V.J. SURAIYA Vs. ADDITIONAL COMMISSIONER, COMMERCIAL TAXES AND ORS.

JUDGEMENT

(1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 praying for a declaration that the Ordinance issued amending the provisions of the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 (hereinafter referred to as "the Act, 1999") is unconstitutional and ultra vires and also for setting aside the impugned order dated August 4, 2000 passed by respondent No. 1.

(2.) THE additional tax of the petitioner for the period 4 quarters ending ASO Vado 30th, 2043 G.D. was assessed to Rs. 10,436.60 and additional interest Rs. 23,898.44. An appeal against the order of assessment was preferred on May 5, 1997 before the Assistant Commissioner, the respondent No. 2, disputing the assessment of tax though to avoid payment of further interest full amount of tax and interest was deposited. During pendency of the appeal, the Act, 1999 came into force on and from the 1st day of July, 1999. The conditions for settlement under the Act, 1999 are that the arrear tax may ' be settled on payment of 33 per cent of the tax in dispute and/or interest in dispute or 5 per cent tax in dispute whichever is lower. The petitioner, therefore, submitted an application on August 4, 1999 praying for settlement of the dispute raised in the appeal regarding assessed tax of Rs. 10,436.60 and interest levied thereon accepting 33 per cent of the tax due and interest as payable and claimed refund of the balance amount. The said application filed on August 4, 1999 was kept pending till it was finally disposed of on January 20, 2000.

(3.) THE designated authority in terms of the amended provision of the Act 1999, accordingly passed an order on August 4, 2000 refusing the prayer for refund of the excess amount paid by the petitioner. The order of refusal of the designated authority is highly illegal inasmuch as, an applicant who actually did not pay any amount of the disputed tax before filing an application under Section 5 shall have to pay only (33 per cent plus 5 per cent, i.e., 33 per cent of such disputed tax and interest at 5 per cent of disputed tax to settle the dispute whereas, another applicant who had paid in full the disputed amount of tax with interest, just like this petitioner, would not be allowed to get refund of the amount paid in excess to that of 38 per cent under the amended provisions of the Act. The Ordinance, 1999 promulgated with retrospective effect is, therefore, unconstitutional, ultra vires and violative of the principle of natural justice.