STATE OF WEST BENGAL Vs. SATYESH CH LAHIRY

JUDGEMENT

(1.) The State of West Bengal and the commercial tax authorities have preferred these three appeals under Clause 15 of the Letters Patent, being aggrieved by a common judgment and order dated 19th June, 1974, passed by a learned single Judge of this Court disposing of three writ petitions. The facts are not in dispute and may be set out shortly.

(2.) The respondents, who are common in all these three appeals, are a firm of building contractors. They, having been assessed to sales tax on certain transactions, were made to pay sales tax with the commercial tax authorities. These were the assessments for the periods: (1) three quarters ending 30th September, 1950, (2) four quarters ending 30th September, 1951, and (3) four quarters ending 30th September, 1954. Such assessments were set aside by the Board of Revenue by an order dated 12th December, 1961, and the Board of Revenue directed reassessment on an adjudication as to whether and how far the respondents would be liable for such sales tax in the light of a Supreme Court decision that indivisible structural contracts do not constitute sale. As a result of the assessment thus directed by the Board of Revenue, the Commercial Tax Officer made the reassessment. In making the reassessment, the Commercial Tax Officer found as follows: Copies of contract orders and bills of sales in support of the statement were produced. Those were test checked. No further instance of sale of materials other than those noted above were detected. The dealer's claim is held to have been the proceeds on indivisible structural contracts except Rs. 3,067-4-6. The gross turnover is, therefore, determined at Rs. 3,067-4-6 and the balance Rs. 9,22,024-15-0 is accepted to be the proceeds of indivisible structural contracts not amounting to 'sales'.

(3.) It is not in dispute that, on such reassessment, three sums, being Rs. 10,037.62, Rs. 21,908.03 and Rs. 26,589.91, were determined to be the excess amount of taxes earlier paid by the respondents for the aforesaid three periods. Accordingly, a notice in form VII was issued under Section 11(3) of the Bengal Finance (Sales Tax) Act, 1941, showing such excess payment of the tax. Such reassessment was made on 8th December, 1965, and on 11th December, 1965, the respondents filed three applications under Rule 59 read with Section 12 of the said Act. The appellants, however, failed to discharge their statutory duties in disposing of these applications in terms of Rules 61 and 62 of the Rules or grant the refund under Rule 63 thereof. Thereupon, the respondents moved this Court with three writ petitions out of which the present appeals arise for issue of an appropriate writ directing the appellants to refund the excess amounts paid by them by way of sales tax. These applications succeeded and the learned single Judge, having directed such refund, the appellants have preferred the present appeals.