TMI Blog1982 (6) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ales in accordance with the law. It has been stated by the said company that the assessment in question, viz., assessment for the period 4 quarters ended the last day of Chaitra, 1361 B.S. (hereinafter referred to as the said assessment), was a fresh one, made by the Additional Commissioner of Commercial Taxes, respondent No. 3, to make fresh assessment after giving the said company reasonable opportunities of being heard. In terms thereof, it has been stated that the Commercial Tax Officer concerned was authorised to make fresh assessment after re-examination of books of account and without any restriction whatsoever. The said company has further stated that in accordance with the fresh assessment and in the proceeding for thesaid assessment, pursuant to the directions of the appellate authority, they appeared before the Commercial Tax Officer concerned from time to time and produced their books of account and other relevant documents as required and were asked for by the said officer to establish the statements as contended in their returns. It would appear from the pleadings that in their return, the said company asked for exemption of Rs. 19,39,234-15-9 under section 5(2)(a)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 19,39,234-15-9 as claimed by them as deduction under the section as mentioned above. That apart, it has been stated that the said officer refused to allow exemption in respect of the claims as made on the basis of 28 declaration forms, supplied by registered dealers, who as mentioned hereinbefore, obtained them from their respective Commercial Tax Officers. The said company has alleged that the officer concerned, in making the assessment whereby he enhanced the gross turnover and disallowed the claims for deduction made under section 5(2)(a)(ii) of the said Act, proceeded arbitrarily and on suspicion, conjectures and surmises and not on evidence or materials, which could support such disallowance. It was claimed that such disallowance was made relying upon materials collected behind the back of the said company or without giving them any opportunity of contesting the legality or binding effect of the concerned materials and as such, the order as made, was bad, for having been passed in violation of the principles of natural justice. In fact, the said company has stated that the reasons for disallowing the claims for exemption under the said Act, as mentioned above, were pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn the concerned declaration forms to them, which according to the said company, were kept without any authority of law. It would appear that by an order dated 7th April, 1964, the said respondent No. 4, rejected the petition of appeal and confirmed the assessment as made on the grounds that the disallowances of claim for exemption and levy of sales tax were quite justified. The said company has alleged that in making such order the said respondent No. 4 did not consider at all or deal with the application dated 10th February, 1964, as made under section 21A of the said Act. Section 21A deals with the powers of Commissioner to take evidence on oath and categorically lays down that the Commissioner or any person appointed to assist him under sub-section (1) of section 3 shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the matters, viz., (a) enforcing the attendance of any person and examine him on oath; (b) compelling the production of document; (c) issuing ............. for the examination of witness; and any proceeding under this Act before the Commissioner or any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Commissioner of Commercial Taxes, respondent No. 3, and he by his order of 26th November, 1968, also confirmed the order of respondent No. 4 and consequently rejected the revision petition, holding that the rejection of the books and enhancement of gross turnover as made, were perfectly justified and there were good grounds for disallowing the claims as made under section 5(2)(a)(ii) of the said Act. The said company has alleged that respondent No. 3, without any materials or evidence, held that there has been manipulation in the books of account which were apparent in the case of exemption as claimed under the section as mentioned above. It has been alleged that the said respondent No. 3, in rejecting the claims under the section as mentioned above, acted on irrelevant materials and the conclusion arrived at by him, were based merely on conjectures, suspicion, surmises and his findings were without any evidence whatsoever, apart from being illegal and irregular and contrary to the submissions as made on the point. From such determinations by respondent No. 3, the said company filed a further revision petition before the Board of Revenue, West Bengal, contending, inter alia, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed authority is furnished in the prescribed manner by the dealer who sells the goods. It was the case of the said company that they by producing the valid declaration forms as supplied to them by the purchasing registered dealers and which forms or the registrations were not cancelled by the authorities concerned, during the concerned period, had proved that the sales were made to the registered dealers and as such, the assessing authorities acted illegally and in excess of jurisdiction in rejecting such claims under the section as mentioned above and thereby depriving the said company of the deductions, which they would be entitled to under the law. In fact, it has been stated that in the instant case, none of the authorities came to a conclusion upon the available materials, that the transactions as made by the said company, were not bona fide. The said company has further stated that the purchasing registered dealers were in existence during the period relevant for the transactions in question and at that time, they were also in possession of the valid registration certificates. The rejection of the claims under section 5(2)(a)(ii) of the said Act by all authorities concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the gross turnover of the dealer could be assessed at Rs. 20,66,336-4-0 and tax assessed thereon are perverse on the ground that it is not based on any legal evidence? (v) Whether, on the facts and in the circumstances of the case, the order of assessment and the appellate and revisional orders of the sales tax authorities offended the principles of natural justice and are against the provisions of section 11 of the Act in view of the finding that the rejection of the declaration forms were based on secret and confidential reports which were not shown or made available to the applicant but were relied upon by the taxing authorities? (vi) Whether, on the facts and in the circumstances of the case, the order of the Board is based on surmises and conjectures and whether the Board relied on irrelevant materials and consideration in disallowing the claims of the dealer under section 5(2)(a)(ii) of the Act? (vii) Whether, on the facts and in the circumstances of the case, the order of the Board is arbitrary and perverse? (viii) Whether the order of the Board of Revenue is perverse for the following reasons: (a) The materials and evidence produced by the assessee remain u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der as passed by the Board of Revenue was not communicated to them. In fact, it has been stated that without a copy of the full order of the Board of Revenue it was not possible for them to file any reference application and such question of law as arose from the said order of the Board of Revenue, could not be duly framed. It was the further claim and contention of the said company that the full order of the Board of Revenue should form a part of the case or the concerned reference applications, as such order was the basic document from which the petitioner could suggest appropriate question of law for the opinion of the High Court. With such end in view, the said company has stated to have applied for certified copy of the concerned order of the Board of Revenue on 19th May, 1972, as there was or is no provision under which they could get a copy of the order as made by the Board. It would appear from the statement as made in this petition that the certified copy as mentioned above, was obtained on 24th June, 1972. It was also the claim and contention of the said company, that on the facts and circumstances of the case and in accordance with rule 83A(iii) of the Bengal Sales Tax R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the Tribunal acted in flagrant violation of the principles of natural justice in not entertaining the reference application under section 21(1) of the said Act and referring the question of law to this Court for decision by treating the concerned application as filed within time. The rule was made ready as regards service on 27th January, 1978, and although directions for affidavits were given on 17th February, 1978, and an appearance has been entered for and on behalf of respondents, they have not filed any return to the rule, but Mr. Dutta appearing for them, made his submissions on production of the records. Dr. Pal, appearing in support of the rule, firstly, claimed that respondent No. 2, viz., the West Bengal Commercial Taxes Tribunal, acted illegally in holding that the application under section 21(1) of the said Act was barred by time. He claimed that since the said company found and thought the order of the Board to be a proper document to be incorporated and filed with the reference application, so they had duly asked for a certified copy of the determinations, for the purpose of enclosing the same as a part of the reference application and the time consumed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to such conclusion. The conclusion as arrived at was also claimed to be based on no materials or inconsistent with the evidence as led apart from being contradictory and based on irrelevant considerations. These apart, the refusal to allow deductions as claimed was termed by the said company to be arbitrary and against the principles of natural justice and it was also claimed that there was no material to hold that there was reasonable ground to disbelieve the genuineness of the concerned transactions and as such, the order as made was also invalid, inappropriate, illegal, irregular and void. Dr. Pal very candidly stated and to which I also agree that the determinations which would have to be made on his submissions would clinch the issue and in any event, this Court would not be required to go into his second branch of submissions. In fact, I also feel that if it is found that the reference application was not decided appropriately and the said company would be entitled to the benefits of the time consumed for obtaining the certified copy of the Board's decision in the matter of filing the reference application, then the submissions will have to be sustained, the effect whereof, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) requiring the Board of Revenue for a reference an assessee is not entitled to exclude the time requisite for obtaining a copy of the order of the Board of Revenue passed in revision under section 20(3). In that case an order in revision under section 20(3) of the Bengal Finance (Sales Tax) Act, 1941, was made by the Board of Revenue on 28th January, 1967, and the communication of the order was made to the assessee on 4th March, 1967. The assessee made an application under section 21(1) on 16th May, 1967, for a reference of certain points of law to the High Court and submitted that if the time for obtaining a copy of the order of the Board of Revenue be taken into account, under section 12 of the Limitation Act, 1963, the application would be in time. The Board of Revenue held that the application for reference was barred by limitation and refused to make a reference and on application to the High Court under section 21(2) of the said Act, against the refusal of the Board of Revenue, it has been held, that in holding that the application for reference was barred by limitation, the Board was not in error and therefore the High Court could not exercise its powers under section 21( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternative, but to apply for a certified copy of such order on 19th May, 1972. The said certified copy has been stated to be made ready an 24th June, 1972. It has also been stated that in terms of rule 83A of the said Rules, which lays down that an application under section 21(1) of the said Act, must be filed (i) in triplicate, (ii) signed by the applicant or by an agent duly authorised by him in that behalf and (iii) accompanied by three copies of every document which in the opinion of the applicant, should form part of the case, together with the English translation in triplicate of every such document, where necessary, they were required to file a copy of the order as according to them the word "document", would mean and include the copy of the Board's order and in fact, the certified copy of such order, which was received very late, was filed along with the application for reference. As mentioned above, it was also claimed that since the order as made would be a document as referred to or mentioned in rule 83A(iii), and a long time was really and in fact consumed, to secure and obtain the certified copy of the same, the time taken or consumed in obtaining such certified copy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no provision for condonation of delay or any mention about the certified copy of the Board's order and if the provisions as were there, on the basis of the determinations in the cases of Director of Supplies and Disposals v. Member, Board of Revenue, Government of West Bengal [1960] 11 STC 589 and Guest Keen Williams Ltd. v. Additional Member, Board of Revenue, West Bengal [1968] 22 STC 198, which were made on that basis on 8th June, 1960, and 22nd April 1968, respectively, would not have required any further determination on the first question as referred to hereinbefore. But he said that the subsequent incorporations as would be mentioned hereafter would require a fresh and further determination on such point. It is also true that on the basis of the existing law as mentioned above, there was no special form prescribed for an application under section 21(3) and the same was required to be filed in triplicate, accompanied by three copies of every document, which in the opinion of the dealer, should form part of the case and giving a statement of case and indicating the questions of law for reference to the High Court, within the time as prescribed. It was claimed by Dr. Pal th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the documents or copies thereof, as specified below (the translation in English of the documents, where necessary, is annexed), be forwarded to the High Court with the statement of the case. Signed............................. (Applicant) Signed............................. (Appointed agent, if any)." Form A, as prescribed, no doubt satisfies the requirements of the necessary incorporations of and the required contents in a reference application under rule 83A of the said Rules. It was claimed by Dr. Pal that the Tribunal under the said Act came into existence in 1974, and as such the same was neither in existence nor constituted when the Calcutta decisions as mentioned hereinbefore, were made and so the determinations as made in those cases or the observations as made or contained in them will not apply and the point as involved in this case should be decided on the basis of the law and the requirements as stand or operative now. Rule 73A and onwards of the said Rules, deal with the manner of filing and disposal of appeals, application in revision or for review and it was the claim and contention of Dr. Pal, that those rules or the terms of them should also apply to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the order of the Board and that would come within the purview of a document as mentioned hereinbefore or more particularly as mentioned in rule 83A of the said Rules. Mr. Dutta, appearing for the answering respondents, claimed that this application, on the basis of the prayers as made or on the effect of them, would not be maintainable and if at all, from the order as impeached, the appropriate remedy or relief of the said company, was by way of an application under section 21(2)(b) of the said Act, which lays down that if, for reasons to be recorded in writing, the Board of Revenue refuses to make a reference, the applicant may within thirty days of such refusal either (a) withdraw his application (and if he does so, the fee paid shall be refunded), or (b) apply to the High Court against such refusal. It was claimed by Mr. Dutta that the use and mentioning of the word "document" as in rule 83A, would not include a judgment and as such, the time consumed, for obtaining the certified copy of the same, cannot be taken into consideration, while computing the period of limitation. He claimed that since such record was not required or necessary to be filed along with a refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect and that too on the proper construction and interpretation of the phrase "mutatis mutandis". In support of such submissions and on the construction and interpretation of the phrase "mutatis mutandis", reference was made to the determinations in the case of Debi Mata v. State of West Bengal (1972) 76 CWN 308, which has observed that by the phrase "mutatis mutandis" as in sections 60 and 61 of the Estates Acquisition Act, 1953, the legislature has neither abdicated nor delegated any of its legislative powers. Such a phrase is often used in legislation in applying or extending legislative provisions to same or similar circumstances or to same or similar subjects and such phrase is nothing but a rule of adaptation. It was specifically claimed by Mr. Dutta that the terms "as far as applicable" would not mean the application of the whole rules, but that would mean application of the rules as far as possible and permissible. When a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change be necessary, some change shall neverth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplates filing of such "documents" which the assessee may deem necessary to file. "Document" is something that furnishes evidence, specially a legal deed or other piece of writing. "Documents" shall also include any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, which is intended to be used, or which may be used, for the purpose of recording that matter. "Document" will also include summons, notice, requisition, order, other legal process and registers. Any decipherable information, which is set down in a lasting form would be a document. "Document" is a written paper or something similar, which may be put forward in evidence. The term "document" means a document legally enforceable. An instrument on which is recorded, by means of letter, figures or marks, matters which may be evidentially used, would be "document". The expression "document" would also mean something, on which things are written, printed or inscribed, and which gives information and would also include, any written thing, capable of being evidence, a paper or other material thing affording information, proof or evidence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated above, but also on the application of the phrase "mutatis mutandis", which means amongst others "necessary changes being made", I think the rules relating to revisions under the said Act would also apply. There is no provision in the said Act either regarding computation of period of limitation similar to the Income-tax Act, 1961, or expressly excluding the application of the provisions contained in the Limitation Act, 1963. So the provisions of sections 4, 5 and 12 of the Limitation Act, 1963, shall also apply. It should also be noted that previously, there was no special form prescribed for an application under section 21 of the said Act and now, such form has been statutorily prescribed, which has also specified the documents to be annexed and filed. Such word "document" as mentioned in form A, in my view, on the definition of the same, may also include the certified copy of the order moved against and as such, on the views as expressed earlier, I hold that an assessee willing to annex the certified copy would be entitled to claim the credit for the days required by him to obtain the same, subject of course to the other provisions of the Limitation Act. For the views a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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