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TMI Blog2006 (4) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the aggregate of the benefit of exemption from payment of tax enjoyed by the dealer under this section, computed from the day of coming into force of this sub-section, exceeds 200 per centum of the gross value of fixed assets". Explanation (a) to sub-section (4) explains the meaning of "gross value of fixed assets". Explanation (b) further lays down that aggregate of the benefit of exemption enjoyed by the dealer under section 39 shall be determined in such manner and within such time as may be prescribed. The manner of determination of the "gross value of fixed assets" has been prescribed by rule 101A of the West Bengal Sales Tax Rules, 1995 (hereinafter referred to as "the Rules of 1995 "). Sub-rule (3) of rule 101A provides: "(3) The appropriate assessing authority shall, ordinarily within sixty days from the receipt of-- (a) the information referred to in sub-rule (2), or (b) the declaration referred to in sub-rule (1), where it appears from such declaration that the gross value of fixed assets has changed since the last determination of such gross value was made by the appropriate assessing authority, determine or re-determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and the territorial jurisdiction over which the Assistant Commissioner, Commercial Taxes, Commercial Tax Officers, Assistant Commercial Tax Officer of the particular charge shall exercise their jurisdiction. On the same date the State Government in exercise of the power conferred by sub-section (1) of section 3 issued another Notification No. 1119-F.T. dated April 20, 1995 specifying that the officers of the Central Section mentioned therein shall exercise jurisdiction over the whole of West Bengal and notwithstanding anything contained in Notification No. 1115-F.T. dated April 20, 1995, those officers of the Central Section shall exercise jurisdiction in relation to any dealer having his place of business in any area falling within the jurisdiction of any charge. Section 3(1) has empowered the State Government to appoint various officers to assist the Commissioner of Commercial Taxes and to specify the area or areas over which such assisting officers shall exercise jurisdiction. By Notification No. 1115-F.T. dated April 20, 1995, the State Government specified the areas of different charges and territorial jurisdiction of the assisting officers attached to particular charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conferment of power and specifying territorial jurisdiction under subsection (1) of section 3 are different from the power of transfer of the Commissioner under sub-section (3) and power of delegation under subsection (4) thereof. Question of transfer or delegation does not arise where power and jurisdiction have been conferred by the State Government under statutory power derived from sub-section (1) of section 3. The officers empowered by the State Government under sub-section (1) shall exercise their power on their own rights over the areas specified by the State Government. Mr. Gupta has drawn our attention to rule 205 of the Rules of 1995 prescribing the manner of imposition of penalty for non-issue of cash memo or bill in respect of sale price exceeding rupees 200. Under the said rule appropriate assessing authority is to initiate such proceeding and to pass final order in accordance with the procedure laid down therein. An Explanation has been added to rule 205 by Notification No. 947-F.T. dated March 27, 2002 with effect from April 1, 2000, retrospectively. The said Explanation is reproduced below: "Explanation.--For the purposes of this rule, the expression 'a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and nature of his business, the Commissioner may exempt such registered dealer or dealer from payment of penalty or impose such lesser amount of penalty as he deems fit and proper. (2) to (3) . . ." The parent section has authorised only the Commissioner to impose penalty and to direct payment of such penalty in prescribed manner. The section has not conferred such power on "appropriate assessing authority". The expression "Commissioner" includes only those assisting officers to whom he has transferred a particular case or cases under sub-section (3) of section 3 or to whom he has delegated his power under sub-section (4) of section 3. Rule 205 of the Rules has sought to confer on the "appropriate assessing authority" power to determine and impose penalty under section 64 of the Act. It is well-known that Rules cannot override the provisions of the statute and provision in rule 205 conferring power upon "appropriate assessing authority" contravenes section 64 of the Act under which an officer cannot determine and impose penalty merely because he is the "appropriate assessing authority". An appropriate assessing authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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