- (1.) This appeal on a certificate granted by the High Court of Calcutta raises the question of the interpretation of S.5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941 (Bengal Act VI of 1941), hereinafter called the Act.
(2.) The material facts are as follows: The appellant is a public limited company registered as a dealer under the Act, having its registered place of business at Calcutta. In respect of the accounting year ending with 31st December, 1954, in the return for the year the assessee had shown its gross turnover at Rs.70,99,928-10-0 and claimed exemption under two heads, namely, (i) under S.5(2)(a)(i) of the Act Rs. 1,33,730-6-6; and (ii) under S. 5(2)(a)(ii) thereof Rs. 69,65,979-9-6. After deducting the said amounts from the gross turnover the assessee showed its taxable turnover at Rs. 218-9-0 and deposited the tax of Rs. 9-12-6 on the said amount in the treasury. The Commercial Tax Officer by notice dated April 22, 1955, fixed August 4, 1955, for hearing the assessee in respect of its return. Under S. 5 (2) (a) (ii), the appellant in order to claim exemption thereunder had to furnish declaration forms duly filled in and signed by registered dealers to whom the goods were sold by it. After taking some adjournments of the enquiry it appears that in the second week of January 1957 the assessee found that its file containing 147 declaration forms received from its dealers in respect of the goods received from it was missing. The assessee, it is said, made various attempts to get duplicate forms of declaration from the dealers, but on account of circumstances over which it had no control and because of the unhelpful and hostile attitude of the Commercial Tax Officer within whose jurisdiction the said dealers functioned, it was not able to furnish the duplicate forms for all the declarations that were lost. 'On August 8, 1957, the summoning the dealers to produce the necessary documents in order to prove that they had issued the declaration forms to him, but the said officer did not issue the requisite summons to the parties concerned. The assessee then filed an application to the Commissioner of Commercial Taxes, West Bengal, for directions to issue duplicate declaration forms, but that application was rejected. The revision filed to the Revenue Board was also dismissed. On November 21, 1957, the Commercial Tax Officer made an order of assessment disallowing the assessee's claim for exemption in respect of the said sales made to the purchasing registered dealers amounting to Rs.22,46,00-0-6 and levied on it additional tax of Rs.1,49,778-4-6. The assessee thereafter filed a petition under Art. 226 of the Constitution in the High Court of Calcutta for issuing an order directing the respondents, i.e., the Commercial Tax Officer and the Commissioner of Commercial Taxes, West Bengal, not to implement the said assessment order. The said application came up, at the first instance, before Sihna, J., who dismissed the same. On appeal a Division Bench of the said High Court confirmed the order of Sinha, J. Hence the present appeal.
(3.) At the outset we must make it clear that in the view we are taking on the construction of S. 5 of the Act we do not propose to go into the question whether the department was responsible for preventing the assessee from furnishing duplicate forms of the declarations alleged to have been lost or on the question whether the department went wrong in not summoning the dealers to produce the relevant documents, to establish that the declaration forms alleged to have been lost were in fact issued by them.;