BISWA SEN Vs. COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) This Rule is directed against the orders of assessment dated March 9, 1959 (annEx. A to the petition) and February 8, 1960 (annEx. D) and the corresponding notices of demand (annexs. B and E), assessing sales tax for the periods May 1, 1955 to September 4, 1955 and September 4, 1955 to March 31, 1956, respectively. The Petitioner not only wants these orders and notices to be cancelled but also asks for an order in the nature of mandamus directing the Respondents to refund the sums of Rs. 300 and Rs. 3,576 -7 -0 already realised from the Petitioner on the basis of the impugned Orders.

(2.) The Petitioner's case is that the aforesaid assessments have been illegally made on the receipts of the Petitioner from indivisible structural contracts which are not taxable as 'sale'. In respect of the first period, the Petitioner had made an advance payment of Rs. 300 and when the balance was demanded from him, he requested Respondent No. 3 to postpone the demand till the decision of the Supreme Court in a pending case relating to liability to sales tax on building contracts (annEx. C). Notwithstanding this, Respondent No. 2 made the similar order of assessment relating to the next period. In 1960, the Petitioner again made a request to postpone the recovery but on March 14, 1963, Respondent No. 3 demanded the assessed amount (annEx. G). When the Petitioner referred to the Supreme Court decision which had in the meantime been pronounced, Respondent No. 2 started a proceeding under Sec. 14(1) of the Bengal (Finance) Sales Tax Act, 1941 (hereinafter referred to as 'the Act') to ascertain whether the assessment of the Petitioner was liable to be reopened in view of the decision of the Supreme Court, State of West Bengal v/s. Dakshineswar, (1957) 8 S.T.C. 478. judgment referred to in, (1967) 19 S.T.C. 224 (226). The Petitioner appeared before Respondent No. 2 in that proceeding and produced his books of account, but on January 28, 1964, Respondent No. 2 passed an order saying that the Petitioner had failed to satisfy him that the impugned assessment had been made in respect of indivisible structural contracts.

(3.) Against the said order, the Petitioner moved the Assistant Commissioner, but he advised him to seek redress under Sec. 20 of the Act. The Petitioner accordingly applied under Sec. 20(3) to the Additional Commissioner, but the application was rejected on the ground that the Petitioner should have appealed against the order of assessment (annEx. J). The Respondent having resorted to certificate proceedings to enforce the impugned demands by issuing the notices at annEx. K, dated December 14, 1964, the Petitioner obtained this Rule on March 9, 1965, stating that he could not apply earlier owing to serious illness.