DINESH CHANDRA BHATTACHARYYA Vs. MEMBER BOARD OF REVENUE

JUDGEMENT

(1.) This is an appeal against an order dated August 19, 1964 passed by Sinha, J. rejecting an application under Article 226 of the Constitution of India and refusing to issue a rule nisi upon that application.

(2.) The short facts of the case are as follows. The petitioners carry on the business of structural contractors & builders under the trade name of Messrs D. C. Bhattacharjee and Co. On February 25, 1959 the petitioners-appellants were assessed by the Commercial Tax Officer, 24 Par-ganas under the Bengal Finance Sales Tax Act 1941 for the period from November 22, 1954 to April 10, 1956. The turnover of the assesses for the relevant period was Rs. 87,380. In computing the tax on that turnover the Commercial Tax Officer worked on the principle of taxation which is incorporated in Rule 2(2) of the Bengal Sales Tax Rules, 1941. Almost two years before this order of assessment was passed, Rule 2(2) of the Bengal Sales Tax Rules, 1941 had been struck down as bad, illegal and ultra vires the Constitution by a judgment passed by Sinha, J. in the case of Messrs. Dakshineswar Sarkar and Brothers Ltd. The judgment by which the aforesaid rule was declared illegal had been passed on January 18, 1957. Apparently, the Government of West Bengal went on appeal from that order and at the relevant time an appeal preferred by the Government of West Bengal was pending before the Supreme Court. It appears that in making the assessment the Commercial Tax Officer completely ignored the fact that the relevant rule under which he was making the assessment had been declared ultra vires by the Calcutta High Court. The assessment order ot the Commercial Tax Officer is annexed to petition. It is apparent from the order that the Commerical Tax Officer did make the assessment under Rule 2(2) of the Bengal Sales Tax Rules, 1941. On April 23, 1959 a demand notice in Form 7 dated 26/27th February, 1959 was served on the petitioners. That demand notice contained a post-script in the following terms: "You are at option to pray for stay of the dues till the decision of the Hon'ble Supreme Court in the case of Messrs. Dakshineswar Sarkar and Brothers." The Supreme Court judgment in the case of Messrs. Dakshineswar Sarkar and Brothers Ltd. was delivered on February 17 1960. By that Judgment the Supreme Court upheld the decision of the Calcutta High Court to the effect that the aforesaid Rule 2(2) of the Bengal Sales Tax Rules, 1941 was illegal and ultra vires the Constitution. The petitioners state that they expected that after the decision of the Supreme Court the Commercial Tax Officer would revise his decision and relieve the petitioners of the assessment which had been made illegally and without authority of law. But the Commercial Tax Officer took no notice of the decision of the Supreme Court. The petitioners on November 11, 1960, preferred an appeal to the Assistant Commissioner of Commercial Taxes, Howrah Circle, who dismissed the appeal on the preliminary ground that it was barred by limitation. Thereafter the petitioners filed a petition for revision before the Commissioner of Commercial Taxes, West Bengal, who also rejected the petitioners petition on the ground that the petition had been delayed and there was no obligation on the Appellate authority to condone the delay for finding out if the levy of tax had been done in contravention of the principles laid down by the Supreme Court- The petitioners thereafter made a petition for revision before the Board of Revenue, West Bengal, but the Member, Board of Revenue also dismissed the petitioners petition on the same ground of delay on May 6, 1964. The petitioners thereafter made an application under Article 226 of the Constitution before Sinha J. and asked for a Rule nisi calling upon the respondents to show cause why a writ of certiorari should not issue quashing the orders or resolution or proceedings relating to the aforesaid assessment and for an injunction restraining the respondents from realising the tax. Sinha, J. rejected the petition and refused to issue the Rule nisi. Sinha, J. did not deliver any judgment but in the order that has been drawn up there is a mention that Sinha, J. was of the opinion that the petitioners' right to appeal or revision in the Courts below had been barred by limitation.

(3.) The main ground urged by Mr. Chakra-vartti who appeared for the appellants was that the order dated February 25, 1959 passed by the Commercial Tax Officer was a nullity. Long before that order had been passed, Rule 2(2) of the Bengal Sales Tax Rules, 1941 had been struck down by the Calcutta High Court as illegal and ultra vires the Constitution of India. Therefore, for all legal purposes the provisions contained in that Rule were not law at all and the order of the sales tax officer was ab initio null and void. The Commercial Tax Officer as well as the whole hierarchy of the appellate or revisional authorities who have been hearing applications in revision against that order of the Commercial Tax Officer exceeded their jurisdiction when they confirmed the order of the Commercial Tax Officer. We are of the opinion that this particular contention of the appellant is one which should have been adjudicated fully after the issue of a Rule nisi. It is true that the petition has not been satisfactorily drafted. Even the grounds on which the petition has been moved do not make it absolutely clear that the main ground on which the appellants were challenging the various orders with instant petition was that the original order of the Commercial Tax Officer was a nullity. Our attention has been drawn to ground (F) in paragraph 13 of the petition which runs as follows: "'(F) For that the order ot the authorities including Board of Revenue is hit by Articles 19 and 265 of the Constitution and any tax paid or realised should be refunded to the petitioners." Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. After the order of Sinha, J. in the case of Messrs, Dakshineswar Sarkar and Brothers Ltd. by which Rule 2(2) of the Bengal Sales Tax Rules, 1941 had been declared ultra vires and illegal, that particular Rule could no longer be described as law. Therefore, that Rule could not be invoked either for the levy of any tax or for the collection of any tax. Mr. Basak appearing for Government submitted that the Commercial Tax Officer had no option but to assess the petitioners under Rule 2(2) of the Bengal Sales Tax Rules, 1941 pending the hearing of the appeal of the State Government against the decision of Sinha, J. as in default of such assessment if the State Government had succeeded in its appeal the Commercial Tax Officer could not have assessed the petitioner as by that time the assessment would have been time-barred. Mr. Basak also refers to the note added as a postscript given by the Commercial Tax Officer in his demand notice dated 26/27th February, 1959 by which the assessees were advised to pray for stay of the dues "till the decision of the Hon'ble Supreme Court in the case of Messrs. Dakshineswar Sarkar and Brothers". Mr. Basak obviously wanted to rely on this as showing the complete bona fide of the Commercial Tax Officer. T must say I was not at all impressed by this argument. To my mind, the postscript indicated, on the other hand, complete lack of bona fide on the part of the Commercial Tax Officer. It shows that when the Commercial Tax Officer passed the assessment order he knew that the Calcutta High Court had already declared Rule 2(2) as illegal and ultra vires the Constitution of India. He should not, therefore, have passed the assessment order under that particular Rule, i.e. to say, his order should have been in favour of the petitioners against the State Government. If the State Government wanted to have an opportunity for assessing the petioners after the decision of ifs appeal before the Supreme Court, it was tor the State Government to make an appeal against the order of the Commercial Tax Officer. Instead of leaving it to the State Government to go on in appeal, the Commercial Tax Officer took the extraordinary alternative of passing a palpably illegal order with full knowledge and realisation that this was an illegal order. This is a conduct which cannot be justified by any argument. If administrative tribunals could ignore the law declared by the highest Court in the State in such deliberate and non-chalant manner that would be the severest possible blow to the administration of law and justice in the country. This point has been emphasised in a recent decision of the Supreme Court in East India Commercial Co. Ltd. Calcutta v. Collector of Customs, Calcutta. Subba Rao, J. in delivering the majority judgment of that Court deals with the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate proceedings in direct violation of the law so declared ana makes the following observation :--