M.N. Roy, J. - (1.)The main point to be decided in this case is whether sales tax could be levied on lottery tickets and if they are goods within the meaning of Section 2(d) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter be referred to as the said Act), which has denned "goods" to include all kinds of movable property other than actionable claims, stocks, shares or securities. Initially sales tax was neither levied nor imposed on lottery tickets. But after the coming into force of' the Constitution (46th Amendment) Act, the State Legislature has promulgated the West Bengal Taxation Laws (Second Amendment) Act, 1984 (hereinafter be referred to as the said 1984 Amendment), and thereby, they have sought to levy 20 per centum of such part of the taxable turnover of a dealer as represents the sale of lottery tickets.
(2.)On such an application was moved under Article 226 of the Constitution of India amongst others by the respondent Shri Dipak Dhar, stating himself to be the proprietor of M/s. Dhar Agencies, on 27th April, 1984. In the petition the legality and validity of the said 1984 Amendment whereby an amendment of the provisions of the said Act tax has been sought to be levied on the sale of lottery tickets, was challenged and the learned Judge issuing the rule, also granted an interim order of injunction restraining the respondents concerned in the rule from taking any steps and/or proceeding for the purpose of levy, imposition and collection of tax on the sale of lottery tickets under the provisions of Section 5(1)(aa), 6(1)(dd), Section 5(2)(a)(vb) and Section 5(2)(b)(iva) of the said Act, till the disposal of the rule, with liberty to the respondents concerned to apply for variation and/or vacation of the interim order upon notice to the petitioners in the rule. It should also be noted that the learned Judge also made the rule returnable before the Division Bench of this Court under Rule 26 of the Rules of the High Court at Calcutta, relating to application under Article 226 of the Constitution of India. The appeal in question was preferred by the respondents in that rule, against such order of issuing the rule and perhaps the appellants were aggrieved by the interim order as made. It should be noted that such appeal was preferred without approaching the learned Judge or the Division Bench for having the interim order as made, varied, vacated or modified and as such Dr. Pal claimed this appeal should not be entertained. It should be noted that during the pendency of the appeal the appellants filed an application dated 11th May, 1984, asking for vacation, modification or variation of the interim order as made. Since the learned Judge issuing the rule had referred the matter to a Division Bench under Rule 26 as indicated above and this Bench has jurisdiction to hear appeals from judgment and orders made under Article 226 of the Constitution of India, the learned Advocates appearing before us stated that this Bench will have jurisdiction to hear the rule which has been so referred for determination before a Division Bench. Such being the position, with consent of all concerned, we have heard the rule.
(3.)The original writ petition was moved on behalf of three petitioners and it has stated that petitioner No. 1, Shri Dipak Dhar, carries on a partnership business under the name and style of "Dhar Agencies" and he also carries on business, inter alia, as agents of various State lotteries, organised by different States including the State of West Bengal. The said petitioner is also stated to be carrying on business as stockists of the various State lotteries which are sponsored and organised by different States other than the State of West Bengal. Petitioner No. 2, M/s. Agrani Enterprises, is also stated to be a registered partnership firm and it has been stated that at all material times, the partners of the said firm were (a) Sri Bhaskar Chatterjee, (b) Smt. Rekha Chatterjee, (c) Smt. Jyotsna Chatterjee, (d) Smt. Bani Chatterjee and (e) Smt. Sahana Chatteijee. That partnership has further been stated to be a registered one and it would appear that they also carry on business, inter alia, as agents of the various State lotteries like petitioner No. 1. Apart from the above, petitioner No. 3(a), (b) and (c) have been stated to be the partners of a firm by the name of "Annapurna Lottery Agency" and they have also been stated to be carrying on the business as agents of various State lotteries sponsored and organised by the different States including the State of West Bengal. It was the claim and case of the petitioners that State lotteries are sponsored and organised under auspices of various State Governments, who organise and run the State lotteries and sell the lottery tickets to the different agents, who in their turn either sell these tickets to the wholesalers or to the individual customers. It was the case of the petitioners that the agents are allowed a certain percentage of commission on the price of the lottery ticket and normally the percentage which is allowed by the West Bengal State Lotteries is about 25 per cent on the face value of the tickets and some other States allowed 20 per cent commission to the agents on the face value of the tickets.