Tarun Chatterjee, J. - (1.) The writ petitioner Shri Kartick Chandra Parui has been carrying on business under the trade name of Parui Engineering Works. He received a notice in form 29 dated June 25, 1999 issued by the Commercial Tax Officer, Kadamtala Charge, Howrah thereby initiating proceedings to make assessment of the writ petitioner for four quarters ending March 31, 1998 under Section 45(1) of the West Bengal Sales Tax Act, 1994 (in short, "the Act"). However, it appears from the record that no further action was taken by respondent No. 1 in pursuance of the aforesaid notice. Subsequently on April 27, 2001 the Commercial Tax Officer concerned issued further notices fixing a date of hearing for assessment in respect of the above periods. In the intervening periods, the Legislature has introduced a new section, i.e., 46A wherein it has been provided that returns filed along with challan of payments of tax by June 30, 1999 must be deemed to have been assessed on December 31, 1999. By operation of such newly introduced section, according to the writ petitioner, returns filed by the writ petitioner were deemed to have been assessed on December 31, 1999 notwithstanding the fact that notices of assessment under Section 45(1) were issued by the concerned Commercial Tax Officer before December 31, 1999. In view of the subsequent introduction of Section 46A of the West Bengal Sales Tax Act, 1994 (hereinafter referred to as "the Act") the writ petitioner by a letter dated May 19, 2000 intimated the concerned Commercial Tax Officer of such legal position and also in the said letter he has challenged the jurisdiction and authority of the concerned Commercial Tax Officer to issue notices of assessment for the aforesaid periods. In spite of raising the question of jurisdiction of the concerned Commercial Tax Officer to proceed to assess the writ petitioner under Section 45(1) of the Act and in spite of introduction Section 46A of the Act, the Commercial Tax Officer by an order dated June 19, 2000 made an ex parte assessment of the returns for the periods in question by raising a demand of Rs. 6,14,386. Challenging the said assessment the petitioner filed an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 before the West Bengal Taxation Tribunal (hereinafter referred to as "the Tribunal"). Before the Tribunal, the writ petitioner challenged the ex parte order of assessment, inter alia, on the grounds that by virtue of the operation of Section 46A, the concerned Commercial Tax Officer had no authority or jurisdiction in proceeding with the assessment under Section 45(1) of the Act. By the impugned order, the Tribunal rejected the contention of the writ petitioner made in the said application by holding that the assessment in respect of the returns furnished by the writ petitioner was correct and legal and since the writ petitioner had not complied with the provisions of Section 46A of the Act, there was no ground to hold that by virtue of Section 46A of the Act "deemed assessment" in respect of the periods mentioned above could be said to have been made for the periods in question. The Tribunal rejected the application of the writ petitioner mainly on the ground that although the writ petitioner along with the returns deposited taxes and interest and other documents but had failed to deposit a sum of Rs. 20 on account of interest and therefore it could not be said that the writ petitioner had complied with the provisions for "deemed assessment" under Section 46A of the Act. Feeling aggrieved by and dissatisfied with the order of the Tribunal the writ petitioner has come up to this Court under Article 226 of the Constitution.
(2.) Appearing on behalf of the writ petitioner, Mr. Mihir Kumar Bhattacharya, learned counsel for the writ petitioner, submitted before us that the Tribunal had failed and neglected to appreciate the true scope and effect of Section 46A and the process of "deemed assessment" prescribed under it. He further contended that the Tribunal, while coming to the conclusion that the returns filed by the assessee were not in compliance with the requirement of Section 46A, had failed to consider that the writ petitioner had substantially complied with Section 46A of the Act. According to Mr. Bhattacharya, in view of the admitted fact that the returns relating to the assessment years were filed by the writ petitioner along with copies of receipted challan evidencing the payment of tax and interest admitted in such returns by him and in view of Sub-section (4) of Section 30 of the Act, the Tribunal ought to have held that there was substantial compliance with the provisions under Section 46A of the Act as the writ petitioner after finalisation and reconciliation of books of accounts had filed further returns wherein tax payable along with interest had also been deposited and the receipted challan showing such payment were annexed with the returns. Accordingly, Mr. Bhattacharya contended that the writ petitioner had complied with the requirements laid down in Clause (1) of Section 46A. It was further contended by Mr. Bhattacharya that even assuming there was any short payment of tax or interest by the writ petitioner even then a fresh assessment of the same returns may be initiated only in the manner prescribed under Sub-section (2) of Section 46A where the method for initiating a fresh assessment has been provided under the provisions of law. According to Mr. Bhattacharya the respondent No. 1 could not act outside the scope of provisions of law and initiate fresh assessment proceedings of returns already deemed to have been assessed. It was lastly contended by Mr, Bhattacharya that the Tribunal had failed to appreciate that when there was short payment of tax and interest by the assessee, the Commercial Tax Officer had or has the authority to charge interest and penalty under Sub-section (5) of Section 46A. Therefore, Mr. Bhattacharya contended that as the writ petitioner admittedly had made payment of tax and interest according to his returns, the fact that there was shortage of payment of interest from the amount actually payable by him could not render the returns ineligible for "deemed assessment". Mr. Bhattacharya relied on a decision of the Supreme Court in the case of Instalment Supply (Private) Ltd. v. Union of India regarding the proper interpretation of the word "deemed assessment" within the meaning of Section 46A of the Act. The submissions so made by Mr. Bhattacharya were strongly denied and contested by the learned counsel appearing for the department. According to the learned counsel for the department, since the entire interest payable was not paid along with the tax and other documents in compliance with Section 46A of the Act, the writ petitioner was not entitled to invoke Section 46A of the Act, and therefore, the Commercial Tax Officer was fully justified in taking recourse to Section 45 of the Act as it was rightly observed by him that there was failure on the part of the assessee to comply with Section 46A of the Act.
(3.) Having heard the learned counsel appearing for the parties and after considering the submissions made by them, we are of the view that in the facts and circumstances of the case and in view of the admitted fact that the interest to the tune of Rs. 20 only was not deposited along with the returns, tax and challan but substantial amount of interest was already paid, the Commercial Tax Officer ought to have held that the writ petitioner was entitled to claim "deemed assessment" within the meaning of Section 46A of the Act and therefore it was wrong on his part to assess taxes for the periods in question in terms of Section 45 of the Act. Before we advert to the questions posed before us it is necessary to refer some of the relevant provisions of the Act which we are required to consider for deciding this case. Chapter 5 of the Act deals with returns and payment of tax, interest, penalty and deduction of amount at source towards payment of taxes, etc. Sub-section (4) of Section 30 of the Act says that before any dealer furnishes a return required by Sub-section (2) or Sub-section (3), he shall, in the prescribed manner, pay into a Government treasury or the Reserve Bank of India the full amount of tax due from him under this Act according to such return, and shall furnish along with such return a receipt from the Treasury or Bank showing the payment of such amount : Provided that a registered dealer shall, subject to such conditions as may be prescribed, pay in the prescribed manner the tax payable under this Act for any prescribed part of the period for which a return is required to be furnished under Sub-section (2) or Sub-section (3) by such date as may be prescribed after the expiry of the prescribed part of the period as aforesaid. Chapter 7 deals with assessment of tax, imposition of penalty, payment, collection and recovery of tax, interest and penalty and refund of tax, interest and penalty. Now we refer to Section 46A of the Act which according to the writ petitioner is the section by which the returns submitted by the writ petitioner for the periods in question must be held to be in compliance with such provision. Section 46A of the Act runs as follows : "46A. Assessment deemed to be made in certain cases.--(1) Notwithstanding anything contained in Sub-section (1) of Section 45 or Sub-section (1) of Section 45A, returns furnished in accordance with the provisions of Sub-section (4) of Section 30 by a registered dealer having a gross turnover of sales, or gross contractual transfer price, or an aggregate of gross turnover of sales and gross contractual transfer price, in a year below three crore rupees in respect of the year or years comprising the period or periods commencing on and from the day immediately following the latest year or part of a year comprising the period or periods for which assessment under Sub-section (1) of Section 45 has been made and ending on or before the 30th day of June, 1999 (hereinafter referred to as the eligible period) shall be accepted as correct and complete, and all assessments in respect of such eligible period shall, subject to the pr1ovisions of Sub-section (2), be deemed to have been made under Sub-section (1) of Section 45 on the 31st day of December, 1999 : Provided that the provisions of this sub-section shall not apply in respect of any such year or part of a year where-- (a) a registered dealer has not furnished return together with receipted challan showing payment of tax and interest, if any, for any return period falling within the eligible period, or (b) any assessment made under Sub-section (1) of Section 45 in respect of a registered dealer relating to any year falling within the eligible period has been set aside under Section 79, Section 80, or Section 82, with the direction to make fresh assessment, or (c) subsequent to any seizure made under Section 66 of accounts, registers or documents of a registered dealer, any report indicating any evasion of tax by such registered dealer during any period falling within the eligible period has been received by the Commissioner prior to the date of coming into force of this sub-section. (2) Where assessment is deemed to have been made under Sub-section (1) in respect of a registered dealer relating to any year or part of a year falling within the eligible period and where it appears to the Commissioner on information or otherwise that in a return furnished by such registered dealer under Section 30 in respect of any period of such year or part of a year,-- (a) certain sale price or part thereof, contractual transfer price or part thereof, or specified purchase price or part thereof, has not been disclosed in such return, or has escaped levy of tax thereon at the appropriate rate, erroneously or otherwise, or (b) the deductions from the gross turnover of sales were claimed under Sub-section (3) of Section 17 in such return, erroneously or otherwise, in excess of what is admissible under Sub-section (3) of that section, or the deductions so claimed in such return are not supported by evidence referred to in Sub-section (3) of that section, or (c) claim for lower rate of tax has been preferred in such return under Sub-section (2), or Sub-section (2A) of Section 17 in respect of any turnover of sales without any valid evidence referred to therein, which has resulted in reduction of the amount of tax payable by such registered dealer or the State Government has suffered loss of revenue on any of the grounds referred to in Clause (a), Clause (b), or Clause (c) of this sub-section on account of such registered dealer in respect of such year or part of such year, the Commissioner shall, within a period of four years from the date of assessment deemed to have been made in accordance with the provisions of Sub-section (1), after giving such registered dealer a reasonable opportunity of being heard, reopen such assessment by an order in writing in the prescribed manner for making a fresh assessment of tax under Sub-section (1) of Section 45 : Provided that the fresh assessment under Sub-section (1) of Section 45 for such year shall be made, notwithstanding the provisions of Section 48, on any date within two years from the date of passing the order in writing for reopening the assessment in respect of such year, which is deemed to have been made in accordance with the provisions of Sub-section (1) of this section. (3) Where an assessment in respect of a registered dealer has been deemed to have been made in accordance with the provisions of Sub-section (1) for any year or part of a year falling within the eligible period, such registered dealer shall verify the related returns with his books of accounts and documents required to be furnished for substantiating his gross turnover of sales, claims for exemption from payment of tax or for payment of tax at a lower rate, as mentioned in such return, and if he finds that there is any short payment of tax or interest, he shall furnish a declaration in the prescribed form on or before the 31st day of March, 2001, together with a receipt challan showing payment of such balance amount of tax or interest. (4)(a) Where a dealer brings to the notice of the Commissioner by making an application to him within six months from the date of assessment deemed to have been made in accordance with the provisions of Sub-section (1) in respect of any year that due to his error in fact or in law, an amount of tax or interest has been paid by him in excess of what was payable in respect of any return period falling within such year ; and (b) where a dealer has furnished a declaration as referred to in Sub-section (3) on or before the 31st day of January, 2001, he may, if necessary, furnish such declaration again on or before the 31st day of March, 2001 and if such dealer finds that on the basis of declaration furnished by him on or before the 31st day of March, 2001, an amount of tax or interest has been paid by him in excess of what was payable by him in respect of any return period relating to any year falling within the eligible period, and bring it to the notice of the Commissioner by making an application to him on or before the 30th day of September, 2001, the Commissioner may, if he is prima facie satisfied about such error in fact or in law as stated in Clause (a) or about such fact as stated in Clause (b), within one year from the date of receipt of such application, reopen such assessment, by order in writing, for making a fresh assessment of tax for such year under Sub-section (1) of Section 45 : Provided that the fresh assessment of tax under Sub-section (1) of Section 45 for such year shall be made, notwithstanding the provisions of Section 48, on any date within two years from the dateof passing of the order in writing for reopening of the assessment deemed to have been made in accordance with the provisions of Sub-section (1) of this section in respect of such year. (5) The Commissioner shall, while making the fresh assessment in pursuance of Sub-section (2) in respect of any registered dealer for any period, direct such dealer to pay, in addition to the tax so assessed and penalty imposed, if any, under Sub-section (1) of Section 45, a sum not less than twice, but not exceeding thrice, the amount of tax assessed by way of further penalty : Provided that no penalty under this sub-section shall be imposed where such registered dealer furnishes a declaration in accordance with the provisions of Sub-section (3).";