P.C.BANERJI - (1.) THIS application under article 226 of the Constitution of India filed in the High Court at Calcutta has been transferred to this Tribunal in terms of section 15 of the West Bengal Taxation Tribunal Act, 1987, for disposal.
(2.) THE applicant is Messrs. Bani Polymers, a partnership firm, having its place of business at 56, Topsia Road, South, Calcutta-700 046. The case of the applicant may be briefly stated as follows : The applicant is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 and the West Bengal Sales Tax Act, 1954, and started business on 1st March, 1979. The applicant is also registered as a small-scale industrial unit with the Directorate of Cottage and Small-scale Industries with effect from the 25th February, 1980. The applicant started manufacture of rubber goods from the 1st January, 1980. Thereafter it applied to the Assistant Commissioner of Commercial Taxes for eligibility certificates on 3rd January, 1981, under rule 3 (66) of the Bengal Sales Tax Rules, 1941 and under section 4aa of the West Bengal Sales Tax Act, 1954. The applicant claimed that it had produced all the necessary vouchers with regard to the plant and machinery purchased by it. It purchased plant and machinery for a sum of Rs. 64,229. 21 till 1st April, 1981. Besides, it had taken on lease some machineries for a period of 5 years from Messrs. Bani Tyre and Rubber Co. , a sister concern, against a monthly payment of Rs. 1,000. The applicant had also taken on lease the land and structure at premises No. 56, Topsia Road, South, Calcutta-700 064, belonging to the said sister concern, for a period of 10 years on a monthly rental of Rs. 500. The Assistant Commissioner by his order dated 29th April, 1981, rejected the prayers for eligibility certificates on the following grounds, namely, (i) that it was not a new industrial unit, (ii) that the applicant had procured machineries otherwise than by purchase and the correct valuation of the machineries so procured cannot be furnished; and that all the purchase vouchers and other documents, etc. , for purchase of plant and machinery have not been kept, and (iii) that proper accounts of purchase of raw materials have not been maintained in the respective ledgers. Against the said order, revisional petitions were filed with the Additional Commissioner of Commercial Taxes, who by his order dated 3rd August, 1981, confirmed the Assistant Commissioner's order of rejection of eligibility certificates by observing that the procurement of machinery by way of lease was excluded from the scheme of tax holiday and hence the applicant was disentitled to obtain the eligibility certificates. He, however, did not deal with other issues as it was considered by him unnecessary. It is mainly this particular order of the Additional Commissioner which is under challenge.
(3.) IN its affidavit-in-reply the applicant has introduced certain facts which were not there in its writ petition filed in the High Court in June, 1982. It has now stated that the applicant had purchased all those leased machineries in the month of September, 1981 and that the total investment on account of all the plant and machinery aggregated Rs. 2,95,788. 86. It claimed that since September, 1981, i. e. , after the order of the Additional Commissioner was passed, there was no question of leasing of plant and machinery. Curiously enough, this fact as stated earlier was not mentioned in the writ petition filed in 1982. At this stage we cannot possibly take this into consideration, since the respondents had no opportunity to make their submission thereon.;