M.M.DUTT, J. - (1.) THESE two appeals are at the instance of the Union of India and they are directed against the judgment of Chittatosh Mookerjee J, whereby the earned Judge made the two Rules obtained by the appellant on its applications under Art. 226 of the Constitution, absolute in part.
(2.) THE appellant manufactures certain ammunition in its Gun and Shell Factory at Cossipore, Calcutta. The appellant made two applications for its registration as a dealer, both under the Bengal Finance (ST) Act, 1941 and the Central ST Act, hereinafter referred to as the State Act and the Central Act respectively. Two registration certificates, both dt. 26th Sept., 1957 were granted to the appellant by the Commercial Tax Officer, 24 Parganas Charge. The said certificater were cancelled by respondent no. 1, the Commercial Tax Officer, Shambazar Charges, by his memo dt. 20th April, 1961 on the ground that the same were void ab-initio. The certificates were cancelled presumably because the Commercial Tax Officer, 24 Parganas Charge, had no territorial jurisdiction in respect of the said factory of the appellant. It, however, appears that on fresh applications of the appellant, the respondent no. 1., the Commercial Tax Officer, Shambazar Charge, issued registration certificates dt. 13th Sept., 1962. The respondent no. 1 made ex-pate assessments under s. 11(2) of the State Act and the Central Act by his orders dt. 13th March, 1964 and 14th March, 1964 for the period from 1st April, 1957 to 12th Sept., 1962. It is, however, not disputed that no tax was assessed from April 1, 1957 to 12th Sept., 1962. Being aggrieved by the said assessment orders, on 17th Aug., 1964, the appellant preferred two appeals to the respondent no. 2, the Asstt. Commissioner of Commercial Taxes, North Circle, who dismissed the same as barred by limitation. Against the said orders of the respondent no. 2, the appellant filed revisional applications to the respondent no. 3, the Addl. Commissioner of Commercial Taxes and thereafter to the respondent no. 4, the Board of Revenue, but in vain. The revisional applications were dismissed were dismissed as in the opinion of the revisional authorities the appellant had failed to explain the delay in preferring the appeals beyond the period of limitation. Thereafter the appellant moved this Court under Art. 226 of the Constitution and obtained the Rules out of which these appeals arise.
(3.) THE learned Judge took the view and, in our opinion, rightly, that sitting in the writ jurisdiction he was unable to interfere with the views of the appellant and the revisional authorities that the appellant had failed to explain the delay. The contention of the appellant that it was not a delay within the meaning of the State Act or the Central Act was not decided by the learned Judge as the point was not agitated by the appellant before the respondent on. 1 and there was also no specific decision by the latter on the same . Further, the learned Judge held that the respondent no. 1 did not record the information on the basis of which he was satisfied that the provisions of s. 11(2) of the State Act and the Central Act should be invoked. It was pointed out by the learned Judge that assuming that the appellant was a dealer, the question whether it failed to get itself registered within the meaning of s. 11(2), would be a relevant matter and, in that connection, due weight should be given to the fact that the appellant had previously made applications for registration under the State Act and the Central Act. The learned Judge took the view that it was for the authorities to decide at the first instance whether in those circumstances it was permissible to make assessments under s. 11(2) for the period during which the previous registration certificates remained effective and whether the provisions of s. 11(2) should be applied to the interval of time between the date of the cancellation of the first registration and the date of the second registration. The learned Judge held that the respondent no. 1 acted in excess of his jurisdiction in making the decision without recording any finding whether the appellant had failed to get itself registered for the period for which the assessment was made under s. 11(2). In that view of the matter, the learned Judge made the Rules absolute in part and quashed the assessment orders and the orders passed by the appellate and revisional authorities with liberty to the respondents to proceed afresh in the matter in accordance with law.;