J.Gupta, Judicial Member -
(1.) APPLICANT No. 1, Indian Chain Pvt. Ltd., is a private limited company (hereinafter referred to as, "the company") duly registered under the Bengal Finance (Sales Tax) Act, 1941 (in short, "1941 Act"). Initially, its accounting year was from January to December; but from October 20, 1976 it was changed and was made from July to June. According to the applicant -company it was again changed to make it from November to October effective from July 1, 1987. This change was effected without prior permission of the Commercial Tax Officer (CTO), the concerned assessing authority, who however was later intimated about the change and the registration certificate was amended on February 5, 1988 incorporating the change. With the permission of the Registrar of Companies a consolidated profit and loss account was made for the two periods, viz., from July 1, 1986 to June 30, 1987 and the broken year from July I, 1987 to October 31, 1987. The CTO made assessments for 1986 -87 ending on June 30, 1987, for the broken year for the period from July 1, 1987 to October 31, 1987 and for the next assessment year ending on October 31, 1988. For the assessment of the broken year ending on October 31, 1987 (covering the 4 months from July 1, 1987 to October 31, 1987), the CTO assessed turnover tax at the rate of 1.5 per cent. According to the company, assessment at such rate is illegal on the ground that the assessment of turnover tax ought to have been made at the rate of 1 per cent and not at the rate of 1.5 per cent and that the rate of turnover tax for the said broken year should have been on the basis of the aggregate of gross turnover under the 1941 Act and the West Bengal Sales Tax Act, 1954 (in short, "the 1954 Act") for the 4 months from July 1, 1987 to October 31, 1987. The company preferred an appeal against the assessment, but the Assistant Commissioner (respondent No. 2) in disposing of the appeal affirmed the assessment. The company then preferred a revision application before the West Bengal Commercial Taxes Appellate and Revisional Board (in short, "the Board"). But the Board upheld the contention of the Revenue that the rate of tax payable by the applicant -company for the gross turnover of the said 4 -month period should be 1.5 per cent and accordingly, the Board dismissed the revision application.
(2.) BEING aggrieved by the said decision the company has filed the instant application before this Tribunal praying for declaring the impugned assessment as bad, and for a declaration that after the amendment of the registration certificate the first new accounting year after the year ending on June 30, 1987 was the broken year ending on October 31, 1987 and that the broken year consisted of 4 months. The applicant has also prayed for other consequential reliefs. The respondents' stand as set -forth in their affidavit -in -opposition is that the assessing authority rightly assessed the turnover tax at the rate of 1.5 per cent for the broken period because the assessment period relates to the broken part of the period of 16 months ending on October 31, 1987 and there is no substance in the company's claim that the new accounting year from November to October commenced on July 1, 1987 and that since during the accounting year from July, 1987 to June, 1988 the gross turnover exceeded Rs. 1 crore the turnover tax at the rate of 1.5 per cent was proper one. On the said ground the respondents defend the order of the respondent Nos. 1 and 2 and of the Board.
(3.) IN the instant case the applicant's liability to pay turnover tax under Section 6B of the 1941 Act is not in dispute. What is disputed is the rate at which the company is liable to pay the tax for the period from July 1, 1987 to October 31, 1987. Sub -section (3) of Section 6B at the relevant point of time provided for two types of rates of tax, viz., 1.5 per cent and 1 per cent. For ready reference the relevant part of Sub -section (3), as it stood at the relevant point of time, is quoted below :
"(aa) One and a half per centum of such part of the turnover as specified in Sub -section (2), if the aggregate of the gross turnover under this Act and the gross turnover under the West Bengal Sales Tax Act, 1954, of the dealer liable to pay such tax exceeds rupees one crore but does not exceed rupees fifty crores during the year in respect of which or part of which the turnover tax is levied ;
(b) one per centum of such part of the turnover as specified in Sub -section (2), if the aggregate of the gross turnover under this Act and the gross turnover under the West Bengal Sales Tax Act, 1954, of the dealer liable to pay such tax exceeds rupees fifty lakhs but does not exceed rupees one crore during the year in respect of which or part of which the turnover tax is levied ;"
Thus, clause (aa) indicates that a dealer is liable to pay turnover tax at the rate of 1.5 per cent of such part of turnover as specified in Sub -section (2) only when - -
(a) the aggregate of the gross turnover under the 1941 Act and the 1954 Act exceeds Rs. 1 crore, and
(b) such aggregate gross turnover means the aggregate turnover in course of a year - -
(i) in course of which, or
(ii) part of which, the turnover tax is levied.;