9911796707
TMI Blog1996 (6) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act") and the notifications dated September 23, 1994 and October 15, 1994, claimed to be transporters doing business of transporting goods after obtaining necessary registration. It is stated that the appellants being transporters they are acting as carriers within the meaning of section 2 of the Carriers Act, 1865 and on instructions from their clients they carry goods by road either within Tripura or to a place outside Tripura and for such services they are remunerated by their clients. The appellants are, therefore, nothing but transporters and they are not dealers manufacturing or importing taxable goods in Tripura. 4.. But by virtue of the Rules, 1994 effective in the State of Tripura from 13th day of September, 1994 whereby sub-rule (3) has been inserted under subrule (2) of rule 46A of the Tripura Sales Tax Rules, 1976 and insertion of subrule (1A) after sub-rule (1) and substitution of sub-rule (2) in rule 63A in the old sub-rule (2) in the principal Rules and rule 64A, the appellants have been debarred from carrying on their business unless they are registered as transporters with the Commissioner of Taxes in such manner as he may direct. It is stated that by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.. It has been further contended that the appellants can at best give particulars of the goods carried by them or of the consignors or consignee to whom the goods belonged. But it is not possible for them to question about the correctness of such particulars from those persons booking the goods. It is stated that goods are carried by hand-cartwallas or drivers who have no idea about the goods to be consigned. Therefore, the transporters cannot be asked to give particulars other than which they record in their books. The imposition of the obligation requiring the transporters to pay tax under the impugned provision by way of obtaining registration is violative of article 14 of the Constitution of India. Hence, such a provision is ultra vires as section 38 of the Haryana General Sales Tax Act, 1973, imposing a duty on a person transporting goods was held to be beyond the purview of State legislation by the Supreme Court. 9.. The appellants have, therefore, prayed for issuance of a writ of mandamus quashing the provision of section 36A of the Act, rules 46A(3), 63(1A), 63A(2), new rule 64A as introduced in the Tripura Sales Tax Rules, 1976 and also the notification bearing No. F.1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r transporting agency no obligation as dealer has been cast upon them. The State Legislature is, therefore, quite competent to enact such provision in the interest of the State revenue. It is further stated that sections 29, 32 and 36A of the Act were provided in the Act long back and those provisions were never challenged before this writ petition. The provisions so made are regulatory in character and as such they are not violative of any provisions of the Constitution of India. It has also been contended that the petitioners do not discharge their duty as a common carrier as prescribed for in the Carriers Act, 1865. Rather they are transporting undeclared/mis-declared and self-declared taxable goods violating the relevant provisions of the Act and Rules. In case any transporter is found to have violated the provisions of the Act and Rules at the time of transportation of the goods penal actions are taken against the transporters. But they are not treated as dealers and no punishment was also awarded to them as dealers. What sub-section (2) of section 38 of the Tripura Sales Tax Act, 1976, envisages is that every person transporting taxable goods is to file a correct and complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers in disguise. Hence, to check such unscrupulous transporters the aforesaid measures under the amended provisions of the Rules have been made. 17.. As regards the allegation that the transporters are being harassed at the check-post it is stated that whenever any transporter reports any case of harassment or illegal seizure such case is immediately looked into and when such allegation is found to be true the Superintendent of Taxes at Churaibari releases the goods immediately. It is not true that they are detained on flimsy grounds. 18.. It was further stated that on December 4, 1994, the Commissioner of Taxes was present at Churaibari check-post when M/s. Paul Road Link, a member of the petitioners' association gave a declaration in form No. XXIV that vehicle TRC 3516 carried only non-taxable goods, viz., sugar and chira. But when the vehicle was searched by the tax official at Churaibari it was found that there were 48 tins of vanaspati, 8 package of candle and 10 big drums of rubber solution which are all taxable goods (R/5 series). 19.. It was further stated that transporters while violating the provisions of the Act and Rules are required to pay composition money in lieu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Seventh Schedule. In this context Dr. Saraf has also assailed the provisions made under rule 64A of the old Rules. The first question which, therefore, arises for consideration is whether the State Legislature has the legislative competence to make any law as is done under section 36A of the Act and rule 64A of the old Rules. 25.. It may, therefore, be advantageous to extract section 36A of the Act and rule 64A of the old Rules. Section 36A of the Act reads as follows: "36A. Maintenance of accounts by carriers.-(1) Notwithstanding anything contained in any other Act, any transporter, carrier or transporting agent operating its transport business in Tripura, shall maintain proper account of goods transported to or outside Tripura through it in the manner prescribed and shall on demand by the Commissioner be liable to furnish in the prescribed manner such information as the Commissioner may require relating to the transportation of such goods and shall also be bound to produce books of accounts for inspection and examination by the Commissioner." Rule 64A of the old Rules reads as: "64A(1) Every transporter, carrier or transporting agent operating its transport business in T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at these provisions are nothing but regulatory measures for the sole purpose of preventing evasion of tax. According to him the obligation for furnishing information by the aforesaid provisions do not in any manner impede or hamper the free-flow of trade and as such those provisions do not contravene the provisions of article 301 of the Constitution of India. 30.. Now on perusal of the judgment of the learned single Judge we find that learned single Judge under paras 35 to 42 of his judgment dealt with the provisions laid down under section 38 of the Haryana General Sales Tax Act vis-a-vis the provisions of rule 46A(3), rule 63A(1A), rule 63A(2), rule 64A and the provision of sections 29, 32 of the Act. As already stated section 36A requires maintenance of proper accounts of goods transported to Tripura or outside Tripura. Rule 64A prescribed the forms in which a register has to be maintained and the accounts of every consignment of goods transported into Tripura. 31.. Sub-section (1) of section 38 of the Haryana General Sales Tax Act on the other hand requires every clearing or forwarding agent, dalal or other person transporting goods within the State, who, during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n avoid furnishing the information and particulars to the assessing authority of a border State like Tripura as it has been contended that on some occasion it was found that transporters are carrying taxable goods through check-post without documents and on behalf of some unscrupulous transport agency for the sole purpose to cause evasion of tax and by such act they have been acting as agents of the dealers who clandestinely doing business of taxable goods evading tax. In the counter-affidavit it was specifically stated that M/s. United Trade and Transport did not maintain such records for a long time and in another case M/s. North Eastern Carrying Corporation delivered taxable goods without permit. 33.. Now, if the provisions of section 36A and rule 64A are compared with that of section 38 of the Haryana General Sales Tax Act and the Rules made thereunder it would be apparent that while rule 48 of the Haryana General Sales Tax Rules speaks of the licence that the clearing or forwarding agents or dalal or persons for transporting goods has to obtain; no such clause is there under section 36A or rule 64A of the said Act and Rules of Tripura. Moreover, there is no provision requiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tarulata Shyam v. Commissioner of Income-tax, West Bengal reported in [1977] 108 ITR 345; (1977) 3 SCC 305. This case relates to some provisions of the Indian Incometax Act, 1922, which were inserted in the Act by the Finance Act, 1955, by adopting corresponding section 108 of the Commonwealth Income-tax Assessment Act. Under para 35 of the judgment their Lordships made the following observation: "To us, there appears no justification to depart from the normal rule of construction according to which the intention of the Legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt, J., in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 KB 64 (KB) at page 71, that: '...........in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.' Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sufficient opportunities of being heard and on maintaining the principles of natural justice those proceedings are completed. A perusal of the provision of section 32 of the Act makes it abundantly clear that the defaulting dealer or agents may contest the case which has been registered against him and avoid payment of composition money. On the other hand, if he agrees to pay the composition money then the proceedings which were started against him would be dropped. It is, therefore, found that it is an option given to the defaulting dealers/agents. There is no compulsion in this provision that he should be bound to pay the composition money. 41.. Learned Advocate-General has contended that it cannot be denied that this tiny State of Tripura is virtually surrounded by Bangladesh and this aspect cannot be ignored. It is true that this State is a border State bounded on the major three sides by Bangladesh. The particulars and informations required to be furnished in prescribed form after registration do not, in our view, put any restriction on the inter-State trade. A mere stoppage of the movement of the vehicle for checking will not harm any direct or immediate effect on the trad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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