KAPUR BROTHERS Vs. COMMERCIAL TAX OFFICER AND ANOTHER

JUDGEMENT

(1.) THIS is an application by Messrs. Kapur Brothers, a partnership firm, with a prayer for a writ of or in the nature of certiorari to quash the order of assessment of sales tax for the year 1361 B.S. The rule was issued as early as the 18th December, 1956, with provisions for interim stay of the order for realisation of the tax upon the applicant furnishing security. No security, however, was furnished. The application is made under Article 226 of the Constitution.

(2.) THE order of assessment is dated the 26th October, 1956. The notice of demand under section 11(3) of the Bengal Finance (Sales Tax) Act was given on the 3rd November, 1956. At this stage the applicant made a petition dated the 29th November, 1956, for a certified copy of the order of assessment with a view to file an appeal under section 20 of the Act. It is now said that the statutory provision for appeal which the applicant wanted to avail is both illegal and ultra vires. Between the demand on the 3rd November, 1956, and till the petition of the 29th November, 1956, asking to be excused form paying or depositing the sum of Rs. 29,458-11-6 as the additional tax, no step was taken by the applicant within any reasonable time either by answering the demand of the 3rd November, 1956, or by coming to this Court. The Commercial Tax Officer informed the applicant that realisation could not be stayed unless directed by the Assistant Commissioner under rule 80(B) of the Act. Six days thereafter, the applicant moved this Court on the 18th December, 1956, and obtained the Rule. The Rule gave an interim stay upon the applicant furnishing security, but the applicant did not furnish security and, therefore, did not avail of the interim order staying the realisation of tax granted by the Rule. In the meantime the time to file an appeal under section 20 of the Act expired on the 3rd January, 1957, while the Rule was pending.

(3.) LEARNED counsel's contention on behalf of the applicant is threefold. He says, first, that there is no statutory authority for an appeal being heard by the Assistant Commissioner. His second point is that on the merits the assessing authority made a mistake in not allowing the exemptions claimed by him. His third point is that the assessment of sales tax on the amount realised by a registered dealer from a transaction outside Bengal on account of inter-State sales was illegal. I shall deal with these objections seriatim.