SANTOSH KUMAR CHOWDHURY AND ANOTHER Vs. SENIOR JOINT COMMISSIONER OF COMMERCIAL TAXES, ASANSOL CIRCLE AND ANOTHER
LAWS(ST)-2010-2-4
SALES TAX TRIBUNAL
Decided on February 26,2010

Santosh Kumar Chowdhury And Another Appellant
VERSUS
Senior Joint Commissioner Of Commercial Taxes, Asansol Circle And Another Respondents

JUDGEMENT

- (1.) PETITIONER No. 1, Sri Santosh Kumar Chowdhury, carries on a proprietary business under the name and style of M/s. Sindhu Coal Traders at Amrasota More, Ranigung, P. O. Searsole Rajbari, District Burdwan and petitioner No. 2 is the authorized representative holding power of attorney. According to the petitioner, he filed a revision petition on August 11, 2006, before the Additional Commissioner of Commercial Taxes, Durgapur Zone (in short, "respondent No. 2") against the appellate order dated June 20, 2006 of the Deputy Commissioner of Commercial Taxes, Asansol Circle (in short, "DCCT/ASC") passed in appeal Case No. A -54/05 -06 in relation to the assessment period four quarters ending on March 31, 2003. The said revision petition was registered as revision Case No. 12/DP/06 -07. It has been submitted by petitioner No. 1 that during pendency of the revision petition, he, on December 22, 2008, filed an application in form 1 under the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 (in short, "the SOD Act") for settlement of arrear taxes in disputes. Along with the said application, a challan showing payment of Rs. 12,874 being the requisite amount for seeking settlement of disputes was also filed. Upon such application, petitioner No. 1 received a provisional certificate granted by DCCT/ASC in terms of provision of section 8(1) of the SOD Act. This certificate was issued on December 24, 2008. The petitioner on the same date by a letter intimated respondent No. 2, that he had submitted an application before DCCT/ASC praying for settlement of disputes in respect of arrear taxes and disputes in relation to the assessment period four quarters ending on March 31, 2003. However, on January 2, 2009, the petitioner received an order passed by respondent No. 2 in respect of the revision Case No. 12/DP/06 -07 as referred to hereinabove. It appeared from the said order that respondent No. 2 confirmed the appellate order though he had been duly informed that the petitioner had filed an application in form 1 praying for settlement of the disputes of arrear taxes under the SOD Act. Following this, the petitioner on February 6, 2009, received an intimation from Senior Joint Commissioner of Commercial Taxes, Asansol Circle (in short, "respondent No. 1") communicating that his application in form 1 filed under the SOD Act had been rejected.
(2.) IN this petition filed under section 8 of the West Bengal Taxation Tribunal Act, 1987, the petitioners have challenged the order dated June 18, 2008 passed by respondent No. 2 and the order passed by respondent No. 1 rejecting the application in form 1 as communicated under memo No. 2360/DC(AS) dated January 29, 2009. Sri B. Bhattacharyya, learned advocate, appearing on behalf of the petitioners, challenged the order of respondent No. 2 on the ground that the petitioner had not been given reasonable opportunity of being heard. He draws our attention to the observation made by respondent No. 2 in his order dated June 18, 2008. In paragraph 2 of the said order, it has been observed, "the revision was originally fixed on January 17, 2007 and thereafter eight adjournments have been granted. The case was finally fixed on September 29, 2008, for hearing. None appeared on that date. In such circumstances, I cannot prolong the case any more. So the case is disposed of on merit". It is pointed out by the learned advocate that though the case as per order of respondent No. 2 was fixed on September 29, 2008 but the final order was passed on June 18, 2008 and this was communicated to the petitioner under memo No. 1198CT(D) dated February 3, 2008 which was received by the petitioner during the month of January 2009. It is submitted by the learned Advocate that the petitioner received the provisional certificate for settlement in form 2 on December 24, 2008, i.e., before communication of the order of respondent No. 2. It is strongly urged by the learned advocate that the order of respondent No. 2 was passed after December 22, 2008, when the petitioner filed an application in form 1 before DCCT/ASC praying for settlement of arrear taxes in disputes in terms of the provision of the SOD Act. Section 11 of the SOD Act categorically provides that "no appellate authority or revisional authority shall proceed to decide any appeal or revision or both, as the case may be, under the relevant Act relating to any period in respect of which an application has been made by an applicant under section 5". Proviso to the said section empowers the authorities concerned to decide such appeal or revision if a certificate of settlement is refused to the applicant by an order passed by the designated authority in writing. Since respondent No. 2 was duly informed about filing of the application under section 5 of the SOD Act, he was barred from taking up the revisional case. From the delayed issue of the order dated June 18, 2008, learned advocate draws a conclusion that the order in question was not actually passed on the date mentioned. The applicant submitted the application in form 1 on December 22, 2008 and it received provisional certificate in form 2 on December 24, 2008 and duly communicated the same to respondent No. 2 but no enquiry was made to ascertain the veracity of the claim of the petitioner. Even it is submitted by the DCCT/ASC that the order of respondent No. 2 was received in petitioner's office on January 2, 2009. Similarly, this order was not communicated to the DCCT/ASC obviously prior to the issue of provisional certificate in form 2 which had been issued under memo No. 2087 dated December 29, 2008. It is further urged by the learned advocate that such cancellation of the provisional certificate in form 2 was made without allowing any opportunity to the petitioner which is against the provision of section 8(2) of the SOD Act. It is, therefore, prayed that in the facts and circumstances of the case, the order of rejection of respondent No. 1 as well as the order of respondent No. 2 disposing of the revision petition be set aside and consequentially the disputes pertaining to the period be treated as settled.
(3.) SRI B. Majumdar, learned State Representative appearing on behalf of the respondents, has submitted that the date of hearing was fixed on May 29, 2008 and not on September 29, 2008. The said date has wrongly been quoted in the order dated June 18, 2008, perhaps due to some typographical error and this date was known to the advocate of the petitioner who appeared on April 30, 2008 as it appears in the signature of the said advocate in the margin of the order sheet of the relevant revision case records. There was no appearance on behalf of the petitioner on May 29, 2008. The order was reserved on that date and on June 18, 2008, the said order was passed. However, the order was despatched on December 3, 2008. It is admitted by the learned State Representative that there was delay in sending the order dated June 18, 2008 passed by respondent No. 2 but because of this delay, it should not be construed that the order in question was anti -dated as has been alleged by the petitioner. It cannot be inferred that the order in question was not passed actually on the purported date and it is also admitted by the learned State Representative that had this been communicated earlier, the petitioner would not have been granted provisional certificate under section 8 of the SOD Act in form 2. DCCT/ASC also admitted that since he had no knowledge about the disposal of the revision case filed before respondent No. 2, provisional certificate under the SOD Act had been issued. There was no impropriety on the part of respondent No. 1 in rejecting the provisional certificate issued to the petitioner.;


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