Decided on September 02,1963



- (1.)THE petitioner, Tarak Nath Gupta, carries on business under the trade name Messrs. B. G. Tobacco Concern (India) and is a dealer, inter alia, in Zarda, registered as such under the Bengal Finance (Sales Tax) Act. For the period December 14, 1957 to November 10, 1958, the petitioner filed a return under section 10 (2) of the Bengal finance (Sales Tax) Act and from out of his gross turnover, inter alia, claimed exemption in respect of all sums received by sale of Zarda, namely, a total sum of Rs. 53,940. 54 np. He did make the claim on the theory that Zarda was tobacco and as such exempt from levy of sales tax. The respondent Commercial Tax Officer rejected the claim with the following observations:
"under this head the dealer has claimed deduction amounting to Rs. 53,940. 54 np. The dealer sold only "jarda", which is a taxable item. I made enquiry from the dealer's representatives as to why they have claimed exemptions of sales of 'jarda'. They told that they were under the impression that sales-tax was withdrawn on 'jarda' being an item of tobacco. In the revised return filed in a consolidated form for the period from 14. 12. 1957 up to Dewali 2015 S. Y. the deductions have been claimed on account of sales of 'jarda'. They also referred to their petition dt. 31st January, 1958 applying for lump payment on floating stock as stood on 13. 12. 1957. I find from the records that the dealer's prayer petition dt. 31. 1. 1958 as referred above was rejected by my predecessor in this office and the communication of the order of rejection was made to the dealer vide memo. No. 857/2569a dt. 20. 2. 1958. I also don't find from the records that the dealer was never given any commitment from this office that sales of 'zarda' is not taxable. Thus as 'zarda' has been always a taxable item and still now it is taxable under the B. F. S. T. Act, 1941, this claim of exemption as made by the dealer, on account of sales of 'zarda' is not tenable under the law, hence the entire claim is disallowed and charged to tax. I find that such sales as claimed by the dealer as exemption were made to unregistered customers within the Province of West Bengal. It is also seen from Register XXIII, that the dealer purchased goods on the strength of Declaration forms for this period. "

(2.)THEREAFTER, the respondent Commercial tax Officer issued a notice of demand on the petitioner calling upon him to pay a sum of Rs. 9009. 58 np. as sales tax.
(3.)AGGRIEVED by the order, the petitioner moved this Court, under Article 226 of the Constitution, praying for a writ of Certiorari for the quashing of the order of assessment, dated August 31, 1960, and the notice of demand issued on the basis thereof, for a writ of Prohibition restraining the respondents from proceeding further with the levy and collection of tax and for a writ of Mandamus directing the respondents to cancel the impugned order of assessment and obtained this Rule.

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