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TMI Blog2007 (6) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... rcle (in short, "the ACCT/CH") for grant of registration under the West Bengal Sales Tax Act, 1994 (in short, "the 1994 Act"). The petitioner in the said application filed before the ACCT/CH indicated that it manufactures dehydrated coal tar, light and heavy creosote oil, naphthalene and its by-products, anthracene and its by-products, coal tar pitch (hard, medium and soft). It was also indicated therein that for the purpose of manufacturing those items, it would purchase coal tar, dehydrated/crude coal tar, processed tar, soft/hard pitch, caustic soda, titanium dioxide, coke powder, benzene, salte powder AlprolN-100, Alpril-N-400 along with packing materials like drums, polythene/plastic bags and gunny bags. The said application for registration was disposed of by the ACCT/CH on May 16, 2000. As per the said registration certificate, the petitioner was allowed to purchase raw materials, plant and machinery, spare parts, accessories, components parts thereof and consumable stores as may be required for the purpose of manufacturing coal tar and pitch at the rates specified in sub-clause (ii) of clause (b) of sub-section (2) of section 17 of the 1994 Act. But th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospective effect from May 5, 2001 by including dehydrated coal tar, light and heavy creosote oil, naphthalene and anthracene oil in the manufacturing column of the registration certificate. Since the inclusion of the items was made effective with effect from May 5, 2001, the petitioner filed a revision petition before the ACCT/CH praying inclusion of these items effective from the date of granting the registration that is with effect from May 16, 2000. The prayer of the petitioner was not entertained by the ACCT/CH. The petitioner filed second revision against the order dated June 2, 2003 of the ACCT/CH as aforesaid before the Deputy Commissioner of Commercial Taxes, Chowringhee Circle (in short, "the DCCT/CH"). The prayer of the petitioner was not also entertained by DCCT/CH and he by his order dated September 4, 2003 confirmed the order of ACCT/CH. Simultaneously, penalty proceedings were initiated against the petitioner under sections 77(1) and 78(1) of the 1994 Act for unauthorised use of goods and improper use of declaration forms. The concerned Commercial Tax Officer, Lyons Range Charge, imposed penalty of Rs. 17,40,333 under section 77(1) and Rs. 7,22,690 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation. Moreover, it was contended by Sri. Chakrabarty that the petitioner was given to understand that even if those items were not included in the manufacturing column of the registration certificate, the petitioner would not face any difficulty in purchasing raw materials against issue of declaration forms at concessional rates for manufacturing of other items which are incidentally by-products of the main item. It was alleged by him that on the basis of this assurance, he acted in the bona fide manner and no question was also raised at the time of issue of declaration forms on various dates. Our attention was drawn to rule 89 of the West Bengal Sales Tax Rules, 1995 (in short, "the 1995 Rules") which inter alia contains that the appropriate assessing authority while issuing the declaration form should be satisfied that the applicant has made bona fide use of the declaration form issued to him on the previous occasion. The presumption, as per submission of Sri Chakrabarty, is that the issuing authority had no doubt about the bona fide use of the forms. Moreover, since the items were not included in the registration certificate at the time of registration for which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, the applications of the said company were placed before him for consideration regarding the issue of declaration forms but the new officer did neither consider the applications nor any reason was recorded by him regarding his dissatisfaction. Being aggrieved and dissatisfied, the said company moved a petition before the honourable Calcutta High Court under article 226 of the Constitution. The single judge, who heard the petition, passed an order directing the said company to pay the tax dues in instalments and also directing the Commercial Tax Officer to issue such declaration forms as may be required by the petitioner in accordance with law. The petitioner paid the tax and claimed the issue of declaration forms but the Commercial Tax Officer rejected the application for declaration forms inter alia on the ground that the petitioner was not a manufacturer of the goods mentioned in the registration certificate in the manufacturing column and the materials purchased were not used in the manufacture of said goods but were used for manufacturing goods other than those mentioned in the manufacturing column. On a petition filed before the honourable Calcutta High Court, it was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, Radhabazar Charge, along with registration certificate under the Bengal Finance (Sales Tax) Act, 1941. The registration certificate was received and filed in the respective files and it was not brought to the notice of the petitioner-firm or the partners that the Central registration certificate did not contain any of the class or classes of goods asked for in the application. The petitioner applied for issue of declaration forms namely "C" form on September 28, 1975, May 6, 1976 and November 26, 1976 and "C" forms were issued on each occasion. These were issued by the Commercial Tax Officer after due verification as to the requirement and bona fide use of the said forms. Thereafter, application for "C" form from the petitioner was rejected on January 12, 1977 on the ground that the registration certificate under the Central Sales Tax Act had no coverage for the goods purchased. The petitioner-firm applied for amendment to the registration certificate on April 12, 1977 and by an order dated September 9, 1977, the amendment was allowed from the date under said order. On September 30, 1977, a notice was issued by the Commercial Tax Officer initiating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration certificate should be treated as amended with effect from April 17, 1974 on which date the registration was granted. (C) The Assessing Authority v. Patiala Biscuits Manufacturers Pvt. Ltd. [1977] 39 STC 381 (SC): In this case, the question before the honourable High Court of Punjab and Haryana was whether the sales made to a dealer who had applied for registration under the Punjab General Sales Tax Act, 1948, before his application was allowed were to be treated as sales to an unauthorised dealer or registered dealer when the registration was effected from the date of application. The issues dealt with in this case are not identical to the issues raised in the instant petition. Therefore, considering the facts and circumstances of the instant petition vis-a-vis the facts and circumstances of the case considered by the apex court, we are of the view that the said decision has no applicability in the instant case. (D) Mac Charles Brothers (Private) Limited v. Commercial Tax Officer, X Additional Circle, Bangalore [1986] 63 STC 452 (Karn): Mac Charles Brothers (Private) Limited had undertaken the construction of a five star hotel and made an application under the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion of the goods "rectified spirit" in the respective column of the registration certificate with effect from March 26, 1977 that is the date of application for registration. The application was rejected by an order dated August 27, 1977 on the ground that with effect from June 1, 1977 country liquor had become tax-free and there was no necessity to insert such an item under the manufacturing column. This was also confirmed by the revisional authority. Upon application moved before the honourable High Court of Orissa at Cuttack, it was held "that the controversy is that though the application for registration contained all relevant aspects, Sales Tax Officer did not make the relevant entries for which a subsequent application was made. The prayer was to fill up the omissions. The entries once made had to operate from the date of application. This aspect has not been considered by the authorities in the proper perspective. The Sales Tax Officer shall pass necessary orders keeping in view the position of law as indicated above". (F) ITC Bhadrachalam Paper Boards Ltd. v. State of A.P. [2002] 126 STC 541 (SC): ITC Bhadrachalam Paper Board Limited, the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat non-inclusion of all the finished products as well as their raw materials would not pose a problem in future regarding issue of declaration forms as well as in the matter of availing of concessional rate of tax on the purchase of raw materials against issue of such declaration forms. There is nothing on record to show that the petitioner was assured in the manner as claimed. It was also challenged by him that the petitioner was advised by the concerned authorities to move a petition seeking amendment of the registration certificate issued to it. There is no denying of the fact that declaration forms had been issued to the petitioner by the CTO/LR on various occasions. But the moment it was detected that those forms were issued for purchase of raw materials for the purpose of manufacturing of items not covered by the registration certificate the concerned CTO/LR rejected the prayer of the petitioner on valid ground. He also drew our attention to the memo bearing No. 1694/ CH dated May 17, 2000 issued under signature of the ACCT/CH. Registration certificate issued to the petitioner was forwarded to it under the said memo. Paras 2 and 3 of the said letter are reproduced hereinbelo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been correctly furnished or that the applicant has made bona fide use of declaration forms issued to him on the previous occasion. In the instant case, CTO/LR was not satisfied about the bona fide use of declaration forms issued to the petitioner on earlier occasions. It was also argued by him that penalty as imposed under sections 77(1) and 78(1) of the West Bengal Sales Tax Act, 1994 was rightly imposed. It was, therefore, argued that the concerned authorities amended the registration certificate as per prayer of the petitioner. The question of amending the registration certificate from the date of registration did not arise at all since there was no specific prayer for such retrospective amendment and since registration certificate as well as any amendment can be made effective only from the date of application. It was, therefore, contended by Sri Gupta that all subsequent actions taken by the authorities concerned are very much legal and do not call for any interference from this Tribunal. We have heard the rival contentions and perused the records as were made available to us. Scrutiny of the records revealed that at the time of application the petitioner specifically mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s there is a contrary finding the registering authority would include all the items prayed for by a dealer at the time of submitting the application for registration. In the instant case, it has never been challenged that the items prayed for by the petitioner were not mentioned in his application. When non-inclusion of items were brought to the notice of the concerned Commercial Tax Officer, he ought to have taken into account such omission on the part of the registering authority and amended the registration certificate with effect from the date of granting the registration certificate. In the facts and circumstances of the case, we are of the view that the application dated May 4, 2001 for amendment of the registration certificate should be treated as application for amendment of the registration certificate with retrospective effect that is from the date of granting registration. The concerned authorities are directed to act accordingly and pass necessary orders effecting such amendment within a fortnight from the date of receipt of this order. In RN-477 of 2003, the petitioner has challenged the order dated September 26, 2002 of CTO/LR rejecting the application for declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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