Decided on December 12,1979

STATE OF BIHAR Respondents


VERMA,J. - (1.)THE Commercial Tax Officer of the District of Malda in West Bengal issued notice to the petitioners directing them to appear either personally or through their agent and to produce the books of a mentioned in the notice with respect to the business of supplying stone from Rajmahal in the District of Santhal Parganas in Bihar to the Department of Irrigation in West Bengal. This impugned notice (see annexure 12 of the writ application) is purported to have been issued under section 11 read with section 14 of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as "the Bengal Act" ). The Commercial Tax Officer, by another order (as contained in annexure 11 of the writ application), held the petitioners liable for payment of sales tax under the Bengal Act and in the event of the failure to comply with the orders, the petitioners were threatened with prosecution under section 22 of the said Act.
(2.)IN this writ application filed under articles 226 and 227 of the Constitution of India the petitioners have challenged the validity of the two orders, referred to above, in annexures 11 and 12. In order to appreciate the points involved for a decision of this Court I am putting in short the facts of the case.
The petitioners happened to be partners in the business of M/s. Maskalaiya Stone Supplying Agencies, which is a partnership concern with their work site at village Maskalaiya in police station Rajmahal, District Santhal Parganas, in the State of Bihar. The firm has been obtaining permits under the Bihar Minor Minerals Concession Rules, 1964, for the quarrying and manufacturing stone boulders/ballasts by exploiting the plots at various sites of Rajmahal in Bihar. The petitioners have been carrying on the business of mining and supplying stone materials in the name and style of the said firm. In response to a tender issued by the Superintending Engineer, Central Irrigation Circle, West Bengal (respondent No. 5), the petitioners submitted tender and finally on acceptance of it, they entered into a contract and took up the work of supplying materials from Rajmahal to the Irrigation Department at Malda in West Bengal (see annexures 1 to 5 ). The petitioners were required to supply at site, as per direction of the engineers, pakur or similar quality of stone boulders which the petitioners were quarrying and manufacturing under permits held by them. It is the case of the petitioners that in response to the request and work-orders issued from time to time by respondent No. 6 and by the S. D. O. of the department concerned the petitioners transported the stone materials on tugs and barges and through other means of transport from Rajmahal in Bihar to various work sites in West Bengal. Further case of the petitioners is that the materials so transported under the execution of the contract were unloaded and stacked under the supervision and control of the authorities of the Irrigation Department in accordance with the orders issued by respondent No. 6.

(3.)IT further appears that in response to a notice issued under section 16 (5) of the Bihar Sales Tax Act, 1959, read with rule 12 of the Central Sales Tax (Bihar) Rules, 1957, the petitioners were required to appear before the Superintendent of Commercial Taxes, Sahibganj, at Santhal Parganas (respondent No. 2), and as directed to produce documents and other papers and on consideration of the facts and circumstances of the case, it was held that the case of the petitioners was within the ambit of section 3 (a) of the Central Sales Tax Act, 1956, and was accordingly assessed under the Sales Tax Act and the department concerned in Bihar noticed the petitioners to deposit the assessed amount of sales tax under chalan within forty-five days from the date of the service of the notice (see annexure 8 ). It was contended that supplies of stone boulders to the Irrigation Department of the Government of West Bengal under a contract were sales in the course of inter-State trade or commerce as defined in section 3 (a) of the Central Sales Tax Act, 1956, and, in this view of the matter, it has been contended that the orders contained in annexures 11 and 12, as referred to above, under the Bengal Act are encroachments upon the Central Sales Tax Act, 1956, and are illegal.

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