MONOJ KUMAR MUKHERJEE,J. - (1.) THE plaintiffs brought the suit for declaration that a certificate issued under the Public Demands Recovery Act for realisation of sales tax dues from them was illegal, ultra vires and without jurisdiction and for setting aside and cancellation of the said certificate. The plaintiffs also prayed for an injunction restraining the respondent, the State of West Bengal, for executing such certificate for realisation of sales tax and/or dues for the year 1367 B. S. and for subsequent years.
(2.) THE case of the plaintiffs, in short, was that one Nityananda Nag, since deceased, used to run a sweetmeat shop under the name and style of "deshbandhu Mistana Bhandar" in the town of Burdwan. Owing to his old age and various ailments, he closed down the business and duly intimated the commercial tax authorities the fact of such closure by surrendering his registration certificate being No. B. N. 597a. Thereafter, Nityananda transferred the goodwill of the business by a deed of gift in favour of the plaintiffs. The plaintiffs, in the later part of 1973, with their own capital, started the business afresh under the same name and style as the goodwill was transferred to them. According to the plaintiffs, Nityananda did not transfer his business absolutely to the plaintiffs and the building in which he used to carry on his business and the furniture lying therein were transferred to his two sons, Bijoy Chandra Nag and Basanta Kumar Nag, for the plaintiffs were tenants under them. The aforesaid business of the plaintiffs had no taxable sale and turnover and, as such, they were not at all liable to pay any sales tax, nor was any registration certificate necessary for the plaintiffs to run the business and the shop. In the year 1367 B. S. , a certificate of demand for arrears of sales tax amounting to Rs. 676. 95 was served upon the plaintiffs under section 7 of the Public Demands Recovery Act, calling upon them to pay the said amount as transferee of the whole business of Nityananda Nag and, in the certificate of demand, the registration number of Nityananda was shown against the name of the plaintiffs even though the registration certificate was surrendered by Nityananda Nag when he closed down his business. The plaintiffs filed objection under section 9 of the Public Demands Recovery Act denying their liability on the ground that they were not the transferees of the business of Nityananda Nag and they never carries on such business as such transferees. The Certificate Officer upheld the objection of the plaintiffs, but the appeal preferred against the said decision by the respondent-State was allowed. The plaintiffs thereafter preferred a revision before the Commissioner, Burdwan Division, but the same was dismissed. It was further alleged in the plaint that the plaintiffs were being harassed by successive distress warrants issued by the certificate department of the Government arising out of case No. 11 S. T. of 1965-66 and so they were obliged to file the suit after serving a notice under section 80 of the Civil Procedure Code. The State of West Bengal contested the suit by filing a written statement. A preliminary objection as to the maintainability of the suit was taken on the ground that the civil court had no jurisdiction to entertain the suit in view of the provisions of section 19 of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act ). It was further contended that the ownership of the business of the registered dealer, Nityananda Nag, was transferred to the plaintiffs by a deed of gift dated 8th March, 1963, and an intimation about the same was given to the Commercial Tax Officer by a letter dated 11th May, 1964. The plaintiffs filed an application under section 7 read with section 17 of the Act and the Commercial Tax Officer decided the plaintiffs to be the transferees and amended the registration certificate accordingly. On such amendment, additional tax was assessed upon the registered dealer "deshbandhu Mistana Bhandar" for the quarter ending Chaitra, 1367 B. S. , and demand notice was served upon them on 26th May, 1965. As the dealer failed to pay the taxes, a certificate case No. 11 S. T. of 1965-66 was started against the dealer. The matter went up to the Commissioner of the Burdwan Division, but the plaintiffs, having failed to obtain any relief, filed the speculative suit. On the above averments, the State of West Bengal prayed for dismissal of the suit.
(3.) ON the pleading of the parties, the following two principal issues were framed by the learned trial court : (1) Has the civil court jurisdiction to try the suit ? (2) Is the impugned certificate valid and legal or liable to be cancelled or amended or set aside ?;