BHAGAWAT SAWRUP GUPTA Vs. COMMISSIONER OF TAXES ASSAM

JUDGEMENT

(1.) BY this writ application under article 226 of the Constitution of India, the petitioner has challenged the validity of letter No. KGS-95/80-81/303-342 dated 7th February, 1981 (annexure A to the writ petition along with annexure B), issued by the Superintendent of Taxes, Gauhati, Circle No. 1, respondent No. 2, relating to import of taxable goods into the State of Assam by road.

(2.) THE case of the petitioner is that he is a businessman and is carrying on the business of selling, purchasing, supplying, storing or otherwise disposing of goods, viz. , automobile spare parts, hardware, electrical goods, machinery parts and spares and general stores under the name and style of M/s. Allied Auto Agencies. In the course of business, the petitioner used to purchase the goods and store the same for the purpose of selling, after importing them from outside the State of Assam. Besides, the petitioner also used to purchase materials within the State of Assam as and when necessary. The petitioner is also a registered dealer under the Central Sales Tax Act, 1956, the Assam Finance (Sales Tax) Act, 1956, and the C, for the purpose of purchasing, selling and storing the goods aforementioned.

(3.) MR . O. P. Bhati, the learned counsel for the petitioner, has urged the following points in support of the petition : (a) the contents of annexure A appears to be a direction to the dealer including the "petitioner" who has not been empowered to issue such directions either under rule 74 of the Assam Finance (Sales Tax) Rules or under any other provisions of the Assam Finance (Sales Tax) Act, 1956, hereinafter referred to as "the Act" and "the Rules", to impose a permit for the dealers intending to import finance tax goods from outside the State of Assam by road transport; (b) the authority has no such power to direct the dealers and/or the officer-in-charge of such check posts to comply with such directions. The learned counsel submits that under rule 74 of the Rules, the Commissioner can only issue instructions to the officer-in-charge of a check post but not to the dealers to furnish the declaration as in form XV; (c) the provision of section 32 of the Act does not empower the Commissioner of Taxes to direct a dealer to submit any such form (annexure B) though he may ask for certain information from the dealers as stated in sub-sections (1) to (4) of section 32 of the Act and not beyond that; (d) by introducing the system of permit (annexure B) the authority has put an unreasonable restriction upon the dealers to carry on trade and business who desire to import goods from outside the State of Assam; (e) a new system of permit, if at all is made is only to check the evasion of taxes for which there are other provisions of the Act for taking appropriate action in such cases of evasion and those are provided under sections 11, 13, 25, 31, 33 and 33a of the Act; (f) the impugned permit (annexure B) is illegal, void, arbitrary and violative of the rights of the dealers guaranteed under articles 19 (1) (g), 301 and 304 of the Constitution of India being an unreasonable restriction on freedom of trade. The learned counsel submits that dealers are put to handicap as they are to submit particulars in advance which is neither feasible nor practicable under any circumstance.