B.K.Lala, Judicial Member - (1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 challenging the notice issued under rule 79 vide Memo No. 7736/CD dated January 3, 2000 on the ground, inter alia, that the notice was contrary to the provisions of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to "the Act, 1941").
(2.) THE petitioner submitted the returns for the four quarters ending March 31, 1993 under the Act, 1941 and claimed deduction under Section 5(2)Ca)(va) of the Act, 1941 out of the gross turnover on the ground that the wire rods and goods manufactured, i.e., wires are the same commodity and are covered under Sub -clause (xv) of Section 14(iv) of the Central Sales Tax Act, 1956. The petitioner since had paid tax on the purchase of wire rods, no tax therefore, was payable on the sale of wires. The respondent No. 1 by an order of assessment dated June 30, 1995 disallowed the claim for the consignment of sale of goods to Delhi. The claim under Section 5(2)(a)(v) however, was allowed considering the judgment of this Tribunal, that wire rods and wires were the same commodity. An appeal was filed before the respondent No. 2 disputing the rejection of the claim of consignment of goods sold at Delhi and consequently enhancing the gross turnover sales. The assessment order was modified by the respondent No. 2 in appeal and the relief as prayed for was granted, without interfering with the order of penalty. The issue regarding the claim under Section 5(2)(a)(va) that is, exemption of tax on wires, thus was not at all point for consideration in appeal.
(3.) LONG after the appellate order was passed the petitioner received a notice to show cause in form IX issued under Rule 79 of the Bengal Sales Tax Rules, 1941 under Memo No. 7736/CD dated January 3, 2000 asking the petitioner to show cause as to why the appellate order shall not be reviewed since the wire and wire rods being different commodities and the claim of deduction allowed under Section 5(2)(a)(va) was not justified. The amount of deduction which was allowed by an order dated June 30, 1995, therefore, has to be taxed at 4 per cent under Section 5(1)(e) of the Act, 1941. The show cause notice is contrary to the settled principles of law and the steps taken to review the appellate order only with an intention to levy tax is illegal. The notice, therefore, is liable to be set aside.;