Decided on January 21,1998

Lillooah Steel And Wire Co Ltd Appellant
West Bengal Commercial Taxes Appellate And Revisional Board Respondents


M.K.Kar Gupta, Technical Member - (1.) IN this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, the applicant has preferred an appeal against the order of the West Bengal Commercial Taxes Appellate and Revisional Board dated August 5, 1996 in Revision Case No. 495 of 1991.
(2.) THE applicant's case is that it is a company carrying on business from 23A, Netaji Subhas Road, Calcutta -700 001 holding registration certificate No. LR/4829A under the provisions of the Bengal Finance (Sales Tax) Act, 1941 (in short, "the 1941 Act"). The relevant assessment case had been heard on November 28, 1972 by Shri D. Basu Chowdhury, Commercial Tax Officer. The applicant produced before him all the statutory evidence including 868 declarations in form XXIV in support of its claim under Section 5 of the 1941 Act amounting to Rs. 81,32,276.28 and these facts were noted on records by the Commercial Tax Officer. He had drawn up an assessment order but before he could sign it he died. The successor -in -office of this deceased officer fixed a date for the hearing of the said assessment case once again. In the intervening period all the documents and evidences produced before Shri Basu Chowdhury were destroyed due to a devastating fire which engulfed the premises No. 23A, Netaji Subhas Road, Calcutta -700 001. As a result, the petitioner could not produce the declarations in form XXIV before the successor officer and hence the claims, preferred under Section 5 of the 1941 Act, were disallowed. The applicant came up in appeal and revision. While disposing the revision case, the West Bengal Commercial Taxes Tribunal (now renamed as the West Bengal Commercial Taxes Appellate and Revisional Board), in Revision Case No. 472 of 1975 -76, set aside the relevant assessment order with directions to the assessing authority to consider important materials like the assessment order left unsigned by the deceased officer. On remand the Commercial Tax Officer did not allow the claims preferred under Section 5 of the 1941 Act. Being aggrieved by this reassessment order, the applicant preferred an appeal but the appellate officer also confirmed the order of assessment. The applicant preferred a revision petition before the West Bengal Commercial Taxes Appellate and Revisional Board (in short, "the Board") and it has also been rejected by the Board by their order dated August 5, 1996. The applicant has approached this Tribunal against the order passed by the Board and has prayed that under the circumstances of the case the claims, preferred under Section 5 of the 1941 Act, by the applicant may be allowed. The case of the respondents in their affidavit -in -opposition is that the undisputed fact in this case is that the petitioner at no stage from the time of first assessment on December 22, 1973 by Shri Chatterjee has been able to produce statutory declaration forms in support of his claim for concessional rate of tax. The unavoidable consequence of this failure on the part of the applicant is that the concessional rate of tax would be rejected and the tax levied at full rate. The law as far as imposition of tax at the full rate shall take effect irrespective of the fact that the requisite declaration forms were allegedly in possession of the applicant and were also allegedly produced before late Shri Basu Chowdhury on November 28, 1972 in course of hearing in terms of notice in form VI. Assuming that the fact of such production was noted by late D. Basu Chowdhury in order sheet and also in an unsigned order which has come to be known as the "pro forma order", the fact remains that the assessment of the applicant was not completed on basis thereof because the "pro forma order" was never signed, sealed and dated by the deceased officer. The said "pro forma order" is not an order passed in regular course of official business. Therefore, it cannot be taken as a public document within the meaning of Section 35 of the Indian Evidence Act, 1872. The legal position is that the statutory declaration forms, if prescribed, are mandatory for entertainment of any claims of exemption or concessional rate of tax. Such a rejection of concessional rate of tax may cause some hardship to the petitioner but this hardship is unavoidable. There was no provision in the statute enabling grant of exemption from production of declaration forms on December 22, 1973, the day when the dealer was first assessed. It is the position of law prevailing at that time which will govern the case of the applicant. Alleged production of declaration forms at a stage which did not lead to actual assessment of the petitioner is not a discharge of legal obligation on him to produce declaration forms at the time of assessment.
(3.) IT appears that the facts in this case are not disputed. It is an admitted fact that the applicant produced before the Commercial Tax Officer, Rajakatra Charge on November 28, 1972 all statutory evidence including 868 declarations in form XXIV in support of its claim under Section 5 of the 1941 Act. These facts were noted in the records by the Commercial Tax Officer who reserved his order. But he died before passing the order. However, a draft assessment order, said to be in the handwriting of the deceased officer, was located in the file. In this draft assessment order there is a recital to the effect that the dealer's claims under Section 5(2)(a)(ii) on account of sales to registered dealers in West Bengal were checked with sale bill copies, sales tax account register and 868 valid XXIV forms covering sales amounting to Rs. 81,32,276.28 which should be allowed. There is also no dispute about the fact that between December 28, 1972 (when the C.T.O. recorded production of all the documents) and the subsequent date of hearing fixed by the officer, successor to the deceased officer, there was a devastating fire engulfing the premises where the dealer's office is located and in which all the documents are reported to have been destroyed. The successor officer, therefore, could not examine the declaration forms and did not allow any of the claims covered by the declaration forms. When the matter was examined by the West Bengal Commercial Taxes Tribunal in Revision Case No. 472 of 1975 -76, it held that the draft assessment order (referred to as the pro forma assessment order) was an important material which was available to the assessing authority when he made the assessment. But there was no reference in the order of assessment made by the assessing authority about this draft order. The West Bengal Commercial Taxes Tribunal, therefore, sent back the case to the assessing authority for fresh assessment according to law. Thereafter, such assessment was made on January 25, 1986 by the assessing authority who held that reference to the draft assessment order recorded by the previous Commercial Tax Officer was not of any help to the dealer as the books of accounts and supporting declaration forms could not be produced by the dealer before the successor authority. The appeal against that order also was rejected by the Assistant Commissioner, Commercial Taxes who observed further that unfortunately the petitioner -dealer did not avail of the amended provision of the Act and did not apply to the Commissioner for such exemptions. He accordingly rejected the appeal preferred before him. In Revision Case No. 496 of 1991 which was filed before the Board by the applicant against the appellate order passed by the Assistant Commissioner, Commercial Taxes, the Board held that the draft was without signature of the officer concerned and was not admissible under the law. It could not be treated as a public document as provided under Section 74 of the Indian Evidence Act, 1872. The Board further held that the observation of the West Bengal Commercial Taxes Tribunal in the Revision Case No. 472 of 1975 -76 to the effect that this draft assessment order was an important material and was available to the assessing authority when he made the impugned assessment was not a direction but simply an opinion which was not fortified by any statutory provision. The Board has also held that under such circumstances even if the draft order is produced, no action can be taken on the basis of the unsigned document which was inadmissible under the law and therefore no adverse presumption can be drawn against revenue for inability to produce the draft order. The Board accordingly rejected the revision petition.;

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