Hajarimall Nandlall and Others vs State of Assam and Others

D. Biswas, J.—By this common judgment, the writ petitions being Civil Rule No. 1531 of 1995. Civil Rule No. 1552 of 1995, Civil Rule No. 1533 of 1995 and Civil Rule No. 2009 of 1997, are proposed to be disposed of together since they raise a common question of law. The petitioners are the owners of different tea estates situated within the jurisdiction of this court. They have preferred these writ petitions praying for restraining the respondents from demanding tax clearance certificates from the drivers or the persons in charge of the trucks carrying the petitioners'' tea to different auction centres and for specific directions to respondents Nos. 5 to 8, i.e., the Inspector of Taxes, posted at various check-posts not to insist for tax clearance certificates.

The petitioners'' grievance in all the writ petitions and the prayers made are identical. They carry on the business of plantation, manufacture and sale of black tea. The petitioners are also liable to file returns of Income Tax and sale as per the provisions of the Assam Agricultural Income Tax Act, 1939, Central Sales Tax Act, 1956, and the Assam Sales Tax Act, 1947, as amended up to date and the rules framed thereunder. According to them, they have paid taxes for the assessment years 1991 to 1995. They are also clearing their Income Tax as assessed from time to time. The tea manufactured in their tea estates is despatched to various places in and outside Assam. The tax clearance certificates annexed with the writ petitions also show that there was no outstanding payable by them on account of taxes. The tea produced by them in the course of transit has to pass through various check posts (tax) set up u/s 44B of the 1947 Act and the Rules framed thereunder. During the course of the last 20 years, the tea produced by them was allowed to be transported through the check posts after filing of a declaration as per the provisions of the 1947 Act. No other document was ever insisted on by the officers at the check posts for allowing passage of tea. But since January, 1994, the officials at Khanapara, Srirampur, Biswanath Charali and Boralisan check posts were not permitting transportation of tea without the production of the sales tax and agricultural Income Tax clearance certificates. The Act of 1947 was substituted by the Assam General Sales Tax Act, 1993, with effect from July 1, 1993. Section 46(3) of the Act of 1993 provides that in order to prevent or check evasion of tax, the State Government may by notification direct the setting up of check posts or erection of barriers. Section 74 of the 1993 Act provides that all rules, notifications, registrations or other documents, forms and notice made or prescribed or issued under the repealed statute which were in force immediately before such repeal "may be taken or continued as if this Act (the 1993 Act) had not been passed". Neither under the Act of 1947 nor under the Act of 1993 has any provision been made requiring the tea estates to produce sales tax clearance certificates at the check posts set up under the said Act. The said Acts or the Rules framed thereunder also do not contain any provision for issue of sales tax clearance certificate. Rules 33 and 34 of the rules framed under the 1993 Act lay down the procedure for application and issuance of tax clearance certificates in a different context.

It is further submitted that although there is no provision under the Assam Agricultural Income Tax Act, 1939, the petitioners have been compelled to obtain agricultural Income Tax clearance certificate from respondent No. 3. That apart, the officials at check posts insisted for production of agricultural Income Tax clearance certificates for which the petitioners had to apply for such certificates before respondents Nos. 3 and 4. But respondents Nos. 3 and 4 issued such certificates for a limited period of 1 to 3 months only, resulting in harassment to the petitioners and dislocation in their business.

It is submitted further that the respondents have no power and authority under the said Act either to issue tax clearance certificates or detain trucks carrying tea to auction centres or to any other place. The illegal acts on the part of the respondents in detaining the vehicles carrying tea has become a cause of great loss to the manufacturers of tea in the State. According to the writ petitioners, their rights under Article 19(1)(g) of the Constitution have also been violated by the above illegal acts on the part of the respondents. The restriction imposed by means of Section 46 of the Act of 1993 (Assam General Sales Tax Act) constitutes unreasonable restriction on the petitioners'' freedom to carry on their occupation, trade or business. Hence, the petitioners filed these writ petitions seeking the reliefs indicated at the very outset of the judgment.

It would appear that the respondent-State that has not filed any affidavit-in-opposition in the writ petitions. However, I have heard Dr. A.K. Saraf assisted by Mr. S.K. Kejriwal and Mrs. S.K. Kejriwal for the petitioners, and Mr. H.N. Sarma, learned Senior Government Advocate, Assam, for the respondents.

Dr. Saraf at the very inception of his arguments pointed out that the similar question relating to tax clearance certificate under the Assam Agricultural Income Tax Act came up for consideration before this court in Civil Rule No. 2000 of 1994, and the learned single judge after consideration of the materials on record and various provisions of the concerned Act allowed the writ petition. The copy of the judgment placed before the court shows that the learned single judge made the following observation in the said judgment :

"6. Accordingly, it is crystal clear that the petitioner paid the tax for the year 1993-94 at the rate fixed by the Ordinance. The next question as to whether the petitioner is liable to obtain the agricultural Income Tax clearance certificate and the petitioner''s truck can be detained for not furnishing such certificate. I have perused the Act as well as the Ordinance. I asked Dr. Todi as to how and under what provision/statute the authority has exercised that power. From the Ordinance as well as from the Act, I do not find any provision for issuance of agricultural Income Tax clearance certificate. The authority may issue such certificate because of the benefit of the persons. But it cannot be deemed to be the necessity to have agricultural Income Tax clearance certificate for a person to carry the product from one place to another because that is not the requirement of law. If that is not the requirement of law, the facts of this case will show that for non-production of such certificate, the trucks belonging to the petitioner carrying tea manufactured cannot be detained."

Relying on the conclusion as above, the learned single judge issued the following directions :

"(i) Annexure M to the writ application, i.e., the impugned letter dated May 24, 1994, and the Bakijai Case No. TSK-1/AIT/92-95 vide annexure F shall stand quashed.

(ii) The authority shall not insist upon the agricultural Income Tax clearance certificate for moving tea manufactured by the petitioner-company from one place to another place.

(iii) The authority shall not detain the trucks carrying tea manufactured by the petitioner-company for non-production of agricultural Income Tax clearance certificate.

(iv) I find that the petitioner has paid tax for the year 1993-94 according to the rate fixed in the Ordinance.".

It would appear from the direction given at Clauses (ii) and (iii) that the respondents were directed not to insist upon agricultural Income Tax clearance certificates for movement of tea and further directed not to detain the trucks carrying tea manufactured by the writ petitioners.

A careful consideration of the provisions of the Assam Agricultural Income Tax Act, 1939, shows that there is no provision for issuance of agricultural Income Tax clearance certificate to a person for the purpose of carrying the products from one place to another. Therefore, I find no reason but to accept the decision rendered by the learned single judge in Civil Rule No. 2000 of 1994.

So far as the reliefs claimed under the Assam General Sales Tax Act, 1993, are concerned, it would be appropriate to quote the relevant provisions in order to determine as to whether the provisions of Section 46 and Rule 43(7)(j) of the Rules of 1993 in any manner impose restrictions on the movement of goods and whether the writ petitioners are required to produce sales tax clearance certificates before the officials at different check posts for movement of tea within and without the State of Assam.

Section 46(4) reads as follows :

"46. (4) At every check-post or barrier mentioned in Sub-section (3) or at any other place when so required by any officer empowered in this behalf, the driver or any other person-in-charge of any goods vehicle or boat shall stop the goods vehicle or boat, as the case may be, and keep stationery as long as may reasonably be necessary, and allow the officer-in-charge of the check post or barrier or the officer empowered as aforesaid to examine the contents in the goods vehicle or boat and inspect all documents relating to the goods carried which are in the possession of such driver or other person-in-charge for the purpose of ascertaining whether there has been any sale or purchase of the goods carried and in case there was sale or purchase of the goods carried, whether such sale or purchase is liable to tax under this Act and if so liable-

(a) Whether such tax has been paid ; or

(b) Whether the sale or purchase of the goods carried has, for the purpose of the payment of tax under this Act, been properly accounted for in the documents referred to in Sub-section (7)."

The aforesaid provision empowers the officer-in-charge of the check post or barrier or the officer empowered in this behalf not only to examine the contents of the vehicles, etc., but also authorises him to ascertain whether tax has been paid or to ensure whether the tax payable has been duly accounted for in the documents referred to in Sub-section (7). Sub-section (7) of Section 46 reads as follows :

"46. (7) The documents referred to in Sub-sections (4) and (5) are bills of sale, or delivery notes, or such other documents as may be prescribed."

In Sub-section (7) of Section 46 documents have been named for the purpose of implementation of the provisions of Sub-sections (4) and (5). Although the provisions in Sub-sections (4) and (5) require the officer-in-charge to satisfy him as to whether sales tax payable under the Act has been paid or not, such satisfaction shall be based on the documents referred to in Sub-section (7). Dr. Saraf, learned senior counsel for the petitioners, argued that the construction of the provisions of Section 46(4)(a) and Section 46(4)(b) and that of Sub-section (7) show that the documents have been mentioned in alternative and, therefore, any of the documents mentioned in Sub-section (7) or documents that may be prescribed in the rules will be sufficient compliance for the purpose of satisfaction of the officer-in-charge under Sub-sections (4) and (5). Dr. Saraf further elaborated that the word "or" used between Clauses (a) and (b) of Section 46(4) shows that once any of the documents mentioned in Clause (b) is produced, the requirement of Section 46(4) is completed. In support of this contention, Dr. Saraf referred to a decision of the Supreme Court in Surat Kumar v. State of Haryana, AIR 1996 SC 1047

In the aforesaid case, the Supreme Court while dealing with the construction of section 37(2) of the Haryana General Sales Tax Act came to the conclusion that the language of the section referred to the documents to be relied upon is in alternatives and, as such, production of any of the documents mentioned in the Act would be sufficient enough on the part of the carrier to discharge his obligations under the said section. Section 37(2) of the Haryana General Sales Tax Act runs as "a goods carrier record, trip sheet or log book.". Similarly, in the Assam Act also, Sub-section (7) provides for "bills of sale, or delivery notes, or such other documents as may be prescribed". Therefore, the documents specifically mentioned in Sub-section (7) and the documents which are to be prescribed in the rules are to be construed in alternatives. The officer-in-charge of the check posts or barriers, therefore, cannot insist for more than one of such documents. Dr. Saraf also argued that the Rules framed to give effect to the provisions of Section 46(4), (5) and (7) are in violation of the substantive provisions of the Act and, as such, it is not sustainable. Rule 43(7)(j) reads as follows :

"43. (7)(j) For the purpose of Section 46, the following shall be the documents as far as they are applicable to the case :

(i) Bill of sale (Form XXIII) ;

(ii) Delivery note (Form XXIV) ;

(iii) Consignment notes and invoices ;

(iv) Tax clearance certificates from the concerned Assessing Officer (Form XIII) ;

(v) Transit pass (Form XXV) whenever applicable ;

(vi) Any other document as may be notified by the Commissioner ;

(vii) Declaration to be submitted by the carrier or bailee on inspection by the officer (Form XXVI).".

It appears from the provisions in the rule quoted -above that for the purpose of Section 46 the documents have been prescribed in conjunctives. Perhaps for this reason, the officer-in-charge of the check posts or barriers are insisting for more than one of the documents. In my opinion, the rule as above is contrary to the provisions of Sub-section (7) of Section 46. When Sub-section (7) provides for documents in the alternative, the rule cannot prescribe anything contrary to that. Therefore, the documents mentioned in the aforesaid rule have to be read in alternatives only and the officers of the different check gates or barriers cannot be allowed to insist on more than one of the documents mentioned in Sub-rule (7) above.

An objection has been raised to the provision of Clause (iv) of Sub-rule (7)(j) which provides for tax clearance certificate from the concerned Assessing Officer (Form XIII). According to Dr. Saraf, there was no provision for issuance of certificate of lax clearance except that mentioned in Rules 33 and 34 prior to the amendment made in 1996. According to him, Rule 33 as it existed was applicable in a different context and, as such, the officer-in-charge of check gates never insisted for sales tax clearance certificate for the purpose of implementation of Section 46(4) and (5).

Sub-rule (2) of Rule 33 was inserted by Notification No. FTX. 60/93/130, dated June 29, 1996, providing for production of sales tax clearance certificate by the owner or other person in-charge of the goods vehicle or boat. The section reads as follows :

"(2) A certificate showing tax payment obtained by a contractor or dealer from the Assessing Officer, shall be carried and produced by the owner or other person in charge of the goods vehicle or boat, while carrying goods across the check post or barrier, as provided in Sub-rule (5) of Rule 43."

The provision as inserted by Sub-rule (2) above shows that the certificate of payment of tax has to be produced while carrying goods across the check posts or barriers as provided in Sub-rule (5) of Rule 43. This provision inserted in 1996 is also blatantly opposed to the provision of Sub-section (7) of Section 46. Therefore, the provision in Sub-rule (2) of Rule 33 and in Sub-rule (7)(j) of Rule 43 are redundant for the purpose of Section 46(4) and (5). The provision being contrary to what has been contemplated in the substantive provisions of Section 46 cannot be insisted upon.

Although the provision in Section 46(4) clearly indicates the intention of the Legislature to authorise the officer-in-charge of a check post or barrier to inspect the documents for the purpose of his satisfaction whether tax has been paid or not, yet the provision is inadequate to give effect to the aforesaid intention. In my considered opinion unless Sub-section (7) of Section 46 is suitably amended and the rules are framed thereunder, neither the Government nor any of his officer is entitled to insist for the sales tax clearance certificates. Simultaneously, because of the language of Sub-section (7), it would not be available to the State Government or its officers to insist for more than one of the documents other than the sales tax clearance certificate. It is because when there is a conflict between the provisions of the Act and the Rules framed thereunder, the provisions of the Act will prevail.

Section 72 of the Act empowers the State Government to frame rules for the purpose of implementation of the different provisions of the Act. Section 72 does not provide for sub-delegation of the powers of the State Government to any authority, but Rule 43(7)(j)(vi) authorises the Commissioner to prescribe any other document. This provision in my opinion is also beyond the scope of Section 72. Unless the Legislature provides for sub-delegation of the rule-making power by the State to any other authority, any provision in that direction is ultra vires the Act. This also needs attention of the concerned authority for suitable amendment of the Act if they consider it expedient in public interest.

The rules, notifications, registrations or other documents, forms and notice made or prescribed or issued under the repealed Act notwithstanding such repeal were continued even after the enforcement of the Act of 1993. These rules also do not provide for production of sales tax clearance certificate before any check post or barrier. That being the position, and for reasons quoted above, the petitioners have a cause to vindicate.

In the result, the writ petitions are allowed. The respondents are directed not to insist upon agricultural Income Tax clearance certificates and sales tax clearance certificates at the check posts or barriers until and unless the law is suitably amended for the purpose of giving effect to the intention underlying the provisions of Section 46(4). They are further restrained from insisting upon more than one of the documents mentioned in Sub-clause (j) of Sub-rule (7) of Rule 43 other than general sales tax clearance certificate.

Before parting with the record it may be mentioned that the provisions of Section 46(4) as it is authorising officer-in-charge of a check post or barrier to examine the documents in order to ascertain whether tax payable under the Act of 1993 has been paid or not cannot be said to be unreasonable. The provision has been incorporated to ensure that the petitioners have discharged their lawful duty, i.e., payment of tax payable under the Act. As such, in my opinion, the section does not offend the provisions of Article 19(1)(g) of the Constitution.

No order as to costs.