Decided on July 21,1999

Barindranath Chowdhury Appellant
Commercial Tax Officer, Howrah Railway And Ors. Respondents


D.Bhattacharyya, Technical Member - (1.) IN this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, the applicant has challenged the order of assessment for four quarters ending on March 31, 1980 under the Bengal Finance (Sales Tax) Act, 1941 (in short "the 1941 Act") in respect of partnership firm (in short "the firm") of which he is a partner, and has challenged the orders in appeal and revision passed in respect of that assessment.
(2.) THE firm, The New Supply Agency, is a dealer registered under the 1941 Act and carries on business of reselling various engineering stores. For the period of four quarters ending March 31, 1980 (hereinafter called "the relevant period") it had submitted returns, but these were not in time and were delayed by about four years. However, payment was made in time of taxes which he thought were due from it. Assessment for the relevant period was made by the Commercial Tax Officer, Howrah, respondent No. 1, on February 6, 1984. At the time of hearing for this purpose the applicant could not produce the declarations in form XXIV and form X. Therefore respondent No. 1 did not give any benefit under Section 5(1)(bb) of the 1941 Act. The applicant claims that at this hearing the applicant had prayed for adjournment on the ground that the file containing declaration forms was not readily traceable at that time. This prayer, we have been told, was made only orally and not in writing. The respondent No. 1 allegedly not only rejected the prayer, he even did not record the fact that such a prayer was made. Being aggrieved by the order of assessment the applicant preferred an appeal before respondent No. 2, the Assistant Commissioner, Commercial Taxes, Howrah, and produced before him the requisite declaration forms. On examining the forms respondent No. 2 noticed that the forms were received by the applicant prior to the date of order of assessment. In his order dated August 19, 1993 the respondent No. 2 confirmed the assessment observing in the process that he had no power to entertain the declaration forms at that stage because the authorised representative failed to explain why such declaration forms were not produced before the assessing authority. Being dissatisfied the applicant preferred a revision petition before the West Bengal Commercial Tax Appellate and Revisional Board (in short, "the Board"). The Board in its order dated August 13, 1998 agreed with respondent No. 3 and dismissed the revision petition. The present application is against this order. The only issue requiring decision is whether the production of declaration forms at the stage of appeal entitled the applicant, in the facts and circumstances of this particular case, to benefits under Section 5(1)(bb) of the 1941 Act. The relevant rule is sub -rule (9) of Rule 27A of the Bengal Sales Tax Rules, 1941 (in short "the 1941 Rules"), which reads as follows : "(9) The declaration in form XXIV or XXIVA shall be produced by a dealer up to the time of assessment under Section 11 by the first assessing authority : Provided that if the appellate or revisional authority is satisfied that the dealer concerned was prevented by sufficient cause from producing such declaration within the aforesaid time, that authority may allow for reasons to be recorded in writing such declaration to be produced within such further time as that authority may permit." The applicant claims that the declaration forms of the relevant period were misplaced. This was the "sufficient cause" which prevented him from producing the declarations at the time of assessment. Mr. R.K. Das, Advocate, appearing for the applicant states that the applicant had misplaced the declaration forms in his own house - -how can he prove it except by a mere statement ? On the basis of the statement, he submits, the appellate or revisional authority should have been satisfied that he was prevented by sufficient cause from producing the same and therefore should have allowed the declaration to be produced at this stage in terms of the proviso to sub -rule (9) of Rule 27A. It was admitted that the authorised representative did not properly present the case before the appellate authority. But the revisional authority, the Board, was properly briefed and therefore, Mr. Das submits, the Board should have allowed the production of declaration forms at the stage of revision. The Board refused to do this and dismissed the revision which according to the applicant is against the proviso to Rule 27A(9) of the 1941 Rules.
(3.) MR . Das draws our attention to the argument put forward by the respondents in paragraphs 7 and 8 of their affidavit -in -opposition. It is contended that the petitioner, in the return submitted by him, did not make any claim of concessional rate of tax. The implication is that since he did not claim the benefit, he is not entitled to it. It is moreover contended that, at the time of hearing for assessment, the petitioner never made any prayer for the production of declaration forms. Therefore, the question of rejecting that prayer does not arise. Appearing for the applicant Shri R.K. Das, Advocate, disputes this contention and submits that the claim had been made. In the order of assessment respondent No. 1 wrote "no claim is allowed in absence of any evidence.............". This observation proves, according to Mr. Das, that there was a claim. Moreover if one examines the gross turnover reported in the return and the amount of tax paid voluntarily, one can easily see that these do not match unless there is a claim for benefit of concessional rates of taxes. Shri Das, therefore, submits that there was a claim which was ultimately rejected in violation of the proviso to Rule 27A(9) and requests that for the sake of justice the concerned order regarding assessment be set aside.;

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