GARG GLASS TUBES P LTD Vs. STATE

JUDGEMENT

(1.) A preliminary objection was raised at the time of hearing of the revision application by Mr. Bose regarding the maintainability of the application under Article 227 of the Constitution of India on the ground that the Additional Commissioner, Commercial Taxes, West Bengal, is not a Tribunal within the meaning of Article 227 of the Constitution of India. Mr. Bose based his argument mainly on the interpretation of Sections 3, 3A and 3B of the Bengal Finance (Sales Tax) Act, 1941, and also on the decision of the Supreme Court in the case of Jagannath Prasad v. State of Uttar Pradesh [1963] 14 STC 536. Since the preliminary objection so raised was of some importance, I requested Mr. Sakthinath Mukherjee, a senior counsel of this court, to act as amicus curiae in the matter. Before I deal with the points at issue in the present case, I record my sincerest appreciation of the very valuable assistance rendered by Mr. Mukherjee as amicus curiae.

(2.) Article 227(1) of the Constitution of India runs as follows :

(3.) Now, the question is, whether the Additional Commissioner, Commercial Taxes, West Bengal, is a Tribunal within the meaning of the said article. Let us first of all see what are the functions of the said officer as stated in the Bengal Finance (Sales Tax) Act, 1941. Sub-section (1) of Section 3 of the said Act states that for carrying out the purposes of the said Act, the State Government may appoint a person to be a Commissioner of Commercial Taxes, together with such other persons to assist him as it thinks fit and may specify the area or areas over which they shall exercise jurisdiction. Sub-section (2) of the said Section 3 states that persons appointed under Sub-section (1) shall exercise such powers as may be conferred and perform such duties as may be required by or under the said Act. Sub-section (1) of Section 3A of the said Act states that the State Government may appoint one or more persons to be the Additional Commissioner or the Additional Commissioners of Commercial Taxes. Sub-section (2) of the said Section 3A states that the Additional Commissioner of Commercial Taxes shall have such powers and shall be entitled to exercise such duties of the Commissioner as the State Government may, by notification in the Official Gazette, direct and amongst others, is empowered to exercise the powers conferred by Section 20 apart from other sections of the said Act. Sub-section (1) of Section 3B of the said Act states, inter alia, that with effect from such date as may be notified by the State Government and subject to such rules as may be prescribed, the State Government may constitute a Tribunal to be called the West Bengal Commercial Taxes Tribunal. Clause (a) of Sub-section (3) of Section 20 of the said Act states that subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner may, on his own motion, revise any assessment made or order passed by the person appointed under Section 3 to assist him and Clause (b) of the said Sub-section (3) of Section 20 states that subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner may, upon application, revise any order other than an order referred to in Clause (c) and an order against which an appeal lies under Sub-section (1), passed by a person appointed under Section 3 to assist him. In the Explanation to the said Section 20, it is stated that the word "assessment" as used in the said section includes assessment of tax, surcharge and additional surcharge and imposition of penalty under Sections 5A, 5B, 6A, 11 and 20A of the Act.