Calcutta High Court (Appellete Side)
India Private Limited Company vs State Of West Bengal & Ors on 27 September, 2024
4 IN THE HIGH COURT AT CALCUTTA
27.09.2024 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct 5 APPELLATE SIDE
WPA 21827 of 2024
M/s. Venkateshwara Hatcheries
India Private Limited Company
Versus
State of West Bengal & Ors.
Mr. Sandeep Sachdeva
Mr. Devang Bhasin
Mr. Vaisakh Nair
Ms. Pooja Sah
... For the petitioner.
Mr. Anirban Ray, Ld. GP
Mr. T. M. Siddiqui
Mr. Tanoy Chakraborty
Mr. Saptak Sanyal
Mr. N. Chatterjee
... For the State.
1. Challenging the review order dated 20th June, 2024,
passed by the West Bengal Commercial Taxes Appellate
and Revisional Board, the instant writ petition has
been filed. The petitioner also prays for a declaration
that the S. No. 559 of "Commodity wise rate of taxes"
as published on the website of the Directorate of
Commercial Taxes, which states the Process Food (Air-
tight pack) with Brand Name (Specified elsewhere) fall
under residual entry of Schedule CA to the West
Bengal Value Added Tax Act, 2003, attracts VAT @
14.5 per cent, being non-existent entry under the tariff
schedule to the West Bengal VAT Act, 2003 (hereinafter
referred to as the "said Act") has been issued without
authority and is ultra-vires the provisions of the said
Act as well as the Articles 14, 19 and 265 of the
2
Constitution of India.
2. Mr. Siddiqui, learned Additional Government Pleader
appearing on behalf of the State, at the very outset,
opposing the present writ petition would submit that
the present writ petition may not be maintainable
before this Court since the said Act is a specified Act
within the meaning of Section 2(k) of the West Bengal
Taxation Tribunal Act, 1987 (herein after referred to as
the "Tribunal Act 1987"), and the petitioner questions
action taken under the said Act and also questions an
entry thereunder.
3. Mr. Sachdeva, learned advocate appearing in support
of the writ petitioner would submit that the petitioner
is engaged in the business of selling processed poultry
products like, chicken Nuggets, Chicken Cutlets,
Chicken Sheek Kabab and the like since 2013. In order
to manufacture such processed meat products the
petitioner undertakes various processes like cutting,
grinding of poultry products.
4. In accordance with the provisions of the said Act, the
petitioner in usual course had discharged 5 per cent
VAT on sale of the aforesaid category of products in
accordance with the S. No. 58A of the Schedule C of
the VAT Act. Such classification of goods was accepted
by the respondents and was never disputed in any of
the assessment proceedings for the previous years.
5. However, based on Entry No. 559 of the "Commodity
wise rate of tax" which was published on the website of
the respondents which according to him has no legal
backing and force, the respondents have suo moto
reopened the assessment for the financial year 2015-
16 and have directed the petitioner to discharge VAT
on processed meat products @ 14.5 per cent in
accordance with S. No. 559 of the said Act read with
Schedule CA of the said Act. The aforesaid suo moto
revisional order dated 17th March, 2022 passed under
Section 85 of the said Act, was challenged by the
petitioner before the Revisional Board, which was
registered as Case No. 197 of 2022-23. The same was
disposed of by an order dated 20th June, 2024 which
forms subject matter of challenge in the present writ
petition. He would submit that the petitioner questions
the very jurisdiction of the respondents to include S.
No. 559 in the "Commodity wise rate of tax" as
published by the Directorate of Commercial Taxes on
the ground that the same is ultra vires the Act and the
Constitution. According to him since, the very basis of
the revisional order and the subsequent review order is
under challenge as being ultra-vires to the provisions
of the said Act, this Hon'ble Court in exercise of its
extraordinary jurisdiction is competent to entertain the
same. In support of his contention, he has placed
reliance on a judgment delivered by the Hon'ble
Supreme Court in the case of Godrej Sara Lee Ltd. Vs.
Excise and Taxation Officer-cum-Assessing
Authority and Others reported in (2023) 109 GSTR
402.
6. Heard the learned advocates appearing for the
respective parties and considered the materials on
record. Since the point of maintainability has been
raised, this Court proceeds to examine the same. I find
that the said Act is a specified Act as defined in Section
2(k) of the Tribunal Act 1987. In this case the
petitioner not only questions the action of the
respondents in relation to the levy and assessment of
tax under the specified Act but also questions the
validity of an entry published by the respondents as
ultra-vires the said Act and the Constitutional
provisions. I may note that the main thrust of the
argument of the petitioner is that since, the
constitutional validity of the particular entry notified
under the said Act is under challenge, the taxation
Tribunal is incompetent to entertain the same. He has
also contended that since, the jurisdictional issue is
involved, this Hon'ble Court in exercise of its power is
competent to entertain the writ petition.
7. To test out the aforesaid contention as regards
maintainability of the writ petition as opposed to
entertainability, it is necessary to consider the
provisions of Sections 6 and 14, of the Tribunal Act, 1987
having regard to the admitted position that the said Act
is a specified Act as defined in Section 2(k) read with
the schedule to the Tribunal Act, 1987. To appreciate
the provisions of Sections 6 and 14, of the Tribunal Act
1987, the same are reproduced herein below:
"6. Jurisdiction, powers and
authority of the Tribunal.--(1) Save as
otherwise expressly provided in this Act, the
Tribunal shall exercise, with effect from such
date as may be specified by the State
Government by notification in this behalf, all
the jurisdiction, powers and authority
exercisable immediately before that day by
all Courts including the High Court but
excluding the Supreme Court of India for
adjudication or trial of disputes or complaints
or offences with respect to all matters of levy,
assessment, collection and enforcement of
any tax under any specified State Act and
matters connected therewith or incidental
thereto:
Provided that where the matter relates to
disposal of question of constitutional validity
of any provision of any specified State Act,
the matter shall be decided by a Bench
constituted of at least three Members of
which the Chairman shall be one.
(2) Notwithstanding anything contained
elsewhere in this Act, all proceedings triable
by any Court or Courts in accordance with
the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974), shall continue to
be tried by such Court, and the Tribunal
shall have no jurisdiction to try such
proceedings.
Explanation.--For the purpose of this sub-
section, proceedings shall include
proceedings under Chapter XXIX and
Chapter XXX of the Code of Criminal
Procedure, 1973.
14. Exclusion of jurisdiction of Courts.--
On and from the date from which jurisdiction,
powers and authority becomes exercisable
under this Act by the Tribunal, the High
Court or any Civil Court except the Supreme
Court of India shall not be entitled to
entertain any proceeding or to exercise any
jurisdiction or shall not have any jurisdiction,
powers and authority in relation to the
adjudication or trial of disputes, complaints
or offences with respect to levy, collection,
assessment and enforcement of any tax
under any specified State Act and any matter
connected therewith or incidental thereto."
8. Having regard thereto, and considering the judgment
delivered by the Hon'ble Supreme Court in the case of
L. Chandra Kumar v. Union of India & Ors.,
reported in (1997) 3 SCC 261 and an unreported
judgment delivered by the Hon'ble Division Bench of
this Court in the case of Reckitt Benckiser (India)
Ltd. & Anr. v. The Commissioner of Commercial
Taxes & Ors., on 3rd September, 2013, I find that the
matter does not only relate to question limited to
entertainability but as regards maintainability of the
writ petition by this Court under Article 226 of the
Constitution of India especially, having regard to the
provisions contained in Section 6 of the Tribunal Act
1987. Although Mr. Sachdeva would submit that the
entry S No. 559 is under challenge as being ultra vires
to the provisions of the said Act and having regard to
the jurisdictional issue being raised, the writ petition is
maintainable before this Court, I, however, notice that
the Hon'ble Supreme Court in L. Chandra Kumar
(supra) in paragraphs 90 and 93 had been pleased to
answer the identical issue by observing as follows:-
'90. We may first address the issue of exclusion
of the power of judicial review of the High Courts. We
have already held that in respect of the power of
judicial review, the jurisdiction of the High Courts
under Articles 226/227 cannot wholly be excluded. It
has been contended before us that the Tribunals
should not be allowed to adjudicate upon matters
where the vires of legislations is questioned, and that
they should restrict themselves to handling matters
where constitutional issues are not raised. We cannot
bring ourselves to agree to this proposition as that
may result in splitting up proceedings and may cause
avoidable delay. If such a view were to be adopted, it
would be open for litigants to raise constitutional
issues, many of which may be quite frivolous, to
directly approach the High Courts and thus subvert
the jurisdiction of the Tribunals. Moreover, even in
these special branches of law, some areas do involve
the consideration of constitutional questions on a
regular basis; for instance, in service law matters, a
large majority of cases involve an interpretation of
Articles 14, 15 and 16 of the Constitution. To hold that
the Tribunals have no power to handle matters
involving constitutional issues would not serve the
purpose for which they were constituted. On the other
hand, to hold that all such decisions will be subject to
the jurisdiction of the High Courts under Articles
226/227 of the Constitution before a Division Bench of
the High Court within whose territorial jurisdiction the
Tribunal concerned falls will serve two purposes.
While saving the power of judicial review of legislative
action vested in the High Courts under Articles
226/227 of the Constitution, it will ensure that
frivolous claims are filtered out through the process of
adjudication in the Tribunal. The High Court will also
have the benefit of a reasoned decision on merits
which will be of use to it in finally deciding the matter.
93. Before moving on to other aspects, we may
summarise our conclusions on the jurisdictional
powers of these Tribunals. The Tribunals are
competent to hear matters where the vires of statutory
provisions are questioned. However, in discharging
this duty, they cannot act as substitutes for the High
Courts and the Supreme Court which have, under our
constitutional set-up, been specifically entrusted with
such an obligation. Their function in this respect is
only supplementary and all such decisions of the
Tribunals will be subject to scrutiny before a Division
Bench of the respective High Courts. The Tribunals
will consequently also have the power to test the vires
of subordinate legislations and rules. However, this
power of the Tribunals will be subject to one important
exception. The Tribunals shall not entertain any
question regarding the vires of their parent statutes
following the settled principle that a Tribunal which is
a creature of an Act cannot declare that very Act to be
unconstitutional. In such cases alone, the High Court
concerned may be approached directly. All other
decisions of these Tribunals, rendered in cases that
they are specifically empowered to adjudicate upon by
virtue of their parent statutes, will also be subject to
scrutiny before a Division Bench of their respective
High Courts. We may add that the Tribunals will,
however, continue to act as the only courts of first
instance in respect of the areas of law for which they
have been constituted. By this, we mean that it will
not be open for litigants to directly approach the High
Courts even in cases where they question the vires of
statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is
challenged) by overlooking the jurisdiction of the
Tribunal concerned.'
9. Having regard thereto, and the specific observation of
the Hon'ble Supreme Court wherein it held that the
Tribunals will consequently also have the power to test
the vires of subordinate legislations and rules,
however, this power of the tribunal will be subject to
one important exception that the tribunal shall not
entertain any question regarding the vires of their
parent statutes following the settled principle that a
tribunal which is a creature of an Act cannot declare
that very Act to be unconstitutional, and since the
petitioner only questions an entry under the said Act
as ultra vires the said Act, the writ petition, in my view
is not maintainable before this Court at the first
instance. Although, Mr. Sachdeva has placed lot of
stress on the judgment delivered in the case of Godrej
Sara Lee Ltd. (supra) to drive home the point that this
Hon'ble Court in exercise of its constitutional writ
jurisdiction is competent to entertain a writ petition of
this nature, I find that the facts based on which the
judgment was delivered in the case of Godrej Sara Lee
Ltd. (supra) are entirely different. The question that fell
for consideration in the said special leave petition was
whether the High Court was justified in declining
interference on the ground of an alternative remedy in
the form of an appeal under Section 33 of the VAT Act.
Such is not the case here. In the instant case, the
order passed by the West Bengal Commercial Taxes
Appellate and Revisional Board, having regard to the
provisions contained in Section 5, 6 and 14 of the
Tribunal Act 1987 can only be questioned before a
Tribunal with a right of a further judicial review before
the Divisional Bench under Article 226 of the
Constitution of India. In view thereof, I am unable to
accept the contentions of Mr. Sachdeva and the
judgments cited by him do not assist the petitioner.
10. At this stage, Mr. Sachdeva would submit that an
opportunity may be granted to the petitioner to
approach the tribunal within a further period of two
weeks from date. I am of the view, since this Court
does not have the jurisdiction to take up this matter,
no such liberty can be afforded to the petitioner.
11. With the above observation, the writ petition stands
dismissed without any order as to costs.
Urgent Photostat certified copy of this order, if
applied for, be made available to the parties upon
compliance of requisite formalities.
(Raja Basu Chowdhury, J.)
