petitioners also pray for a writ of or in the nature of mandamus calling upon the respondents to make refund of taxes already assessed and collected in respect of "gudaku" or "guraku" sold during the periods 4 quarters ended Chait Sudi 8, 2028, 2029, 2030 and 2031 Sambat year and subsequent periods.

(2.) The case of the petitioners is that petitioner No. 1 is a dealer within the meaning of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Sales Tax Act). The petitioners have been dealing in tobacco brought from outside the State of West Bengal, that is to say, tobacco leaf and tobacco paste popularly known as "gudaku" or "guraku" for use in teeth and also for hookah.

(3.) According to the petitioners, under Item 18 of Schedule I to the Sales Tax Act, tobacco for hookah in any form and under Rule 3(28) of the Bengal Sales Tax Rules, 1941 (hereinafter referred as the "Rules") the sale of tobacco as defined under the Central Excises and Salt Act, 1944 are deductible from gross turnover in calculating taxable turnover. Therefore, such gudaku being a tobacco product cannot be subject to tax, either under the Sales Tax Act as also under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as the Entry Tax Act).