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2002 Supreme(Cal) 719
High Court Of Calcutta
Tarun Chatterjee, S. P. Talukdar
KARTICK CHANDRA PARUI - Appellant
Versus
COMMERCIAL TAX OFFICER - Respondent
W. P. T. T. 25 Of 2000
Decided On : 12/05/2002
M.L.BHATTACHARJI, S.DUTTA, Seba Roy
Substantial compliance with the requirements of a statute may be sufficient to satisfy the law, even if there is a technical non-compliance.
Headnote:
WEST BENGAL SALES TAX ACT, 1994 - SECTION 46A - DEEMED ASSESSMENT - INTERPRETATION - REQUIREMENTS - SUBSTANTIAL COMPLIANCE - SCOPE AND POWER OF AUTHORITIES - PENALTY - TECHNICALITIES VS SUBSTANCE.
Fact of the Case:
The petitioner, a businessman, received a notice under Section 45(1) of the West Bengal Sales Tax Act, 1994, for assessment of tax for four quarters ending March 31, 1998. However, no further action was taken. Later, a fresh notice was issued fixing a hearing date for assessment. During this period, Section 46A was introduced, providing that returns filed along with challan of tax payments by June 30, 1999, would be deemed to have been assessed on December 31, 1999. The petitioner claimed that his returns were deemed to have been assessed on December 31, 1999, and challenged the authority of the Commercial Tax Officer to issue assessment notices. Despite this, an ex parte assessment was made, raising a demand of Rs. 6,14,386. The petitioner challenged this assessment before the West Bengal Taxation Tribunal, which rejected the petitioner's contention and upheld the assessment, finding that the petitioner had not complied with Section 46A due to a short payment of Rs. 20 on account of interest.
Finding of the Court:
The High Court held that the Tribunal erred in its interpretation of Section 46A and failed to appreciate the true scope and effect of the provision. The Court found that the petitioner had substantially complied with Section 46A by filing returns along with copies of receipted challans evidencing payment of tax and interest, and by submitting further returns after finalisation and reconciliation of books of accounts, wherein tax payable along with interest was also paid. The Court held that the short payment of Rs. 20 on account of interest did not render the returns ineligible for deemed assessment.
Issues: 1. Whether the petitioner had complied with the requirements of Section 46A of the West Bengal Sales Tax Act, 1994, for deemed assessment. 2. Whether the Commercial Tax Officer had the authority to initiate fresh assessment proceedings for returns already deemed to have been assessed.
Ratio Decidendi: 1. The Court interpreted Section 46A of the Act and held that the provision aims to provide deemed assessment to returns furnished by registered dealers in accordance with the provisions of Section 30(4) of the Act, for a specified period. The Court emphasized that the proviso to Section 46A(1) specifies the cases where the provisions of Section 46A(1) shall not apply, and that one of the conditions is if a registered dealer has not furnished a return together with a receipted challan showing payment of tax and interest, if any, for any return period falling within the eligible period. 2. The Court held that the petitioner had substantially complied with the requirements of Section 46A(1) by filing returns along with copies of receipted challans evidencing payment of tax and interest, and by submitting further returns after finalisation and reconciliation of books of accounts, wherein tax payable along with interest was also paid. The Court found that the short payment of Rs. 20 on account of interest did not render the returns ineligible for deemed assessment. 3. The Court also noted that Section 46A(5) empowers the Commissioner to direct an assessee to pay additional tax and penalty while making a fresh assessment under Section 45 of the Act. The Court held that even if Section 46A(5) was not applicable in the present case, the petitioner had substantially complied with Section 46A(1).
Final Decision: The Court set aside the impugned order of the Tribunal and the assessment made by the Commercial Tax Officer under Section 45 of the Act. The Court held that the returns submitted by the petitioner in terms of Section 46A of the Act must be found to be in accordance with the same.
( 1 ) THE writ petitioner Shri Kartick Chandra Parui has been carrying on business under the trade name of Parui Engineering Works. He received a notice in form 29 dated June 25, 1999 issued by the Commercial Tax Officer, Kadamtala Charge, Howrah thereby initiating proceedings to make assessment of the writ petitioner for four quarters ending March 31, 1998 under Section 45 (1) of the West Bengal Sales Tax Act, 1994 (in short, "the Act" ). However, it appears from the record that no further action was taken by respondent No. 1 in pursuance of the aforesaid notice. Subsequently on April 27, 2001 the Commercial Tax Officer concerned issued further notices fixing a date of hearing for assessment in respect of the above periods. In the intervening periods, the Legislature has introduced a new section, i. e. , 46a wherein it has been provided that returns filed along with challan of payments of tax by June 30, 1999 must be deemed to have been assessed on December 31, 1999. By operation of such newly introduced section, according to the writ petitioner, returns filed by the writ petitioner were deemed to have been assessed on December 31, 1999 notwithstanding the fact that notices of assessment under Section 45 (1) were issued by the concerned Commercial Tax Officer before December 31, 1999. In view of the subsequent introduction of Section 46a of the West Bengal Sales Tax Act, 1994 (hereinafter referred to as "the Act") the writ petitioner by a letter dated May 19, 2000 intimated the concerned Commercial Tax Officer of such legal position and also in the said letter he has challenged the jurisdiction and authority of the concerned Commercial Tax Officer to issue notices of assessment for the aforesaid periods. In spite of raising the question of jurisdiction of the concerned Commercial Tax Officer to proceed to assess the writ petitioner under Section 45 (1) of the Act and in spite of introduction Section 46a of the Act, the Commercial Tax Officer by an order dated June 19, 2000 made an ex parte assessment of the returns for the periods in question by raising a demand of Rs. 6,14,386. Challenging the said assessment the petitioner filed an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 before the West Bengal Taxation Tribunal (hereinafter referred to as "the Tribunal" ). Before the Tribunal, the writ petitioner challenged the ex parte order of assessment, inter alia, on the grounds that by virtue of the operation of Section 46a, the concerned Commercial Tax Officer had no authority or jurisdiction in proceeding with the assessment under Section 45 (1) of the Act. By the impugned order, the Tribunal rejected the contention of the writ petitioner made in the said application by holding that the assessment in respect of the returns furnished by the writ petitioner was correct and legal and since the writ petitioner had not complied with the provisions of Section 46a of the Act, there was no ground to hold that by virtue of Section 46a of the Act "deemed assessment" in respect of the periods mentioned above could be said to have been made for the periods in question. The Tribunal rejected the application of the writ petitioner mainly on the ground that although the writ petitioner along with the returns deposited taxes and interest and other documents but had failed to deposit a sum of Rs. 20 on account of interest and therefore it could not be said that the writ petitioner had complied with the provisions for "deemed assessment" under Section 46a of the Act. Feeling aggrieved by and dissatisfied with the order of the Tribunal the writ petitioner has come up to this Court under Article 226 of the Constitution.
( 2 ) APPEARING on behalf of the writ petitioner, Mr. Mihir Kumar Bhattacharya, learned counsel for the writ petitioner, submitted before us that the Tribunal had failed and neglected to appreciate the true scope and effect of Section 46a and the process of "deemed assessment" pr
