Calcutta High Court (Appellete Side)
Mageba Bridge Products Private ... vs Deputy Commissioner Commercial ... on 7 June, 2022
Item No.2.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 07.06.2022
DELIVERED ON:07.06.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
MAT 394 of 2022
With
I.A. No.CAN 1 of 2022
Mageba Bridge Products Private Limited.
VERSUS
Deputy Commissioner Commercial Taxes, Central Audit Unit & Ors.
Appearance:-
Mr. Sandip Choraria,
Mr. Sukalpa Seal .....for the appellant.
Mr. Soumitra Mukherjee,
Mr. Debasish Ghosh .. for the respondents.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra-Court appeal filed by the writ petitioner is
directed against the order dated 28 th February, 2022 in W.P.A.
No.19554 of 2019. In the said writ petition, the appellant had
challenged the assessment order dated 20th December, 2011, which
was upheld by the appellate authority by order dated 26 th
September, 2013 as well as by the revisional authority dated by
order dated 17th July, 2019. The learned writ Court dismissed the
writ petition on the ground that it is not inclined to interfere
with the concurrent findings of the three authorities below.
2. Mr. Sandip Choraria, learned advocate appearing for the
appellant would submit that one important fact has not been
taken note of in a proper manner by the assessing officer, by
the appellate authority as well as by the revisional authority.
This fact being that the dealer, who was originally registered
under the provisions of the West Bengal Value Added Tax Act was
M/s. Metco Group Engineers Pvt. Ltd. The appellant before us is
M/s. Mageba Bridge Products Private Limited. The registered
dealer, viz. M/s. Metco Group Engineers Pvt. Ltd., (who we shall
refer to as the "transferor company") stood amalgamated with the
appellant, the transferee company pursuant to a scheme of
amalgamation approved by this Court by an order dated 26th June,
2009. It is further submitted that in terms of the scheme of
amalgamation, it is to take effect from 1 st November, 2007.
Therefore, the learned Advocate for the appellant would contend
that the assessment proceedings initiated by the assessing
officer culminating in an order dated 20th December, 2011 could
not have been passed in the name of the transferor company as on
the said date the transferor company is deemed to have not been
in existence. It is further pointed out that when the appeal
was filed, this issue was pointed out to the appellate authority
and the same was also done before the revisional authority.
However, all the three authorities were of the view that no
reconciliation statement has been produced, books of accounts
have not been produced and therefore, the assessment was
completed, which in our view is in the nature of best judgment
assessment. Therefore, the appellant is before us seeking for
interfering with the order passed by the authorities below.
3. The learned Senior Government Advocate submitted that the
appellant, namely, the transferee company is deemed to have
stepped into the shoes of the transferor company and is liable
to be assessed for the period in question, which is the 4 th
quarter ending 2009 and they are bound to substantiate their
plea by producing the necessary details and documents and having
failed to do so, no fault can be attributed to the assessing
officer for having passed the order dated 20th December, 2011.
4. After we have elaborately heard the learned Advocates for
the parties, we are of the considered view that partially the
appellant has to be blamed for the present position. The
transferor company stood amalgamated with the appellant with
effect from 1st November, 2007 though the scheme of amalgamation
was approved by this Court on 26 th June, 2009. The period for
which the assessment has been made, which is the 4 th quarter
ending 2009 is obviously much after the order of this Court
approving the scheme of amalgamation dated 26th June, 2009.
5. Be that as it may, by operation of law, the transferor
company, namely, M/s. Metco Group Engineers Pvt. Ltd. loses its
identity on and after 1st November, 2007 and whatever the
liabilities, which are existing as on the said date has to be
borne / defended by the appellant, who is the transferee
company. Therefore, the proper course the appellant should have
adopted is to get itself substituted in the place of the
transferor company, produce all the documents and details in
support of its claim and thereafter contest the proposal made by
the assessing officer and take order on merits. However, this
course having not been adopted, it is only the appellant, who
has to be held responsible for the present situation. However,
we are conscious of the fact that the taxes, which are lawfully
due and payable to the State have to be paid and if not paid, to
be collected by the State. Though the assessment was completed
on 20th December, 2011, on account of the mix up the State has
not been able to recover even the taxes which are lawfully
liable to be recovered.
6. Considering all these aspects, we are of the view that the
matter can be remanded to the lower authorities for fresh
considerations.
7. In the light of the above, the writ appeal is allowed and
the connected application is disposed of. The order passed in
the writ petition is set aside and consequently, the order
passed by the revisional authority dated 17th July, 2019 and the
order passed by the appellate authority, namely, the Joint
Commission of Sales Tax, Kolkata South Circle dated 26 th
September, 2013 are set aside and the matter is remanded to the
appellate authority for fresh consideration. The appellant is
directed to file a petition before the appellate authority
seeking substitution of name of the appellant in place of the
transferor company. Such application shall be filed within 10
days from the date of receipt of the server copy of this order.
On such application being filed, the appellate authority shall
allow the application and substitute the appellant in the place
of M/s. Metco Group Engineers Pvt. Ltd. This exercise has to be
necessarily done on account of the fact that the registration
certificate granted in the name of M/s. Metco Group Engineers
Pvt. Ltd. has been cancelled with effect from 1st November, 2007
and rightly so.
8. After the appellant has been substituted, the appellate
authority shall grant 7 days time to the appellant to produce
all the details and documents including Form - C declaration,
books of accounts, ledgers, etc. to substantiate its claim.
Upon production of those documents, books of accounts and
details, the appellate authority shall afford an opportunity of
personal hearing to the authorised representative of the
appellant and thereafter proceed to pass an order on merits and
in accordance with law.
9. In the event, the appellant fails to produce the documents,
details, books of accounts, Form C declaration, etc. within the
time permitted by this Court, the benefit of this judgment and
order will not enure in favour of the appellant and the appeal
would stand dismissed without further reference to this Court
and the order passed by the appellate and revisional authorities
would stand revived.
10. We further make it clear that this order will concern the
period of assessment, namely 4th quarter ending 2009 as has been
mentioned in the revisional authority's order.
11. No costs.
12. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
