KHAS DHARMABAND COLLIERY CO PRIVATE LTD Vs. MEMBER BOARD OF REVENUE WEST BENGAL
LAWS(CAL)-1970-9-30
HIGH COURT OF CALCUTTA
Decided on September 15,1970

KHAS DHARMABAND COLLIERY CO PRIVATE LTD Appellant
VERSUS
MEMBER BOARD OF REVENUE WEST BENGAL Respondents

JUDGEMENT

P.B.MUKHARJI,J - (1.) THIS is a reference under section 21 (3) of the West Bengal Finance (Sales Tax) Act, 1941. The question raised for an, answer is as follows : " Whether the Board of Revenue was in error of law in construing the agreement dated the 7th April, 1948, between the petitioner and the Bengal Coal Co. Ltd. , and in its conclusion that the said agreement invested the petitioner with the status and/or incidence of 'dealer' under the relevant law ?"
(2.) THE question arises on the following facts : The Khas Dharmaband Colliery Co. Private Ltd. is a dealer registered under the Bengal Finance (Sales Tax) Act, 1941. The assessment relates to the annual period ended on 31st March, 1955. The Commercial Tax Officer assessed the dealer in respect of the above-mentioned period and in doing so added Rs. 3,00,933-10-0 to the dealer's gross turnover and charged the same to tax by his order dated the 15th November, 1957. The dealer then went in appeal before the Assistant Commissioner of Commercial Taxes who rejected the appeal of the petitioner and upheld the assessment order of the Commercial Tax Officer. Thereafter the dealer filed a revision petition before the Commissioner of Commercial Taxes. That petition was heard by the Additional Commissioner of Commercial Taxes and rejected by his order dated the 18th November, 1959. Not content with this the dealer then filed a revision petition before the Board of Revenue, West Bengal, which also rejected the revision petition of the dealer and upheld the order of the Additional Commissioner of Commercial Taxes. Attempt to make the Board refer to this court certain questions of law having failed, the dealer came up to this court and got an order for reference on the question set out above. The whole case of the dealer can be set out at this stage to appreciate the contention raised in this reference. The contentions and the relevant facts are set out in the dealer's application for revision under section 20 (3) of the Bengal Finance (Sales Tax) Act, 1941, and appear at pages 19 and 20 of the printed paper-book. These facts and contentions on behalf of the dealer are as follows :
(3.) THE dealers contend that they acted only as middlemen. The commodity is coal which is controlled by the Colliery Control Order, 1945. The production, distribution and even the method of distribution fall within the ambit of the Colliery Control Order. It is contended that the property in the coke or coal can be transferred only by the producer, namely, the colliery to the persons who are given permits by the Coal Controller. The wagons for movement of coal or coke from the railway heads to the permit-holders are, it is said, also controlled by the said Controller. The substance of this contention is that the colliery owners deal with the permit-holders through the instrumentality of middlemen like the dealer in the present case. In support of that contention attention is drawn to the Colliery Control Order which expressly recognised the existence of middlemen. It is contended also that the colliery owners received from the Coal Controller sanction in favour of the consumers and indented the railways for wagons and booked the sanctioned quantity of coal under the respective permits in the names of the permit-holders who were the purchasers of the said goods in the State of West Bengal. For the dealer it is also said that the railway receipts issued on despatches in every case were F. O. R. colliery and they showed the colliery as the consignor and the permit-holder as the consignee and that they were taken by the colliery and sent to the consignee direct.;


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