- (1.) The instant application has been filed against the judgment and order of the learned Tribunal dated 13th September, 2007, by which applicant's writ petition was partly dismissed. Before the learned Tribunal the challenge was against the action of the respondent-State, of attempting to levy tax on sale by the appellant herein treating the appellant being a dealer within the definition of the West Bengal Finance (Sales Tax) Act, 1941, (hereinafter referred to as the said Act).
(2.) The fact for which the said action was taken to the learned Tribunal and ultimately brought this matter to this Court are shortly put hereunder: The appellant is a statutory body constituted under section 3 of the Major Port Trust Act, 1963, (hereinafter referred to as the said 1963 Act). By virtue of this Act the Administration Control and Management of the Calcutta Port vests on the appellant. The trustees are appointed from the persons having varied public interest. Under section 5 such Board of Trustees is a body corporate. Section 35 of the said Act empowers the Board to execute work within or without the limits of the port arid to provide appliances as it may deem necessary or expedient. Such works and appliances include wharves, quays, docks, jetties, moorings, cranes, scales, light house, pilot boats, etc. Section 61 provides for sale of goods if rates and rents are not paid. Section 62 provides for disposal of goods not removed from the premises. Section 63 indicates how the sale proceeds are to be dealt with towards payment of liens, claims, charges, demurrage, penalties etc. It would be clear from the aforesaid statutory provision that the port is not involved in any activity of carrying on business of sale of good only unclaimed, unused unserviceable, discarded goods are sold in discharge of statutory functions for recovery of charges etc. In respect of the goods so disposed of in exercise of its lien for rates and further disposal of used obsolete stores, machineries and equipments the petitioner under the erroneous impression that it was liable to tax on such disposal as sales under the provisions of the Bengal Finance (Sales Tax)) Act, 1941 got itself registered as a dealer and paid tax for some period. It collected the same from the person to whom such goods has been transferred. On realizing its mistake that it was not liable to pay the tax under 1941 Act in respect of such transfer the petitioner approached the Sale Tax Authorities for cancellation of its registration and contended that it was not liable to pay any tax. Proceedings relating to such controversies were before the authorities under 1941 Act and thereafter, ultimately the West Bengal Commercial Taxes. Tribunal by its two separate orders dated 18th March 1980 and June 4, 1980 passed in respect of four quarters ending March 1966 and four quarters ending March 1968 respectively held that the petitioner was not liable to be treated as a dealer and not liable to pay any tax in respect of the goods disposed of by it.
(3.) Learned Tribunal after considering the decisions of the Supreme Court on two issues held that going by the definition of the dealer in Bengal Finance (Sales Tax) Act 1941, the appellant being a statutory body is liable to pay tax for the sale held in discharge of its duty. It was also held that the State Government has competence to enact sale tax incorporating the definition of dealer. But learned Tribunal held the said amendment of the definition of dealer cannot be given any retrospective operation.;