B.N.Banerjee, J. - (1.) The petitioner company moved this application against an order of assessment of sales tax as also against a notice calling upon it to show cause why there should not be a penalty imposed upon it under Section 11 (4B) of the Bengal Finance (Sales Tax) Act, 1941.
(2.) The Rule was issued on three limited grounds, namely, grounds Nos. I, II and VII. The petitioner has, pending this Rule, got some relief against the order of assessment of tax from the departmental authorities. Mr. Arun Kumar Dutta, learned Advocate for the petitioner, did not, therefore, press grounds Nos. I and VII. He, however, urged ground No. II, which is couched in the following language: "For that the delegation provided for under Rule 71 of the Bengal Finance (Sales Tax) Rules cannot include and cover the power founded on Section 11(4B) of the Act inserted by the West Bengal Act XIV of 1961 inasmuch as the existing delegation referred to a notification made on 4th February, 1946 when Section 11(4B) was not on the Statute Book".
(3.) In order to understand this argument, it is necessary for me to refer to certain provisions of the Bengal Finance (Sales Tax) Act, 1941. Section 15 of the Bengal Finance (Sales Tax) Act, 1941 permits delegation of the Com-missioner's powers in the following language: "Subject to such restriction and conditions as may be prescribed, the Commissioner may by order in writing delegate any of his powers under this Act (except those under Sub-section (2) of Section 22) to any person appointed under Section 3 to assist him". Under Rule 71 of the Bengal Sales Tax Rules there are certain limitations prescribed in respect of delegation of Commissioner's powers Rule 71 is couched in the following language: "The Commissioner shall not delegate to any officer appointed to assist him any powers other than those enumerated below in respect of the sections mentioned, nor shall he delegate any power specified in column 8 to any officer below the rank specified in the corresponding entry in column 4: Serial No Section. Description of power Designation of officer 5. 11. To make an assessment of tax or penalty, or to fix a date for payment or to extend a date for payment of such tax or penalty or to allow the payment of such tax or penalty by instalments and to exercise allother powers under section 11 of the Act. Commercial Tax Officer On June 14, 1954, the Commissioner of Commercial Taxes made the following notification concerning delegation of his powers: In exercise of the powers conferred by Section 15 of the Bengal Finance (Sales tax) Act, 1941, (Bengal Act VI of 1941), I hereby delegate to all Commercial Tax Officers appointed to assist me under Section 3(1) of the said Act, read with Rule 1(2) (f) of the Bengal Sales Tax Rules framed thereunder, the power under the different sections of the Act as specified below to be exercised in respect of dealers within their jurisdiction: Serial No. Section Description of power delegated. 4. 11. To make an assessment of tax or penalty or to fix a date for payment or to extend a date for payment of such tax or penalty or to allow thepayment of such tax or penalty by instalments and to exercise all other powers under section 11 of the Actother than for any period not falling beyond the year ending on a date immediately following 26th May,1948 in respect of a dealer whose gross turnover of the year immediately preceding such period exceeds Rs. 15 lakhs or whose taxable turnover in such previous year exceeds Rs. 3 lakhs." Long after the making of the notification, on August 4, 1961 Sub-section (4B) was incorporated in Section 11 of the Bengal Finance (Sales Tax) Act, 1941, couched in the following language: "(4B) Where any dealer is in default in making payment of any tax payable under this Act after the assessment of such tax has been made and the date for the payment there of has expired, the Commissioner may by notice issued in this behalf, direct that in addition to the amount of arrears of such tax, such sum not exceeding that amount as the Com-missioner may specify in the notice, shall be paid by the dealer by way of penalty, by such date as may be specified in the notice, and the amount of any such tax or penalty which remains unpaid after the date so specified in the notice shall be recoverable as an arrear of land revenue payable to the Collector: Provided that if the Commissioner is satisfied that the default in making payment of the tax has been due to circumstances beyond the control of the dealer, he may, by order recording reasons for so doing, exempt the dealer from payment of any penalty".;