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D.P. Wadhwa, S.K. Chattopadhyaya, JJ.
CENTRAL COAL FIELDS LTD.
Versus
STATE OF BIHAR AND OTHERS
C.W.J.C. No. 4061 of 1996(R) with C.W.J.C. Nos. 4062, 4063, 4064 and 4065 of 1996(R)
Decided On: Decided On : 07-01-1997
BIHAR FINANCE ACT, 1981 - SECTION 30(4)(B) - RULE 15(6) OF THE BIHAR SALES TAX RULES, 1983 - VALIDITY OF FORM X - TRANSFER OF COAL FROM ONE COLLIERY TO ANOTHER - WHETHER SALE - ASSESSMENT OF SALES TAX - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
The petitioners challenged the validity of Form X prescribed under Rule 15(6) of the Bihar Sales Tax Rules, 1983, arguing that it was ultra vires and contrary to Section 30(4)(b) of the Bihar Finance Act, 1981. They also contested the assessment order imposing sales tax on the transfer of coal from one colliery to another, claiming it did not constitute a sale.
Finding of the Court:
The court held that Form X existed prior to the enactment of the Act and the Rules and was saved from any challenge to its validity by Section 59(2) of the Act. It also found that the impugned assessment order was contradictory and did not provide a clear finding on whether there was a sale.
Issues: 1. Whether Form X prescribed under Rule 15(6) of the Bihar Sales Tax Rules, 1983, was valid. 2. Whether the transfer of coal from one colliery to another by the petitioner constituted a sale subject to sales tax.
Ratio Decidendi: 1. Section 59(2) of the Bihar Finance Act, 1981, saved Form X from any challenge to its validity as it deemed all rules, orders, and other things done under the repealed Bihar Sales Tax Act, 1959, to continue in force unless modified, superseded, or canceled under the new Act. 2. The impugned assessment order was contradictory and did not provide a clear finding on whether there was a sale. The court found it necessary to remand the matter back to the assessing authority for a fresh consideration.
Final Decision: The court allowed the writ applications, set aside the impugned assessment orders, and remanded the matter back to the assessing authority for a fresh consideration after providing the petitioner with an opportunity to present their case.
1. In this batch of writ applications, there is challenge to the validity of sub-rule (6) of rule 15 of the Bihar Sales Tax Rules, 1983 (for short "the Rules") so far as it requires that the challan mentioned in clause (b) of sub-section (4) of section 30 of the Bihar Finance Act, 1981 (for short "the Act") shall be in form X. It is submitted that form X is ultra vires and contrary to section 30(4)(b) of the Act. There is also challenge to the assessment order made under section 17 of the Act requiring the petitioner to pay sales tax at the rate of 4 per cent on the value of the coal transferred from one colliery of the petitioner to another colliery belonging to the petitioner on the ground that it constituted sale within the meaning of "sale" under the Act. The impugned order is dated November 19, 1996 and has been passed by the Assistant Commissioner of Commercial Taxes (respondent No. 5).
2. Under sub-section (1) of section 30 of the Act, a registered dealer to maintain accounts in respect of all goods produced, raised manufactured, possessed, bought, sold or delivered or transferred by him. Sub-section (4) of section 30 of the Act, in its relevant part, is as under :
"30(4). Every dealer or a person required to keep accounts by sub-section (1) shall -
(a).............
(b) issue a challan in respect of all transfer of goods from his place business otherwise than as a result of sale in such form as the Commissioner may by notification lay down."
The State Government in exercise of its powers conferred under section of the Act framed Rules in supersession of earlier Rules. Sub-rule (6) of rule is as under :
"The challan mentioned in clause (b) of sub-section (4) of section 30 shall be prepared in duplicate, be serially machine-numbered, be kept in a book form and shall be duly signed and dated by the dealer or his manager declared under section 15 or a person in the whole time employment of the dealer; one copy of it shall be issued to the person accompanying the goods for production on demand before any authority or Inspector appointed under section 9, and the other copy shall be retained by the dealer in a bound and serially machine numbered volume. The challan shall be in form X."
It is not necessary to set out form X as the contention of the petitioner has been that form X could not have been prescribed by the State Government under the Rules as that power under sub-section (4) of section 30 of the Act has been conferred upon the Commissioner himself. It is, therefore, contended that the absence of form X prescribed as such is immaterial and could not be said that the requirement of sub-section (4) of section 30 of the Act has not been met. However, it could not be disputed that this form X existed prior to the coming into force of the Act and the Rules.
3. Mrs. Choudhary, learned counsel for the State, has referred to sub-section (2) of section 59 of the Act which repealed the Bihar Sales Tax Act, 1959, and also provided certain saving. This sub-section (2) of section 59 of the Act reads as under :
"59(2). All rules, orders and appointment made, notifications published, certificates granted, powers conferred and other things done under the said Act and in force on the commencement of this part shall, so far as they are not inconsistent with or until they are not modified, superseded or cancelled under this part be deemed to have been respectively made, published, granted, conferred or done under this part."
Then Mr. Poddar, learned counsel for the petitioner, contended that even in the earlier Act and the Rules, form X had not been prescribed by the Commissioner but that is nowhere pleaded. In our opinion sub-section (2) of section 59 of the Act would save form X from any challenge to its validity. In this view of the matter, Mr. Poddar also did not give any serious challenge to the validity of form X.
4. Normally the order passed by the Assistant Commissioner of Commercial Taxes should have been appealed agains
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