- (1.) THESE are four review petitions against the order of the Board of Revenue dated 30th December, 1949, on petitions Nos. 10, 10A, 10B and 10C of 1949. I have taken them up together for the sake of convenience as the grounds are more or less the same in all the cases and the parties are the same. A preliminary objection was taken on behalf of the learned Commissioner of Commercial Taxes that these petitions of review were not admissible under Section 20(4) of the Bengal Finance (Sales Tax) Act, 1941, as the Board of Revenue is not a person appointed under Section 3. Besides, the petitions for review are out of time. The above objection is summarily overruled on the authority of Section 6(1) and (2) of the Bengal Board of Revenue Act, 1913, which authorises any party aggrieved by an order of the Board to apply for a review within three months from the date of the order.
(2.) I notice that in my order in question I had stated "I am satisfied that the predecessor-in-interest of the petitioners had been assessed on the basis of a gross turnover exceeding 15 lakhs of rupees for the last year during which they transacted business". This statement unfortunately was based on a misconception of facts. The actual gross turnover for the year ended 31st December, 1944, was Rs. 13,36,823-2-3 and not Rs. 15,47,723-1-6 as previously understood by me. The last figure was arrived at without deducting the value of the goods returned and credit allowed as shown in the returns. The practice in the Department appears to have always been to deduct the price of goods returned and credit allowed, which is not disputed by the opposite party. The principle of this appears to have been accepted in Rule 48(3)(a) of the Sales Tax Rules, though this sub-rule came into effect only from the 17th April, 1945. As according to Rule 71, the jurisdictions of the Assistant Commissioners of Commercial Taxes and that of the Commercial Tax Officers in respect of Section 11 of the Act were mutually exclusive, an Assistant Commissioner could assess the tax under Section 11 only in respect of a dealer (or his predecessor) whose gross turnover of the previous year exceeds Rs. 15 lakhs or whose taxable turnover of the previous year exceeds Rs. 3 lakhs. This condition not having been fulfilled, the assessment in respect of the first of the four years in question could have been legally made only by a Commercial Tax Officer. So, it is ordered in review that the assessment in respect of the year ending 31st December, 1945, should be done afresh by the Commercial Tax Officer who has jurisdiction over the area in question.
(3.) THE assessment for the year ending 31st December, 1945, being without jurisdiction and, therefore, illegal, there could be no question of the taxable turnover for the next three years being more than 3 lakhs as contended by the opposite party. The opposite party evidently mean by this that the taxable turnover as determined by the Assistant Commissioner during the years in question did not fall below 3 lakhs. But the assessment itself being without authority, the latter assumption cannot be accepted. And as at present under the law only a Commercial Tax Officer can make assessments under Section 11, all the four petitions are allowed and the cases are sent back so that a fresh assessment may be made in each case by the Commercial Tax Officer.;