the State of West Bengal v. the Indian Iron & Steel Co. Ltd.

Judgment

The Judgment of the Court was delivered by Hegde, J.-Two questions of law viz. (1) whether the levies impugned in the suit from which this appeal arises, are invalid and (2) whether the civil courts have jurisdiction to entertain that suit, arise for decision in this appeal by certificate. The respondent company is the owner of Rarimagar colliery. It is also the owner of iron and steel factories and workshops at Hirapur and Kulti. Ramnagar colliery is a "coal mine". The. coal raised from the Ramnagar colJiery is by and large used in the manufacturing processes carried on in the iron and steel factories and workshops at Hirapur and Ku!ti. Some coal was also sold by the respondent company to outsiders. In the years 1946-47, 194 7-48 and 1948-49, the respondent company lodged a return before the Collector of Burdwan under s. 72 of the Bengal Cess Act of 1880 (to be hereinafter referred to as the Act).

Therein the company valued the coal supplied by the colliery to the factories mentioned earlier· at Rs. 6/11/5 per ton, a sum less than the actual-cost of -raising the coal and computed ~ts ol. the colliery on that basis. 'The company adoptec:1-the same. basis for the purpose of w. BENGAL v. IRON AND STEEL co. (Hegde, J.) paying education cess under s. 31 of the Bengal Primary Education Act, 1930. The provisions of the said Act in the matter of levy of education cess are similar. to that of the Act. The Cess Deputy Collector who was the assessing authority under the Act as well as the Collector of Burdwa.n, the assessing authority under the Bengal Primary Education Act, rejected the returns submitted 11 by the respondent company and computed the profits of the colliery, valutng the coal supplied by it to the factories mentioned at Rs. 12/8/- per ton which was the control rate at the relevant time. On that basis the cess Deputy Collector called upon the respondent company to pay Rs. 39,852/5/- as road cess a.nd public works cess for the years 1946-47, 1947-48 and 1948-49.

The Collector of Burdwan computed the education cess payable by the company for the years 1946-47 and 1947-48 at Rs. 21,661 ' 90 P. and called upon· the company to pay the same. The respondent· company paid tll.e said amounts under protest. Thereafter it instituted the present suit for refund of Rs. 44,428/4/3, which according to it was the excess amount collected from it. It also prayed for a declaration tltat it earned no profits from the Ramnagar colliery during the years 1946-47, 1947-48 and 1948-49, from the coal consumed in its own workshops and factories and as such no road or public works cess or education cess in respect of the same could have been assessed and levied on it and ·that the impugned levies were 11Jtr11 vires. The trial court decreed the suit as prayed for. The appellant took up the matter in appeal to the High Court of Calcutta. The. High Court dismissed the appeal by its judgment dated April 17, 1962.

In order to decide the points in controversy, it is necessary to read the relevant provisions of the Act. · It is not necessary to refer to the provisions of the Benglll Primary Ed.ucation Act separatel_Y ·as the provisions therein, relevant to the topics under discussion being similar to those in the Act. The preamble to the Act says that it is a law relating to rating for the construction, charges and maintenance of District communications and other works of public utility and of Provincial Public Works within the territories administered by the Lt. Governor of Bengal and to the levy of a road cess and a public works cess on immovable property situate therein and to the construction of local committees f.or the management of the proceeds of the said road cess and also to provide for the construction and maintenance of other works of public utility out of the proceeds of the said road cess ..

It was not disputed that the validity of education c~ss depends on our finding as regards the validity of pablic works cess and road cess. Sec•ion Ll2Supp.CI/71 [1971] l S.C.R. 5 of the Act which is the charging section read at the relevant time:- "From and after the commencement of this Act in any district or any part of a district, all immovable property situate therein, except as otherwise in section 2 provided, shall be liable to the payment of a road cess and a public works cess." Section 6 at the relevant time provided : "The road cess and the public works cess shall be " assessed on the annual value of lands and until provision to the contrary is made by Parliament, on the annual net ' profits from mines, quarries, tramways, railways and other immovable. property ascertained respectively as .this Act prescribed."

That :section further provides that the rates at which such cessi;s respectively shall be levied for each year shall be determined for such year in the manner prescribed in the Act. Part II of the Act sets out the mode of assessment. Chapter II lays down the procedure .for the valuation of lairids. Chapter Ill provides for rating and levy of cesses. Chapter IV prescribes the mode of valuation and assessment of lail.ds held rent free and payment and recovery of cesses in respect thereof. Chapter V deals with valuation, assessment and levy of cess on mines, railways and other immovable property. This chapter cc:ntains ss. 72 to 84. Section 72 at the relevant time read :

"On the commencement of this Act in any district and thereafter before the close of each year, the Collector of the district shall cause a notice to be served upon the owner, chief agent, manager or occupier of every mine, quarry, tramway, railway and other immovable property not included within the provisions of Chapter II; such notice shall be in the form in Schedule E contained and shall require such owner, chief agent, manager or occupier to lodge in the office of such Collector within two months a return of the net annual profits of such property calculated on the average o.f the annual net profits thereof for the last three 'years for which accounts have been made up. Such Collector may iin his discretion extend the time allowed for lodging such return." Section 72A prescribes the penalty for omitting to lodge a return. Section 73 prescribes the manner of submitting the return II w. BENGAL v. IRON AND STEEL co, (Hegde, J.) when the property lies in different districts.

Section 7 4 provide~ for the submissions of th.~ return when property is partly in and partly outside the State. Section 7 5 is important for our present purpose. That section at the relevant time read : "If such return be not furnished within the period c{ two months from the date on which such notice was served or within any extended time allowed by the Collector of the district or if such Collector shall deem that any return made in pursuance of such notice is untrue or incorrect, such Collector shall proceed to ascertain and determine by such ways or means as to him shall seem expendient, the annual net profits of such property calculated ·as aforesaid." Section 76 as it stood at the relevant time provided that if the Collector is unable to ascertain the annual net profits of any property assessable urider Chap. V in accordance with the provisions of s.

75, he may, by such ways and means as shall seem to him expedient ascertain and determine the value of such property and shal! thereupon determine six per centum on such value to be the annual net profits thereon. Section 78 provides for the issue of a notice of valuation to the persc·n concerned. The other provisions in that Chapter are not relevant for our present purpose. Now we come to s. I 02 in Chapter VII. That section reads :

"Every person who shall deem himself to be aggrieved by any valuation made by a Collector under the provisions of section 75 or 76 may, within one month after the issue of the ,notice mentioned in sect'.on 78 and every person who shall deem himself to be aggrieved by any valuation made by the Collector under the provisions of any other section c.f this Part may within one month after the posting up of a copy of the valuation. roli as mentioned in section 35, prefer his objections to the Collector; and if such objections, or any of them, are disallowed, may within one month of such disallowance, appeal to the Commissioner against such valuation, and the decision of the Commissioner shall be final." Before proceeding to discuss the questions of law arising in this appeal, it is necessary to mention that the respcl!ldent company had unsucces~fully appealed against cesses imposed on it.

It wa3 urge:! on behalf of the respondent that supply of coal made by Ramnagar colliery to the factories and workshcps cannot be considered as a sale and without a sale, there can be no profit; and hence in computing the profits of the colliery the value of the [l97lJ I S.C.R. coal supplied to the factories and workshops mentioned earlier should not have been taken into consideration. This contention has to be rejected in view of the decision of this Court in 1a'a lro;1v and Steel Co. Ltd. v. The State of Bihar(1 ). The ratio of that dccisio'l clirectly bears on the point under consideration. It may be noted that the appellant :herein as well as respondent in thb appeal are both Tata concerns. In that case the appellant company was the owner of certain mines in Bihar from where it extrnctcd :iron ore which it utilized in its factory at Jamshedpur for making imn and steel. Under ss.

5 and 6 of the Act as amended in Bihar all immovable property situate in any part of the State of Bihar was liable to the payment of local cess which in the case of mines was to be assessed on the annual profit earned by them. For the assessment years 1954-56, the company was assessed by the Cess Deputy Collector on the basis that it had made profits of Rs. 4/7 /- per ton of iron ore extracted. Tata Iron and Steel Co. Ltd. claimed that it was not liable to the payment of cess as it did not sell any ore as such and could not therefore be treated-. as having made 'any profit' from the mines within the meaning of s. 6 of the Act. The· question in that case was whether the appell2:1t company could in Jaw be said to have derived "profit" from the mines when the ore extracted was not sold by it as such but was utilised by it for the purpose of manufacturing finished products which it sold. This Court ruled in Jhat appeal that on a true construction of ss.

6 and 72 of the Act as amended in Bihar-v·hich amendments are not material for the decision of this case,-where activities other than mere winning the ore are carried on by an assessee with a view to convert the ore into a finished product and there is a transaction of sale of the ultimate product, the profit derived from the working cf the mine is imbedded in the final realisation, and the profit,which ace.rues to the assessee from the mi•rring operation can be disintegrated from the total profit and ascertained and cess levied thereon. Mr. Chagla, learned Counsel for the assessee tried to distinguish that decisiOj'l on the ground that in Tata Iron and Steel case, the iron ore won became imbedded in the steel produced but that is not the position' in the present case us no part of the coal raised got imbedded in the ultimate product namely the steel. This difference in fact has no bearin_g on the ratio of the decision.

The rule laid down in Tata Iron and Steel case is that where the profit derived from the working of a mine is imbedded in the profits earned by the sale of the ultimate product, .it is open for the ·assessing authority to disintegrate that profit and find out the profits earned by the mine. The fact that in the one case the winrning was that of the iron and in the other it is coal makes no difference in principle. In that case this Court ruled that the. winning of the ore and converting it into a finished product [I] [i963) Supp, I, S.C.R. 199. w. BENGAL v. IRON AND STEEL co. (Hegde, J.) could not be construed as two transactions conducted by them but it should be viewed as a single integrated undertaking for the production of steel and steel products. Similar is the position in the present case.

Hence we hold that it was open to the assessing authority to take into consideratioo the value of the coal supplied to the factories and workshops referred to earlier in computing the profits, of the colliery. Mr. Chagla next assailed the cesses imposed on another ground. He contended that in view of the decision of this Court in Tata Iron and Steel Company's case( 1) it was not open to the assessing authority to value the coal supplied to the factories and workshops at the controlled rate; he should have, as suggested in that decision disintegrated the ultimate profits earned and found out the profit earned by the mine. We are of the opinion that it is impermissible for us to go iinto that question in these proceed- . ings. The liability to pay tax is one thing and mode of computation ct' the net profits is another. The mode oil computation is a matter for the assessing authorities except where the computation is done in violation of any provision of law.

If there was any mistake in the computation, that mistake should have been got rectified by following the procedure prescribed in the Act. If ·the respondent company was aggrieved by the mode of computation . adopted by the assessing aut'hority, it should have 'agitated that question firstly before that authority, and thereafter before the appellate authority. Having not done so, the company cannot be permitted to raise that question in the present suit; otherwise the finality contemplated by s, 102 of the Act would become illusory. It is true, as observed by Lord Thankerton in Col/ecror of South Arcot v. Mask & Co.( 2) that it is settled law that the exclusion of jurisdiction of a civil court is not to be readily inferred but that such exclusion must either be explieiily expressed or clearly implied.

It is also well settled as observed by his Lordship that even if the jurisdiction is so excluded, the civil courts have jurisdiction lo examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not 'acted in conformity with the fundamental principles of judicial procedure. In the present case what is contended is not that any provision in the Act had been ignored by the assessinl! authority but that s. 72 thereof has not been properly interpreted by that authority. If the provisions of the Act form a precise, self contained code, as we hold them to be, the assessee cannot be permitted to challenge the levy on the ground that the levy imposed on him is excessiver It must be remembered that the levy under the Act is imposed bv a special law which law also provides its own remedies' for correcting the errors that may be committed by the assessing authority. (!) (1963] Supp. S,C,R.\99 (2) 67, I.A. 222;

(1971 J 1 S.C.R, Where a liability not existing previously is created by a statute which statute at the same time provides a special or particular remedy for correcting any mistake that may occur in its enforcement the aggrieved party must adopt the form of remedy given by the statute and no other. , In Dhulabhai and ors. v. The State of Madhya Pradesh and anr.,( 8 ) our present Chief Justice speaking for the Court. has formulated the circumstances under which the jurisdiction of the civil coun can be invoked in the matter of a levy f>f tax. Therein this Court has !aid down that where the statute gives &•fttlality to the orders of the special tribunals, the civil courts' jurisdiction must be held to be excluded, if there is adequate remedy to do what the civil court would normally do in a suit.

It is further laid down in that ease that questions of the correctness of the a.ssessment apart from its constitutionality are lor the decision of the authorities and a civil suit does not lie if the ·orders of the authority are declared final or there is an express prohibition under the particular Act. We do not think that the civil courts have jurisdiction to examine the correctness of the computation of the net profits made by the authorities under the Act. For the reasons mentioned above, this appeal is allowed and the suit brought by the respondent company dismissed with costs throughout. R.K.P.S. Appeal allowed. (I) [1968] 3 S.C.R. 662