- (1.) THIS petition under Art. 226 of the constitution of India is directed against the order of assessment made by the Assistant Commissioner of Commercial Taxes (Respondent No. 1) on february 7, 1962 against the petitioner firm under the West Bengal Taxes on entry of Goods into Local Areas Act, 1955 (hereinafter referred to as 'the act'); and the order of May 24, 1962 made by Respondent No. 2, Commissioner, Commercial Taxes, dismissing the petitioner's appeal against the said order of Respondent No, 1, and the certificate proceedings in Certificate case no. 47 S. T. /62-63, instituted by the respondents to recover the tax 'assessed by the impugned order.
(2.) THE petitioner's case is that the same persons entered into partnership agreements to carry on two supplementary business under the name of two firms, namely, the petitioner Air Carrying corporation-carrying on the business of a common carrier of goods by Air, and Respondent no. 3, the Indain Roadways, carrying on business of a carrier of goods by road. It is stated in the petition that when the petitioner firm is in need of backload for the purpose of properly flying the aeroplanes chartered by it, it takes over the quantity required from the Respondent No. 3 of goods which have been consigned to the latter for carriage by road.
(3.) IN February and March, 1959, respondent No. 3 received certain consignments of tea to be carried from siliguri to Calcutta by road, the consignee being the Central Bank of India ltd. After the Repondent No. 3 had advised the Central Bank of India Ltd. that the goods would be carried by road, the petitioner requested the Respondent No. 3 to supply some backload for its chartered flights, and in pursuance of such request the Respondent no. 3 supplied some of the goods consigned with them by two Manifests dated 25th Feb. and the 8th March, 1959, respectively (Ann. 'b' ). By two letters of the 2nd and 9th March, 1959, the Respondent No. 3 informed the Central bank of India that though the said goods were consigned to be carried by road by respondent No. 3, they were, in fact, being carried by air and requested the bank to amend the Bill of Entry for the purpose of payment of the Entry tax under the provisions of the Act, and the Bank by its letter of the 13th and 14th March, 1959, written to Respondent No, 3, acknowledged a note of this fact on the 17th March and the 7th April. The Taxes payable under the provisions of the Act in respect of these consignments were accordingly paid by the Central Bank of India but such payment was made by the Bank on the basis that the said goods had been transported by road, owing to their inadvertence. On the 3rd Augst', 1959, a notice under section 10 of the Act was served upon the petitioner calling upon the petitioner to pay tax in respect of the same consignments for which the tax had already been paid by the Central Bank.;