JUDGMENT
P.R. Balasubramanian, Technical Member
1. This writ application under Article 226 of the Constitution of India, originally filed in the Calcutta High Court and numbered as C.O. 12839(W) of 1986 has since been transferred to this Tribunal under Section 15 of the West Bengal Taxation Tribunal Act, 1987.
2. Messrs. National Jute Manufactures Corporation Ltd. (“NJMC”, for short), the applicant in the present case, is a wholly owned Government company, having its office at Chartered Bank Building, 4, Netaji Subhas Road, Calcutta. Pursuant to the enactment of the Jute Companies (Nationalisation) Act, 1980 (“the 1980 Act”, for short) on and from December 21, 1980, the jute mill of Messrs. Union Jute Co. Ltd., having its jute mill/factory at 12, Convent Lane, Calcutta-15, was first vested in the Central Government and then transferred to the applicant. NJMC at its Union Jute Mill is engaged, inter alia, in the manufacture/production of hessian/carpet backing, yarn, gunny bags and pack sheets and is also engaged in exporting and selling of such products. Since Messrs. Union Jute Co. Ltd., whose jute mill was nationalised and vested in NJMC was a registered dealer under the West Bengal Sales Tax Act, 1954 (“the 54 Act”, for short) holding registration certificate bearing No. LR/270/54A, it is stated by the applicant that it did not initially deem it necessary to apply for fresh registration under the 54 Act on the impression that the registration certificate number held by Union Jute Co. Ltd., would continue to be held by it in view of the provisions of Section 4(5) of the 1980 Act and that the registration certificate of the erstwhile Union Jute Co. Ltd., would be endorsed in its favour. However, on subsequent advice of its tax consultant, application for registration under the 54 Act was filed on July 22, 1981, before the respondent No. 2, namely, the Commercial Tax Officer, Lyons Range Charge, who granted new registration certificate bearing No. LR/431/54A with effect from October 26, 1981 in its favour for its Union Jute Mill. On March 26, 1985, the respondent No. 1, namely, the Commercial Tax Officer, Central Section (Assessment Wing), assessed the taxable turnover of the applicant as a dealer having registration certificate bearing No. LR/431/54A for the period from December 22, 1980 to March 31, 1981 and determined the tax liability amounting to Rs. 42,721 under Section 9(3) of the 54 Act, which was followed by a demand notice in form VII for payment of the tax as assessed. Aggrieved by the said assessment, it has been contended that, since the applicant has been assessed as a dealer having registration certificate bearing No. LR/431/54A for the period from December 22, 1980 to March 31, 1981, the applicant is also entitled to enjoy the benefit of purchases at concessional rate of tax as a registered dealer of the goods required for its manufacture of jute goods on and from December 22, 1980 and that it is entitled to enjoy the benefit of registration under the 54 Act with effect from the same date. It has been alleged that by not extending the benefit of registration from December 22, 1980 the respondents have acted arbitrarily and erred in law. By such arbitrary refusal to grant the benefit which is available to all registered dealers, it has been alleged that there has been violation of Articles 14 and 19(1)(g) of the Constitution. Because of such refusal, the applicant has been unable to issue declaration forms in respect of its purchase of goods made during that period and was not also in a position to collect “C” form of declarations in respect of its sales to other registered dealers. The applicant will, therefore, have to pay taxes on such purchases and sales at full rate, resulting in double jeopardy. It has been further stated that pursuant to a decision of the Calcutta High Court in Civil Rule No. 7846(W) of 1981 as National Jute Manufacturers Corporation Ltd. v. Commercial Tax Officer [1982] 49 STC 271 (Cal)., the applicant was granted a registration certificate bearing No. LR/6128A under the Bengal Finance (Sales Tax) Act, 1941 (“the 41 Act”, for short), and bearing No. LR/430/54A under the 54 Act for another of its units, viz., Alexandra Jute Mill. It was held in that case that NJMC unit–Alexandra is not a transferee of Alexandra Jute Mills Ltd., either under Section 17 of the 41 Act or Section 15 of the 54 Act. It has been contended that on the basis of the principles laid down in that case, the applicant should be treated as a registered dealer under the 54 Act on and from December 22, 1980, the date of commencement of liability and granted the benefit of registration on and from December 22, 1980 for its Union Jute Mill as well inasmuch as the cases of Alexandra and Union Jute Mills are similar, neither having any separate legal entity, though functioning separately for convenience of business. The applicant has, therefore, prayed for a writ in the nature of mandamus to command the respondents to extend the benefit of registration for Union Jute Mill with effect from December 22, 1980, that is, from the date of commencement of liability following nationalisation under the 1980 Act.
3. In their affidavit-in-opposition the respondents have alleged that the applicant was fully aware of the fact that, pursuant to the nationalisation of the Union Jute Company, it could not be held to be a transferee either under Section 17 of the 41 Act or under Section 15 of the 54 Act in view of the provisions of the 1980 Act. The applicant had applied for registration under the 41 Act in respect of its Alexandra unit before the respondent No. 2 who had by an order dated March 18, 1981, rejected the same as he was of the opinion that the applicant is covered by Section 17 of the 41 Act. Following the same, the applicant had moved the Calcutta High Court under Article 226 which was pleased to quash the order dated March 18, 1981 of the Commercial Tax Officer and also directed him to dispose of its application for registration in accordance with law. This judgment was delivered on August 11, 1981 National Jute Manufacturers Corporation Ltd. v. Commercial Tax Officer [1982] 49 STC 271 (Cal) in Civil Rule No. 7846(W) of 1981, holding that in view of the provisions of the 1980 Act, the applicant cannot at all be treated as transferee under Section 17 of the 41 Act. Hence, the contention that the management was under the impression that the registration certificates of the erstwhile Union Jute Company would be endorsed in its favour is totally incorrect and baseless. Moreover, the respondent No. 2 had rightly granted the certificate of registration with effect from October 26, 1981 since there is no provision in the 54 Act for granting any retrospective effect for registration. As regards the assessment for the period from December 22, 1980 to March 31, 1981, it was made treating the applicant as an unregistered dealer for the pre-registration period from December 22, 1980 to March 31, 1981 under Section 9(3) of the 54 Act and that, in fact, the words “assessment relates to pre-registration period” have been used in the order of assessment. Mere mention of the registration certificate number of the applicant in the order of assessment will not and cannot lead to the conclusion that the applicant was assessed as a registered dealer under the 54 Act for that period.
4. Further, it has been contended that a combined reading of Section 5 of the 54 Act and Rules 5, 6, 7 and 8 of the West Bengal Sales Tax Rules, 1954 (“the 54 Rules”, for short), would go to show that registration cannot at all be granted to a dealer with retrospective effect. While denying that the benefit of retrospective effect of registration has been granted to any other registered dealer under the 54 Act, it has also been submitted that retrospective effect was given under the 54 Act to the Alexandra unit of the applicant, only due to the order of the Calcutta High Court and the fact that the application of Alexandra Unit of the applicant under the 54 Act had been wrongly rejected by the respondent No. 2. However, in the instant case, though the petitioner had effected first sale of notified commodity on December 22, 1980, the application for registration under the 54 Act was submitted only on July 22, 1981 after considerable delay and hence the respondents could not be held at fault for non-accrual of any tax benefits or concessions which would otherwise have been available had the applicant filed the application for registration on time, that is, within a very short period after December 22, 1980. The ratio of the decision of the Calcutta High Court in Civil Rule No. 7846(W) of 1981 reported at [1982] 49 STC 271 (National Jute Manufacturers Corporation Ltd. v. Commercial Tax Officer) cannot also apply to the facts and circumstances of the present case since the application of Union Jute was not rejected ‘by the respondent No. 2 as in the case of Alexandra but allowed on October 26, 1981 soon after the application was filed on July 22, 1981. Only the provisions of the 54 Act and the 54 Rules being material and pertinent to the grant of certificate of registration, registration takes effect according to the same from the date of order granting registration, and the prayer of the applicant cannot, therefore, be acceded to.
5. Arguing the case for the applicant, Mr. Somen Bose, learned senior advocate, contended that under Section 4(5) of the 1980 Act, all licences or other instruments granted to a jute company in relation to its nationalised undertaking, which has vested in the Central Government under Section 3 of the 1980 Act and subsequently vested in NJMC under Section 6 thereof shall continue to be in force in its name from the date of nationalisation and that NJMC shall be deemed to be substituted in such licence or other instrument as if it had been granted to such Corporation. Section 24 of the 1980 Act provides that its provisions shall have effect notwithstanding anything inconsistent therewith contained in any other law in force for the time being. Under the 54 Act, liability to pay tax arises from the date of first sale and Section 16 of the Act provides for prosecution if the dealer is not registered under the Act. Hence it is clear that the object of Section 4(5) of the 1980 Act was to enable continuous operation of the business of the company and not to expose the NJMC or its officers to the possibility of such criminal prosecution. Mr. Bose also argued that for a harmonious construction of the 1980 Act with its object and policy, the expression “licensed or other instrument” referred to in Section 4(5) of the 1980 Act should also be deemed to cover a certificate of registration under the 54 Act held by the Union Jute Company. NJMC who are accordingly liable to pay sales tax from the commencement of the 1980 Act and accept such liability would be doing so as a registered dealer. Only because in that case the registration certificate held by the Union Jute Company would continue in the name of NJMC as well by virtue of the Nationalisation Act and it would mean carrying on business and industry by NJMC with the same registration number as held by the Union Jute Company, the NJMC had applied for registration in July, 1981 to avoid such an anomaly. Even so, Mr. Somen Bose argued that NJMC was not a transferee and hence not covered by Section 15 of the 54 Act which is in pan materia with Section 17 of the 41 Act in view of the decision of the Calcutta High Court in the case of its Alexandra Unit and reported in [1982] 49 STC 271 (National Jute Manufacturers Corporation Ltd. v. Commercial Tax Officer). Mr. Bose, therefore, submitted that NJMC should be deemed to be in operation with effect from December 22, 1980, although registration is granted with effect from October, 1981, having regard to Section 4(5) of the 1980 Act.
6. Mr. T.N. De, the learned State Representative, argued that a registration certificate under the 54 Act cannot be equated with a licence contemplated in Section 4(5) of the 1980 Act, this being altogether different. Hence, Section 4(5) of the 1980 Act can have no manner of application in the present case. Even assuming that a registration certificate would come within the meaning of the expression “any licence or other instrument” referred to in Section 4(5) of the 1980 Act, and in spite of the non obstante clause in Section 24 of the 1980 Act, there cannot be any question of any repugnancy between the provisions of the 1980 Act which is a Central Act and the provisions of the 54 Act, which is a State Act, in view of the decision of the Supreme Court in the case of Hoechst Pharmaceuticals Ltd. v. State of Bihar, reported in [1984] 55 STC 1. In that case, the issue before the Supreme Court was whether Sub-section (1) of Section 5 of the Bihar Finance Act, 1981, which provided for the levy of surcharge on every dealer whose gross turnover during a year exceeded Rs. 5 lakhs at such rate not exceeding 10 per cent of the total amount of tax as may be fixed by the State Government by notification in addition to the tax payable by him and Sub-section (3) which prohibited such dealer from collecting the amount of surcharge from the purchasers were ultra vires the provisions of the Constitution in view of the opening words of Article 246(3) of the Constitution “Subject to Clauses (1) and (2)” and the non obstante clause in Article 246(1) to say “Notwithstanding anything contained in Clauses (2) and (3)”. The further point for consideration was whether the impugned provisions of the Bihar Act had to yield to Sections 3(1) and 6 of the Essential Commodities Act, 1955, in so far as these provisions were repugnant to Section 3(1) and Section 6 of the Essential Commodities Act which provided that any order made under Section 3 of the Essential Commodities Act shall have effect notwithstanding anything inconsistent therewith contained in any other statute. The language of Section 24 of the 1980 Act is similar to the provision of Section 6 of the Essential Commodities Act referred to in that case. The Supreme Court had upheld the validity of Sub-section (1) and Sub-section (3) of Section 5 of the Bihar Finance Act, 1981 and held as follows :
“It is now settled that the words ‘with respect to’ qualify both the clauses in Article 254(1), viz., a law made by Parliament which Parliament is competent to enact as well as any provision of an existing law. The underlying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field, i.e., with respect to one of the matters enumerated in the Concurrent List. Hence, Article 254(1) cannot apply unless both the Union and the State laws relate to a subject specified in the Concurrent List, and they occupy the same field.”
Further, the Supreme Court had held in that case that entry 54 of List II was a tax entry and, therefore, there can be no question of repugnancy between Section 5(3) of the Bihar Act which was a law made by the State Legislature for the imposition of tax on sale or purchase of goods relatable to entry 54 of List II and paragraph 21 of the Control Order issued by the Central Government under Section 3(1) of the Essential Commodities Act which was a law made by. Parliament relatable to entry 33 of List III. The question of repugnancy could only arise in connection with the subjects enumerated in the Concurrent List as regards which both the Union and the State Legislatures had concurrent powers so that the question of conflict between laws made by both Legislatures relating to the same subject might arise. Mr. T.N. De, the learned State Representative, therefore, contended that in the instant case also, the provisions of the 1980 Act cannot override the provisions of the 54 Act, enacted by the State Legislature under entry 54 of List II nor can there by any question of repugnancy or inconsistency between the two. The provisions in the 54 Act relating to registration of dealers will, therefore, apply to the instant case and not Sections 4(5) and 24 of the 1980 Act.
7. On the question of discrimination as between Alexandra Unit of NJMC and Union Jute, Mr. T.N. De submitted that in the case of Alexandra, the application for registration was made on January 16, 1981 which was rejected by an order of the Commercial Tax Officer, Lyons Range Charge, dated March 18, 1981, on the ground that the applicant, Alexandra Unit, would be treated as transferee under Section 17 of the 41 Act, which was challenged in the Calcutta High Court. By a judgment dated August 11, 1981, reported in [1982] 49 STC 271 (National Jute Manufacturers Corporation Ltd. v. Commercial Tax Officer) it was held that Section 17 of the 41 Act and Section 15 of the 54 Act had no manner of application to that case and, as such, the Commercial Tax Officer was manifestly in error in directing the petitioner to apply as a transferee under Section 17 of the 41 Act or Section 15 of the 54 Act. In such view of the matter, the respondents were directed to dispose of the application of Alexandra in accordance with law and in the light of the observations made therein. It was in that context that retrospective effect had been given to the registration certificate of Alexandra Unit under the 54 Act from January 16, 1981, namely, the date of application. Mr. De, submitted that in the instant case, however, the applicants were aware that Section 15 of the 54 Act would not be applicable to their case, as obvious from the fact that NJMC had already filed the writ application in the Calcutta High Court against the order of the Commercial Tax Officer directing Alexandra to be treated as a transferee under Section 17 of the 41 Act. Even so, the application in respect of Union Jute had been made only on July 22, 1981. Mr. De further submitted that NJMC had made inordinate delay in furnishing the application for registration and if the registration certificate had been granted with effect from October 26, 1981 because of which the Union Jute was deprived of the benefit of declaration forms, etc., for the period between December 22, 1980, the date of first sale and commencement of liability to tax and October 26, 1981, the date on which registration certificate came into effect, it was entirely due to its own fault for which the respondents could not be blamed. Mr. De finally submitted that though there is no provision for grant of registration certificate (“RC” for short) with retrospective effect under the 54 Act, he would have no objection to give effect to the RC from the date of application, namely, July 22, 1981, if the Tribunal should deem it appropriate on ground of equity.
8. Having considered the rival contentions, we are unable to agree with the point taken by Mr. Somen Bose on behalf of the applicant that in view of Sections 4(5) and 24 of the 1980 Act, NJMC should be entitled to the benefit of registration for its Union Jute Mill with effect from December 22, 1980, regardless of the provisions of the 54 Act in view of the judgment of the Supreme Court in the case of Hoechst Pharmaceuticals Ltd. v. State of Bihar, reported in [1984] 55 STC 1, referred to by Mr. T.N. De, the learned State Representative. It is the admitted position before us that NJMC is not liable to be treated as a transferee under Section 15 of the 54 Act. There is also no dispute that retrospective effect to registration cannot be given under the provisions of the 54 Act as existing. It is also on record that in the case of Alexandra, the application was made on January 16, 1981, for fresh registration. We are, therefore, unable to agree with Mr. Somen Bose that there has been a discrimination in the case of Union Jute and a violation of Article 14 of the Constitution. As rightly pointed out by Mr. T.N. De, whereas in the case of Alexandra Unit, the application was filed on January 16, 1981 and registration was also granted with effect from the same date in pursuance of the order of the Calcutta High Court, in the case of Union Jute, the application was filed belatedly only on July 22, 1981, though applicant was aware of the provisions for registration under the 54 Act. Having regard to the provisions for registration under the 54 Act, we are accordingly of the opinion that the respondent No. 2 had not erred in law by granting the RC with effect from October 26, 1981, on which date the order was passed. Since, however, the application had been made on July 22, 1981 and NJMC is engaged in reviving a sick industry for the larger public benefit, we feel that the interests of equity and justice would be served if RC is granted from July 22, 1981, that is, the date of application, as in the case of Alexandra.
9. The application is disposed of accordingly with the direction to the respondents to give effect to the registration of the applicant under the 54 Act with effect from the date of application, that is, July 22, 1981. There will be no order as to costs.
L.N. Ray, Judicial Member.
10. I agree.