SURESH CHANDRA BOSE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner is a Sanitary Engineer and works as the Sanitary Contractor under the name and style of "M/s. S. C. Bose" at No. 309, Bowbazar Street, Calcutta. In the year 1950 the petitioner filed an application under Section 7 (2) of the Bengal Finance (Sales Tax) Act, 1941 for making himself registered as a registered dealer under the said Act. The petitioner states that the petitioner got himself registered under a mistaken impression that the petitioner was a dealer under the said Act and was liable to pay the tax under the provisions of the said Act and the Rules made thereunder. On that basis the petitioner duly filed returns from 1951 to 1958 and along with the returns paid a sum of Rs. 18,812.45 p. on account of sales tax. The petitioner states that the same was paid on a mistaken notion of law. As a result of the decision in the case of Dukhineswar Sarkar and Brothers v. Commercial Tax Officer, (1957) 8 STC 478 = (AIR 1957 Cal 238) and the decision of the Supreme Court in the case of State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., ft became apparent that the petitioner was not a dealer and the Rule 2 (ii) (c) of the Bengal Sales Tax Rules, 1941 under which the petitioner was assessed was declared to be void and ultra vires. In the premises, the petitioner became entitled to refund of the Sales Tax already paid and was entitled to have his registration certificate cancelled. The petitioner stated that the petitioner, thereafter, submitted for the years 1959, 1960 and 1961 returns declaring no sales or turn over. On the 10th of April, 1962 the petitioner wrote a letter to the Commercial Tax Officer, Colootolla Charge requesting him to cancel the certificate of registration on the ground that the petitioner was a Contractor and not a Dealer within the meaning of the said Bengal Finance (Sales Tax) Act, 1941 and as such his registration should be cancelled. The petitioner was informed in reply by the Commercial Tax Officer on the 26th of May, 1962 that the said question of cancellation of the certificate of registration would be considered on completion of pending assessments. The petitioner states that the petitioner made a further representation to the said Commercial Tax Officer stating that the said Rule 2 (ii) (c) of the Bengal Sales Tax Rules, 1941 having been declared ultra vires by the Supreme Court, the said officer was acting in excess of and/or without jurisdiction in proceeding to assess the petitioner under the said Act. The petitioner states that the said representation proved abortive and the Commercial Tax Officer issued a notice in Form VII A under Rule 55 (A) of the Bengal Rules calling upon the petitioner to show cause as to why penalties should not be imposed upon the petitioner for non-payment of the arrears of tax for the years 1955, 1956 and 1957, ending on the 31st of March of each year. Then on the 15th of June, 1962, the petitioner submitted an application before the Commercial Tax Officer stating that the assessments made under Rule 2 (ii) (c) of the Bengal Sales Tax Rules, 1941 were ultra vires and as such the assessments were without jurisdiction and requested Commercial Tax Officer to withdraw the said notices. The Commercial Tax Officer did not accede to the request made by the petitioner, the petitioner moved an application under Article 226 of the Constitution of India and obtained a rule nisi being Rule No. 388(W) of 1962. The said rule was ultimately discharged by this Court on the 6th of January, 1965 by the learned Single Judge.

(2.) Being aggrieved with the said decision the petitioner preferred an appeal and the appeal came up for hearing and was disposed of by the bench decision of this Court on the 6th of January, 1962. The Division Bench observed, inter alia, as follows :--

(3.) The petitioner states that in view of the aforesaid decision the petitioner was advised that the said assessments having been made on the basis that the petitioner was a dealer and not a contractor, were all invalid and the money paid by the petitioner in respect of the assessments became refundable to the petitioner. In the premises, the petitioner sent a letter to the Secretary, Department of Finance, West Bengal, Calcutta on the 2nd of May, 1972 claiming the refund of the said amount of Rs. 18,812.45 p. No reply was received by the petitioner. On the contrary steps were taken for realisation of the dues on the basis of the assessment for the years 1963, 1964 and 1965 and certain proceedings have been taken which have been mentioned in Annexure 'D' of the petition. Thereafter, the petitioner made an application for cancellation of the registration certificate which was cancelled by the Commercial Tax Officer with effect from 22nd of August, 1972. On the 1st of September, 1972 the petitioner made seven sets of applications before the Commercial Tax Officer Colootola Charge, claiming refund of diverse amounts of taxes realised illegally and/or without any authority of law from him, according to the petitioner, as set out below :-- <FRM>JUDGEMENT_110_AIR(CAL)_1976Html1.htm</FRM>