HAJARIMALL NANDLALL Vs. STATE OF ASSAM

JUDGEMENT

(1.) By this common judgment, the writ petitions being Civil Rule No. 1531 of 1995, Civil Rule No. 1532of 1995, Civil Rule No. 1.533 of 1995 and Civil Rule No. 2009 of 1997 are proposed to be disposed of together since they raise a common question of law. The petitioners are owners of different tea estates situated within the jurisdiction of this court. They have preferred these writ petitions praying for restraining the respondents from demanding Tax Clearance Certificates from the drives or the person-in-charge of the trucks carrying petitioners' tea to different Auction Centres and for specific directions to the Respondents No. 5 to 8 i.e. the Inspector of Taxes posted at Various check-posts not to insist for tax clearance certificates.

(2.) Petitioners grievance in all the writ petitions and the prayes made are identical. They carry on business of plantation, manufacture and sale of black tea. The petitioners are also liable to file returns of income tax and sale as per provisions of Assam Agricultural Income Tax Act, 1939, Central Tax Act, 1956 and the Assam Sales Tax Act. 1947 as amended upto date and the Rules framed thereunder. According to them, they have paid taxes for the Assessment Years 1991 to 1995. They are also clearing their income tax as assessed from time to time. The tea manufactured in their tea estates is despatched to various places in the outside Assam. The Tax Clearance Certificate annexed with the writ petitions also show that there was no outstanding payable by them on account of taxes. The tea produced by them in course of transit has to pass through various Check Posts(Tax) set up under Section 44 B of 1947 Act and the Rules framed thereunder. During the course of last 20 years, the tea produced by them were allowed to be transported through the Check Posts after filling of declaration as per provisions of 1947 Act. No other document was ever insisted on by the officers at the Check Posts for allowing passage of tea. But since January, 1994 the officials at Khanapara, Srirampur, Biswanath Chariali and Borlissa Check Posts were not permitting transportation of tea without production of Sales Tax and Agricultural Income Tax Clearance Certificates. The Act of 1947 was substituted by Assam General Sales Tax Act, 1993 with effect from July 1, 1993. Section 46(3) of the Act of 1993 provides that in order to prevent or check evasion of tax, the State Government may by Notification direct the setting up of Check Posts or erection of a barriers. Section 74 of 1993 Act provides that all Rules, Notifications, Registrations or other documents, forms and notice made or prescribed or issued under the repealed statute which were in force immediately before such repeal "may be taken or continued as if this Act (the 1993 Act) had not been passed." Neither under the Act of 1947 nor under the Act of 1993 any provision has been made requiring the Tea Estates to produce Sales Tax Clearance Certificates at the Check posts set up under the said Act. The said Acts or the Rules framed thereunder also do not contain any provision or issue of sales tax clearance Certificate. Rules 33 and 34 of the Rules framed under 1993 Act laid down the procedure for application and issuance of Tax Clearance Certificate on a different context.

(3.) It is further submitted that although there is no provision under the Assam Agricultural Income Tax Act, 1939, the petitioners have been compelled to obtain Agricultural Income Tax Clearance Certificate from Respondent No. 3. That apart, the Officials at Check Posts insisted for production of Agricultural Income Tax Clearance Certificate for which the petitioners had to apply for such certificates before the Respondents No. 3 and 4 But the Respondents No. 3 and 4 issued such Certificates for a limited period of 1 to 3 months only resulting into harassment to the petitioners and dislocation in their business.