- (1.) The Court :- Both the above writ petitions are filed challenging the order passed by the authority i.e. Additional Commissioner, Commercial Taxes, West Bengal under the West Bengal Sales Tax (Settlement of Dispute) Act, 1999. At the threshold, before entering into the merit, Court enquired about the maintainability of the writ petitions before the single Bench of this Court. The very foundation of such question is based on L. Chandra Kumar's case reported in 1997(105) STC 618 (SC). The penultimate paragraph of the judgment has given a new dimension in hearing the writ matters by a single Bench of High Court challenging the order of the taxation authority as regards levy, assessment, collection and enforcement of tax. According to the Supreme Court, the Tribunal made under Article 323B of the Constitution of Indian is the Court of first instance as regards challenge of the above. Therefore, my reading is that the Tribunal is replacement of a single Bench of the High Court taking the writ matters. If anybody is desirous he can approach the Division Bench of this High Court against such order of the Tribunal.
(2.) However, by following such Article 323B of the Constitution of India, a Tribunal has been formed under the pronounced Act i.e. West Bengal Taxation Tribunal Act, 1987. The preamble speaks that the Tribunal is made for the adjudication or trial of any disputes, complaints or offence in respect to the matters relating to levy, assessment, collection and enforcement of any tax under any specified State Act in pursuance of Article 323B of the Constitution of India and for matters connected therewith and incidental thereto. Jurisdiction of the Tribunal has been provided under section 6 of the Act. It will be applicable in the scheduled Acts framed under section 5 therein. It has the jurisdictional power and authority exercisable immediately before the day of implementation to all Courts including the High Court but excluding the Supreme Court of India. However, in view of L. Chandra Kumar's case (supra), the High Court is also included upto the single Bench being a Court of first instance but not the Division Bench being Court of second instance, which regularly we observe from the allocation of business. Section 8 provides extraordinary jurisdictional power under which a person aggrieved by any order passed or action taken pertaining to any matter within the jurisdiction of the Tribunal may make any application to it for the redressal of his grievance on any of the grounds referred in sub section 3 therein. Sub section 3 is as follows : "3) Save as provided expressly in this Act, the Tribunal shall not ordinarily admit an applicable referred to in sub-section (1) unless it is satisfied that- (a) The applicant has availed of all remedial measures available to him under the relevant specified State Act; or (b) The remedial measure available under the provisions of the relevant specified State Act are not adequate and shall cause undue hardship to the applicant; or (c) The application referred to in sub section (1) involves a substantial question of law relating to the interpretation of the Constitution of India or the specified State Act rules framed thereunder or of jurisdiction of any authorities under the specified State Act."
(3.) Mr. Sumit Chakroborty, learned counsel appearing in support of the petitioner harped on the explanation under section 8(1) of the Act saying that for the purpose of this sub section 'order' means an order made by the authority under any specified State Act; and 'action' means action taken by any authority under any of the specified State Act. As I have understood, he want to say that order or action should be under the specified Schedule of the State Act. Therefore, when matter in relation to levy, assessment, collection and enforcement of any tax under the specified State Act of the schedule is available then and then alone the jurisdiction of the Tribunal can be invoked but not otherwise. He cited my own judgment reported in 2001 (123) Sales Tax Cases 129 (Amitava Mitra v. State of West Bengal & Ors.). However, both the cases are not similarly placed. There, I held in favour of the petitioner because the West Bengal Taxation Tribunal Act, 1987 was not made applicable since the relevant Act was not scheduled at all. But, here the present Act is supplemental to the Act already scheduled. The only difference is that instead of amending the original Act a supplemental Act was introduced. Preamble of the Act clearly speaks that whereas it is expedient to provide for enforcement of payment of, and settlement of dispute relating to, arrear tax, penalty or interest under the West Bengal Sales Tax Act, 1994 etc, the Act in question will be applicable. Intention of the legislature to resolve the dispute in a summery manner under the Act from the stage it is pending but not the intention to by pass the parent Act which is to be governed by the Tribunal. Therefore, if any, dispute arises before the designated authority he can safely invoke the jurisdiction of the Tribunal.;