BISWANATH JHUNJHUNWALLA Vs. COMMERCIAL TAX OFFICER LYONS RANGE

JUDGEMENT

(1.) This appeal is directed against the judgment of a learned single Judge, whereby the learned Judge discharged the rule nisi obtained by the appellant on his application under Article 226 of the Constitution.

(2.) The appellant deals in gunny bags and is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941, hereinafter referred to as the Act. In the writ petition out of which the said rule nisi arose, the appellant challenged the propriety and validity of two notices dated 7th November, 1974, and 7th December, 1974, issued by respondent No. 2, the Assistant Commissioner of Commercial Taxes, Chowringhee Circle, by which he proposed to reopen and reassess the sales tax payable by the appellant for the periods, namely, 4 quarters ending Chaitra Sudi 8, 2023, and 4 quarters ending Chaitra Sudi 8, 2024. The assessments for the above periods had been completed by the assessment orders dated 17th February, 1969, and 26th March, 1969, respectively of the Commercial Tax Officer. The reasons for reopening the assessments as stated in the impugned notices are that for the period, namely, 4 quarters ending Chaitra Sudi 8, 2023, the Commercial Tax Officer had wrongly allowed a taxable sale of Rs. 26,68,500 under Section 5(2) (a)(iii) of the Act as sales to a registered dealer named M/s. Luxmi Narayan Jute Mfg. Co. Ltd., but that was not supported by any declaration forms. In the subsequent period, namely, 4 quarters ending Chaitra Sudi 8, 2024,. the deduction granted was Rs. 48,01,200 as sales to the said registered dealer and that also was not supported by any declaration forms. In both the cases it was proposed to levy tax at the rate of 6 per cent on the amounts of taxable sales. The principal contention of the appellant in the writ petition was that there was initial lack of jurisdiction on the part of respondent No. 2 to issue the impugned orders and that the conditions precedent to the issue of the same were not fulfilled. The learned Judge came to the finding that there was no want of jurisdiction on the part of respondent No. 2 in issuing the said notices. In that view of the matter, he discharged the rule nisi. Hence this appeal.

(3.) During the pendency of this appeal, the appellant filed an application, praying for permission to agitate some new grounds at the hearing of the appeal. This Court, after hearing the learned Advocates of both sides, by its order dated 1st July, 1977, granted the permission as prayed for. In view of the said order, the appellant has urged certain new points. The first point relates to the constitutional validity of Sub-section (1) of Section 26 of the Act as substituted by Section 4(1) of the Bengal Sales Tax Ordinance, 1973. Sub-section (1) of Section 26 of the Act as substituted is as follows: 26. (1) The State Government may make rules, with prospective or retrospective effect, for carrying out the purposes of this Act.