At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE DILIP KUMAR SETH & THE HONOURABLE MR. JUSTICE RAJENDRA NATH SINHA
For the Appearing Parties: Anami Sikdar, Seba Roy, Advocates.
D.K. SETH, J.
(1) IN his usual fairness the learned Counsel for the appellant points out that the Scheme under which the relief is asked for has nothing to do with the Sales Tax Authorities. The Scheme is not promulgated under any of the statute, which is covered under section 8 of the West Bengal Taxation tribunal Act, 1987. The Sales Tax Authorities are the authority only for certifying the correctness of the particulars furnished by the petitioners. The application is to be made before the authorities of the State Government, being the respondent Nos. 2 and 4 who are part of the Finance Department of the government of West Bengal. They are not discharging any function under the sales Tax Act while dealing with the Scheme. Therefore, the decision appealed against refusing the relief on the ground of maintainability of the writ petition in view of section 8 of the West Bengal Taxation Tribunal Act, 1987 seems to be not in accordance with law. The learned Counsel had drawn our attention to another order passed by the same learned Single Judge in a different matter taking a different view. It appears that proper attention of the learned Single judge was not drawn on 8th December, 2003 when the said order was passed. The learned Counsel for the appellant has also drawn our attention to a decision in Niva Das vs. Commissioner of Commercial Taxes and Ors. , 1998 (31) STA 101 wherein this very question has been decided by the Tribunal and has been discussed elaborately.
(2) MS. Seba Roy, in her usual fairness, points out that the Scheme had nothing to do with the Sales Tax Act or any statute coming within the purview of section 8 of the 1987 Act. The authorities are also different. The Sales Tax authorities are only the certifying authority with regard to correctness of the particulars furnished under the Scheme.
(3) WE have examined the Scheme, it was not promulgated under any of the statute coming within the purview of section 8 of the 1987 Act. Except certification, the authority under the Sales Tax Act had no other role to play. The application is to be made before the State Government, which will obtain the certificate from the Commissioner of Commercial Taxes verifying the correctness of the particulars furnished in the application. Once a dealer is found entitled by the State Government, on being so satisfied under paragraph 5 of the Scheme, the payment is to be made to the dealer by a non-negotiable account payee cheque drawn in favour of the dealer. The only connection of the taxation authority is that if the dealer opts for adjustment of any tax payable by him in that event the cheque may be issued by the State Government in favour of the Commissioner of Commercial Taxes, West Bengal. Therefore, the scheme, as it appears, has no connection with the taxation statute or any other statute, coming within the purview under section 8 of the said Act. Therefore, we are in agreement with the decision of Niva Das (supra) by the West Bengal taxation Tribunal and the subsequent decision of the learned Single Judge in wp No. 220 of 2004, Laxmi Electronics and Anr. vs. State of West Bengal and Ors. , disposed of on 11th February, 2004.
(4) IN the result this appeal succeeds. The order dated 8th December, 2003 is set aside. The appeal is allowed. The respondent No. 4 shall consider the case of the petitioner
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and decide the same in accordance with law and according to his own wisdom and discretion without being influenced by any observation made in this order preferably within a period of four months from the date of communication of this order. (5) URGENT xerox certified copy of this order, if applied for, be given to the parties on priority basis. Appeal allowed.