TMI Blog2011 (5) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant fiscal statutes, suffers from malice in law, if not malice in fact? Whether the petitioner is, in the facts and attending circumstances, entitled to compensation on account of the conduct of the respondents in not allowing "registration" to the petitioner as "dealer", under the relevant fiscal statutes, so as to enable the petitioner to carry on its business? Held that:- In the present case, the petitioner is not liable to pay tax under the CST Act, 1956, as he has not made any sale in the course of inter-State trade and commerce from the State of Tripura nor he can make any sale of coal in the State of Tripura and become thereby liable to pay tax under the local Sales Tax Act unless and until he is allowed to import coal into the State of Tripura. As the action of the respondents/authorities concerned in refusing registration of the petitioner as a registered dealer is wholly untenable in law and discloses malice in law, the petitioner has considerable force, when it claims compensation for the losses, which it has suffered. Thus, though the petitioner has been able to make out a good case for directing payment of suitable compensation for the losses, which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration to the petitioner as dealer , under the relevant fiscal statutes, so as to enable the petitioner to carry on its business? Before one attempts to answer the questions posed above, imperative it is to take into consideration the circumstances, whereunder the present writ petition has come to be filed under article 226 of the Constitution of India. The material facts, giving rise to the present writ petition, may, therefore, be first noted. Background facts (i) The petitioner is a company incorporated under the provisions of the Companies Act, 1956, for carrying out, in the State of Tripura, the business in trading of coal and with the aim to set up, in future, the business of stone boulder crushing. The petitioner accordingly submitted, on February 9, 2010, applications to the Superintendent of Taxes, Charge VIII, Agartala, seeking registration as dealer under the Tripura Value Added Tax Act, 2004 (hereinafter referred to as, the TVAT Act, 2004 ), and the Central Sales Tax Act, 1956 (hereinafter referred to as, the CST Act, 1956 ). By a communication, dated February 10, 2010, the Superintendent of Taxes, Charge VIII, Agartala, requested the petitioner to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised, was satisfied by the petitioner by making payment of the said sum of Rs. 3,71,535 subject to the condition that the payment was being made under protest inasmuch as the petitioner was in dire need of the certificate of registration as huge quantity of coal had been purchased by the petitioner and had to be unloaded at the railway stockyard and that the petitioner had been paying wharfage and demurrage charges to the railways. (iv) As the registration certificates were not granted to the petitionercompany despite the fact that sufficient time had elapsed, the petitioner made representations to respondent Nos. 2 and 3, namely, Commissioner of Taxes, Government of Tripura, and Superintendent of Taxes, Charge I, Government of Tripura, Finance (Excise and Taxation), requesting them to let the petitioner know the status of its applications and also to grant requisite registration certificates early. Reacting to the representations, so made, respondent No. 3 herein issued a communication asking the petitioner to furnish various documents for the purpose of disposal of the petitioner's applications for registration . Respondent No. 3 informed the petitioner, by its c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unication, dated July 9, 2010, the petitioner, by another communication, informed the respondents that, in the State of Meghalaya, coal is sold in open market and, therefore, one need not enter into any agreement for the purpose of procuring coal and/or for each transaction of coal. Thereafter, the petitioner, vide communication, dated July 22, 2010, informed the respondents that a huge stock of coal, imported by the petitioner, had been lying at Bihara Railway Sidings, Assam, and the petitioner was incurring huge expenses on wharfage and demurrage to the railways, and requested the respondents to allow the petitioner to take the stock of coal from Bihara, Assam, to Jirania, Agartala, undertaking to pay the required VAT in this regard. It was mentioned by the petitioner, in its said communication, that the petitioner's application for registration as a dealer , both under the TVAT Act, 2004, and the CST Act, 1956, were pending before the concerned authorities. (vii) In response to the petitioner's aforementioned communication, respondent No. 3 informed the petitioner, by its communication, dated July 28, 2010, that the petitioner's prayer, submitted vide letter, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, Commissioner of Taxes, Government of Tripura. By order, dated November 23, 2010, respondent No. 2 allowed the petitioner the remove the defects in its applications for registration by submitting fresh applications, both under the TVAT Act, 2004, and CST Act, 1956. Respondent No. 2 also directed respondent No. 3 to dispose of the petitioner's revised applications as per the provisions of the relevant Acts and Rules on removal of the defects. (ix) The petitioner, thereafter, submitted fresh applications to respondent No. 3 for registration by curing the defects mentioned in the order, dated August 31, 2010, aforementioned. However, respondent No. 3, once again, issued another communication, on December 15, 2010, informing the petitioner that in the applications, submitted afresh by the petitioner, form 1 and form A, had not been found to be in conformity with the existing Rules relevant for the purpose of registration of a dealer . The petitioner was, therefore, asked by respondent No. 3 to submit certificates in respect of the petitioner's factories and boilers, labour, pollution control, certificate of incorporation of new address of the petitioner-company, pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 18) along with requisite challan, dated March 12, 2010, in terms of the requirements of the Companies Act, 1956, for recording change of address of the petitionercompany. The petitioner-company submitted a copy of form 18 along with a copy of the challan, dated March 12, 2010, aforementioned for necessary consideration by the respondent authority. The petitioner further informed the respondent-authority that the petitioner-company was not in the business of export and/or import of any goods from outside India, but in trade and business within India and, hence, the export/import licence or IEC certificate, as sought for by the respondent-authority, was irrelevant. (xi) With regard to the respondent-authority's direction to the petitioner to submit registered deed of agreement for stock-yard for stocking coal and stone boulder, the petitioner informed the respondentauthority that the registered deed of agreement, in respect of stock-yard, had been duly enclosed and that as the petitioner had not started the business of stone boulder, the petitioner had not bought or taken, on lease, any land for the purpose of stone boulder crushing unit and the petitioner was, therefore, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Saraf that the basic object behind registration of a dealer , under the sales tax statutes, is to keep track of the taxable transactions, which may take place within a State, and to ensure effective levy and collection of tax on such transactions. Dr. Saraf relies, in this regard, on the decision in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax reported in [1963] 14 STC 976 (SC); AIR 1964 SC 766, wherein the Supreme Court held that registration is mainly aimed at securing the interest of Revenue by facilitating collection of tax and prevention of evasion thereof. According to Dr. Saraf, one of the essential objects of providing for registration of a dealer , under the sales tax statutes, is to localize a person's taxable turnover as a dealer and to facilitate the collection of tax. In this regard, Dr. Saraf makes reference to the decision of the Supreme Court, in Periyar and Pareekanni Rubbers Ltd. v. State of Kerala reported in [2008] 13 VST 538 (SC); [2008] 14 SCC 704. In substance, what Dr. Saraf submits is that the provisions for registration of a dealer , in all the enactments, have been made with the primary object of levy and collectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration, in refusing registration of a dealer , such materials, which are irrelevant and have no nexus with the objects sought to be achieved. Support for his submission is sought to be derived by Dr. Saraf from the decision of the Calcutta High Court, in Durga Prasad Khaitan v. Commercial Tax Officer reported in [1957] 8 STC 105 (Cal), and also the decision of the Supreme Court, in Indian Nut Products v. Union of India reported in [1994] 4 SCC 269. In support of his submissions, Dr. Saraf, further relies on Smt. S. R. Venkataraman v. Union of India reported in [1979] 2 SCC 491, wherein the Supreme Court held that if people, who have to exercise a public duty by exercising their discretion, take into account matters, which the court considers not to be proper for the guidance of their discretion, then, in the eye of law, they have not exercised their discretion and, in such cases, it would amount to non-exercise of discretion. Mr. N.C. Pal, learned Senior Government Advocate, appearing for the respondents, submits that section 19(3) of the TVAT Act, 2004, empowers respondent No. 3 to grant certificate of registration if he is satisfied, upon holding enquiry, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement of submission of pollution certificate in every case of using coal and the petitioner has failed to furnish the requisite pollution certificate. On this aspect of his submission, Mr. Pal heavily relies on para 6.6 of the affidavit-in-opposition, which is repro duced below: 6.6. That the respondents clearly state 'COAL' is not required in usual course of business in Tripura. There is no domestic use of 'coal' in Tripura except in the brick kiln and tea gardens and other small industries. Besides the Government in the Finance Department has already entered into agreement with the brick kiln dealer to pay lump sum taxes to import coal from the outside of the State but within India to burn green bricks to sale. All the tea garden dealers and other small industrial dealers have obtained certificate of registration for importing coal to run their machine, etc. No certificate of registration has been issued to other private businessman for usual trading in coal in the market of Tripura. It is also stated that there is a requirement of submitting of pollution certificate every case of using of coal. Mr. Pal further submits that without permission of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les tax authority is not required to consider, while taking a decision on an application seeking registration, whether a lease deed exists or not, when the place of business of the petitioner-company has already been disclosed. It needs to be noted, in this regard, points out Dr. Saraf, that the petitioner has submitted registered lease deed in respect of the principal place of its business, i.e., its registered office. Dr. Saraf further pointed out that in terms of section 146 of the Companies Act,1956, a company shall carry on its business, at its registered office, to which all correspondences and notices may be addressed. What this logically means, contends Dr. Saraf, is that respondent No. 3 could not have rejected the petitioner's application for registration, when the petitioner had a registered lease deed as regards the place of its registered office. Reacting to the respondents' contention that registration could not be granted to the petitioner for non-production of certificate of incorporation of change of address from Dhaleswar to Kunjaban, Dr. Saraf submits that this ground is perverse and bad in law inasmuch as neither the Companies Act, 1956, nor the Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not covered by the TVAT Act, 2004, or the CST Act, 1956. The certificate of incorporation along with form 18 and challan, dated March 12, 2010, having been submitted to respondent No. 3 by the petitioner, the same clearly go to show, points out Dr. Saraf, that the petitioner has changed its registered office within jurisdiction of respondent No. 3. Dr. Saraf further submits that the share capital of a company has nothing to do with registration and management of the finances of company is not a relevant consideration for grant of registration under the TVAT Act, 2004, and/or the CST Act, 1956. Strongly objecting to the submissions of the respondents, that the petitioner is not entitled to registration inasmuch as no certificate of registration has been issued to any other businessman for trading in coal, in the markets of Tripura, Dr. Saraf submits that the State cannot prevent any person from carrying on a business in a particular item within a State inasmuch as the same would amount to unreasonable restriction on carrying on trade and business and would violate the guarantee under article 19(1)(g) of the Constitution of India. As regards Mr. Pal's submission made to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd collection of value added tax at different points of sale in the State of Tripura. Similarly, the Preamble of the Central Sales Tax Act, 1956, states that the Act has been enacted to formulate the principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or commerce or outside the State or in the course of import of goods into, or export of goods out of India, and to provide for the levy, collection and distribution of taxes on sale of goods in course of inter-State trade or commerce and also to declare certain goods to be of special importance in the inter-State trade or commerce and specify the restrictions and conditions to which the State laws, imposing taxes on sale or purchase of such goods of special importance, shall be subject to. Thus, it would be seen that both the Acts were enacted for the purpose of levy and collection of taxes. No wonder, therefore, that the TVAT Act, 2004, aims at making the provisions for levy and collection of value added tax in respect of sales within the State of Tripura, which are exigible to value added tax, and the CST Act, 1956, aims at levy, collection and distribution of taxes on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (5) thereof shall be liable to pay tax in accordance with the provisions of the Act on all sales effected by him. Under section 8 no dealer shall, while being liable to pay tax under the Act, carry on business as a dealer unless he has been registered as such and possesses a registration certificate. Part IV of the Rules prescribes the manner in which a dealer shall get himself registered under the Act. Under section 8, if the dealer satisfies the requirements prescribed in that regard, the Sales Tax Officer grants him a registration certificate in form II, which specifies the particulars, such as the location of the business, the nature of the business, etc. The said officer enters the name of every dealer registered in a ledger maintained under section 9 and issue copies of registration certificates for exhibition in the places of their business. Under one of the and the statutory notices under the Act are different and the former cannot be equated with the latter. (emphasis 1 added) Reiterating the objective of a taxable legislation of the nature as the one, which we have at hand, the Supreme Court, in Periyar and Pareekanni Rubbers Ltd. v. State of Kerala reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he is not required to be registered under the TVAT Act, 2004, or the CST Act, 1956, inasmuch as 1 Here italicised. registration would become necessary only in respect of such a dealer , who becomes liable to pay tax. Scope of enquiry as envisaged under section 19(3) of the TVAT Act, 2004, and rule 5(1) of the Central Sales Tax (Registration and Turnover) Rules, 1957. While considering the scope of the enquiry , as visualized by section 19(3) of the TVAT Act, 2004, and rule 5 of the Central Sales Tax (Registration and Turnover) Rules, 1957 (hereinafter referred to as, the 1957 Rules ), it needs to be noted that a dealer is not required to be compulsorily registered unless he becomes liable to pay tax. Section 19 of the TVAT Act, 2004, states about compulsory registration of dealer . Being relevant, sub-sections (1) to (4) of section 19 of the TVAT Act, 2004, are reproduced below: 19. Compulsory registration of dealers. (1) No dealer, while being liable to pay tax under this Act, shall carry on business as a dealer unless he has been registered and possesses a certificate of registration: Provided that a dealer liable to pay tax shall be allowed thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts of sales are kept shall not be deemed to be a place of business. 11. In the application form referred to in rule 10, a dealer shall state, inter alia (i) the nature of the business in broad but sufficiently clear terms and mention whether he manufactures, processes, imports, wholesells, distributes or retails taxable goods or if he carries out more than one of these functions, he shall state precisely the combination of the functions carried out; (ii) the nature of the business namely whether it relates to importing from outside Tripura but within India or importing from outside of India, manufacturing, wholesale distribution, retail sale, supply of food or drink, transfer of property in taxable goods in execution of works contract, transfer of right to use any taxable goods; (iii) the class or classes of taxable goods that a dealer purchases or intends to purchase for resale by him in Tripura; (iv) the class or classes of goods, that a dealer purchases or intends to purchase for use by him directly in the manufacture of taxable goods, including containers or packing materials, in Tripura for sale by him in Tripura; (v) status of occupancy of the applicant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he current year up to a date not earlier than thirty days from the date of such application; (xv) particulars of the certificate issued by the municipality or other authority if any, in respect of business and the date of issue and last renewal thereof; (xvi) particulars of Income-tax Permanent Account Number (PAN) or the evidence that it has been applied for. While considering the question of compulsory registration of a dealer under the TVAT Act, 2004, and CST Act, 1956, it is necessary to take note of the definition of the expression, place of business , as embodied in sub-section (18) of section 2 of the TVAT Act, 2004. Subsection (18) of section 2 reads: (18) 'Place of business' means any place where a dealer carries on the business and includes; (a) Any warehouse, godown or other place where a dealer stores or processes his goods; (b) Any place where a dealer produces or manufactures goods; (c) Any place where a dealer keeps his books of accounts; (d) In cases where a dealer carries on business through an agent (by whatever name called), the place of business of such agent; (e) Any vehicle or vessel or any other carrier wherein the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2A), has been complied with he shall register the applicant and grant to him a certificate of registration in the prescribed form which shall specify the class or classes of goods for the purposes of sub-section (1) of section 8. As rules 3, 4 and 5 of the 1957 Rules deal with certificate of registration of a dealer , these Rules are quoted below: 3. Certificate of registration. (1) An application for registration under section 7 shall be made by a dealer to the notified authority in form A and shall be (a) signed by the proprietor of the business, or, in the case of a firm, by one of its partners, or, in the case of a Hindu undivided family, by the karta or manager of the family, or, in the case of a company by a director, managing agent or principal officer thereof, or, in the case of a Government, by an officer duly authorised by the Government, or, in the case of any other association of individuals by the principal officer managing the business, and (b) verified in the manner provided in the said form A. (2) Where a dealer has more than one place of business within a State, he shall make a single application in respect of all such places, name in such appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in order, meaning thereby that by such an enquiry , the authority concerned has to ascertain as to whether the particulars, which are required to be furnished in an application for registration , have or have not been furnished by the applicant. Coupled with the above, a perusal of section 19 of the TVAT Act, 2004, read with rules 10 and 11 of the 2005 Rules and section 7 of the CST Act, 1956, read with rules 3, 4 and 5 of the Central Sales Tax (Registration and Turnover) Rules, 1957, would go to show that the enquiry , envisaged under the TVAT Act, 2004, is an enquiry in respect of the particulars to be submitted as per rules 10 and 11 of the 2005 Rules in the case of TVAT Act, 2004; and the enquiry , contemplated under the CST Act, 1956, is an enquiry for ascertainment of the particulars, which are required to be submitted by the applicant for registration in terms of rules 3, 4 and 5 of the 1957 Rules. If the particulars, as required under the said Acts and the Rules, are furnished by a dealer , the authority concerned is obliged to register the dealer under the relevant enactment and issue certificate of registration to such a dealer . Examining the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 6, the enquiry that has to be made is ex parte and therefore it violates the rules of natural justice. Of course the rule says that the Commercial Tax Officer can make 'any enquiry that he may think necessary'. But that does not necessarily mean that the rules of natural justice are to be violated. The petitioner has to give certain information in his application. If the authorities are to act on such information then necessarily they must verify it. I do not think that verification or the checking of information given by the dealer himself has to be done in accordance with the rules of a judicial trial. After all, this kind of thing happens everywhere. Supposing a student applies for admission to a school. The particulars given in his application are checked, but nobody can urge that there should be a judicial enquiry. However it has been urged that the provisions of law restricting the fundamental rights of the petitioner, should be put on a different and a stricter footing. Undoubtedly, the enquiry must be done in a way that does not take away that right or make a mockery of it. The learned standing counsel concedes that so far as the enquiry contemplated in rule 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such materials, which are required under the relevant Acts and the Rules framed thereunder, and only those materials can be regarded as relevant, which have nexus with the objects sought to be achieved by way of registration of dealer . In other words, while conducting the enquiry , the authority concerned cannot take into consideration such matters, which are irrelevant and/or not required to be furnished under the relevant statute. A material, which has no nexus whatsoever, with the objects sought to be achieved by way of registration (namely, keeping the assessable transactions traceable and making the person, dealing with such transactions, liable to pay tax), would be nothing but irrelevant and the dealer , applying for registration , cannot be refused to be granted registration on the ground of failure, on the part of the dealer , to furnish such irrelevant information/particulars. In the case of Indian Nut Products v. Union of India reported in [1994] 4 SCC 269, the Supreme Court, while dealing with the matter of satisfaction of the authorities concerned in granting registration to a dealer , observed, in paragraph 10 of its decision, that if a statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of registration of a 1 Here italicised. dealer , under section 19(3) of the TVAT Act, 2004, as well as section 7(3) of the CST Act, 1956, is not, unguided, uncanalised and arbitrary. In the case of Rungpur Enterprise v. State of Assam (W. P. (C) No. 7967 of 2007), this court, while dealing with a case pertaining to refusal of permission for sale of land, by the Guwahati Metropolitan Development Authority, on the ground that there exists a communication issued, dated May 16, 2005, wherein the Joint Secretary to the Government of Assam, Department of Industries and Commerce, addressed to the General Manager, District Industries Centre, had directed not to issue temporary and permanent registration for setting up of a coke industry, held that no authority and, more particularly, a statutory authority, can take into account any factor, which is not necessary for it to consider in arriving at a decision. If such a factor is taken into account, the discretion exercised by such an authority would not be sustainable in law. The relevant observations read as under: (vi) From the observations made above, it is clear that no authority and, more particularly, a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation. He had to base his conclusion on relevant evidence. . . From the above cited observations, made in Agarwal and Co. [1970] 77 ITR 10 (SC); [1970] 2 SCC 48, it becomes clear that an authority, under a taxing statute, cannot refuse to register a firm on its (the authority's) speculations, or on grounds, which are not relevant, and the question, as to whether a ground is or is not relevant, has to be seen in the context of the objects of registration . If, therefore, the present petitioner's applications, which have been made, are in order in the sense that the required particulars, under the TVAT Act, 2004, as well as the 2005 Rules, and the CST Act, 1956, as well as the 1957 Rules, have been furnished, the respondents, particularly, respondent No. 3, cannot refuse, and could not have refused, to grant registration . Thus, what emerges from the above discussion is that while considering an application for registration as a dealer , the satisfaction , which is to be arrived at by the authorities concerned, has to be relevant to the objects sought to be achieved by means of such registration . In the present case, the satisfaction , envisaged by section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 10 and 11 of the 2005 Rules, it logically follows that, in order to get registered under the said Act and/or the Rules, the petitioner was required to submit its applications in accordance with the relevant Rules, enclosing, therewith, such documents as are required under the said Act and the Rules. On the application being submitted, the authority concerned is to make an enquiry , in this regard, and if, upon such enquiry , the authority concerned is satisfied that the application is in order, the registration must be allowed. The enquiry , envisaged by the Act, is limited to the particulars required under the TVAT Act, 2004, read with the 2005 Rules, and the CST Act, 1956, read with the 1957 Rules, and nothing more. If the authority concerned, including respondent No. 3, seeks to obtain any information, which is not relevant within the ambit of the said TVAT Act, 2004, read with the 2005 Rules, and/or the CST Act, 1956, read with the 1957 Rules, the refusal to grant registration to the petitioner, as a dealer , would not be sustainable in law. As is evident from the affidavit-in-opposition filed by the respondents, the registration certificates have been refused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. This apart, it is the State Pollution Board, which is the appropriate authority to take necessary action, in terms of the provisions of the Act of 1981, if a person establishes or operates, in an air pollution control area, an industrial plant withou35t obtaining its previous consent. The sales tax authorities are not the appropriate authority to enforce the provisions of the Act of 1981 inasmuch as a person, appointed as an authority under the TVAT Act, 2004, or the CST Act, 1956, has to function and perform his duties within the ambit of, and for the purpose of, the TVAT Act, 2004, and the CST Act, 1956, as the case may be. In the present case, the petitioner has applied for registration, as a dealer for sale and purchase of coal and not for setting up any industry of coal. Under such circumstances, the rejection of the petitioner's application for registration on the ground of non-production of the pollution certificate is a totally irrelevant consideration and, consequently, non-production of pollution certificate ought not to have been taken into account by respondent No. 3 for the purpose of reaching his satisfaction as contemplated by section 19(3). Thus, non-prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, it becomes clear that when a public authority is prompted to take an action under a mistaken belief in the existence of a non-existing fact or circumstances, such a belief would be in bad faith and an administrative order, which is based on reasons of fact, which do not exist, must be held to be infected by abuse of power. In the present case too, when the petitioner made applications, seeking registration as a dealer for trading in coal, and when, for the purpose of trading in coal, no pollution certificate is required, the refusal to grant registration certificate, on the ground of non-production of pollution certificate, cannot but be regarded as a non-existent ground and such refusal suffers from abuse of power. (II) Non-submission of the registered lease deed for stock yard of the company for stone boulder: The second ground for rejection of the application for registration is that the petitioner has failed to supply the registered lease deed for the stockyard in respect of its stone boulder business. This ground too is a wholly irrelevant ground inasmuch as sales tax authorities have nothing to do with the fact as to whether a lease deed is or is not registered, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swar to Kunjaban, suffice it to point out that this ground too suffers from malice in law inasmuch as the respondents, particularly, respondent No. 3, appears to have not noted the requirements of the Companies Act, 1956, and the Companies (Central Government's) General Rules and Forms, 1956, inasmuch as the Companies (Central Government's) General Rules and Forms, 1956, envisages issuance of a fresh certificate of incorporation upon change of the registered office within the same State. As section 17A of the Companies Act, 1956, is relevant, the same is reproduced hereinbelow: 17A. Change of registered office within a State. (1) No company shall change the place of its registered office from one place to another within a State unless such change is confirmed by the regional director. (2) The company shall make an application in the prescribed form to the regional director for confirmation under sub-section (1). (3) The confirmation referred to in sub-section (1), shall be communicated to the company within four weeks from the date of receipt of application for such change. Explanation. For the removal of doubts, it is hereby declared that the provisions of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered office of company. (1) A company shall, as from the day on which it begins to carry on business, or as from the thirtieth day after the date of its incorporation, whichever is earlier, have a registered office to which all communications and notices may be addressed. (2) Notice of the situation of the registered office, and of every change therein, shall be given within thirty days after the date of the incorporation of the company or after the date of the change, as the case may be, to the Registrar who shall record the same: Provided that except on the authority of a special resolution passed by the company, the registered office of the company shall not be removed, (a) in the case of an existing company, outside the local limits of any city, town or village where such office is situated at the commencement of this Act, or where it may be situated later by virtue of a special resolution passed by the company; and (b) in the case of any other company, outside the local limits of any city, town or village where such office is first situated, or where it may be situated later by virtue of a special resolution passed by the company. (3) The inclusion in the annua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concerned Registrar of Companies, in prescribed form 18, the change in the address of the registered office and this had been done by the petitioner-company as far back as on March 12, 2010 itself. Situated thus, it becomes clear that the insistence of the respondents, particularly, respondent No. 3, that the petitioner-company shall produce a certificate mentioning therein the change in the address of the registered office of the company is a wholly irrelevant factor and ought not to have been made a ground for refusing to grant registration to the petitionercompany as a dealer. (IV) Subsequent withdrawal of the signature from the application in form 1 as an introducer of the applicant vide a communication dated December 31, 2010 While considering the above ground on which the certificates of registration are claimed by the respondents to have been declined, it is necessary to point out that it had never been communicated to the petitioner by the respondents that the petitioner's introducer had withdrawn by submitting a communication, dated December 31, 2010. The refusal to grant certificates of registration on the said ground, therefore, suffers from violation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 35. Conclusiveness of certificate of incorporation. A certificate of incorporation given by the registrar in respect of any association shall be conclusive evidence that all the requirements of this Act have been complied with in respect of registration and matters precedent and incidental thereto, and that the association is a company authorised to be registered and duly registered under this Act. A careful reading of section 35 shows that the petitioner had submitted to the respondents a certificate of incorporation issued under the Companies Act. This ought to have been treated as a conclusive evidence of all the requirements of the Companies Act, 1956, having been complied with by the petitioner-company. The requirement, therefore, of an introducer, in the case of a incorporated body, such as, Registrar of Company, does not arise at all. Logically extended, it would mean that the requirement of a registered dealer or by a responsible person introducing a person for being registered under the TVAT Act, 2004, is a requirement meant for persons other than an incorporated body, such as, a company, registered under the Companies Act, 1956. It would, thus, be transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to compensation on account of such acts of the respondents in not allowing the petitioner to carry on its business thereby causing the petitioner immense losses on account of wharfage and demurrage charges? I have already indicated above that a person becomes liable, as a dealer, to apply for registration under section 19(1) of the TVAT Act, 2004, and section 7(1) of the CST Act, 1956, only when he incurs taxable liability. In no uncertain words, section 19(1) of the TVAT Act, 2004, states that no dealer, while being liable to pay tax under the TVAT Act, 2004, shall carry on business as a dealer unless he has been registered and possesses a certificate of registration. Hence, the statutory obligation to compulsorily obtain, as a dealer, registration, is imposed on a dealer, when the dealer has already incurred the liability to pay tax under the TVAT Act, 2004. Similarly, section 7(1) of the CST Act, 1956, provides that every dealer, liable to pay tax under the CST Act, 1956, shall make an application for registration under the said Act. Section 7(2) of the CST Act, 1956, gives an option to a dealer to apply for registration under the CST Act, 1956, notwithstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Tripura and become thereby liable to pay tax under the local Sales Tax Act unless and until he is allowed to import coal into the State of Tripura. In case, the petitioner is not allowed to import coal from outside into the State of Tripura, he cannot sell any coal in the State of Tripura to become liable to pay tax under the TVAT Act, 2004, so that registration can be granted to him under the TVAT Act, 2004. Similarly, till the petitioner gets itself registered under the TVAT Act, 2004, he cannot be registered even under section 7(2) of the CST Act, 1956. As such, it is clear that the action of respondent No. 3 in refusing permission to the petitioner to import coal from outside Tripura was nothing, but a motivated approach to deny the petitioner registration both under the CST Act, 1956, as well as under the TVAT Act, 2004. As the action of the respondents/authorities concerned in refusing registration of the petitioner as a registered dealer is wholly untenable in law and discloses malice in law, the petitioner has considerable force, when it claims compensation for the losses, which it has suffered. In fact, in Smt. S. R. Venkataraman [1979] 2 SCC 491, referring to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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