Judgment:
1. By the instant application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, the applicant, the proprietor of Kunjilal Hariram, has challenged the validity of the garnishee proceeding initiated under Section 57 of the West Bengal Sales Tax Act, 1994.
During the hearing of the application for the purpose of the admission of the same, Mr. M.L. Bhattacharyya, learned advocate for the applicant, has advanced two-fold reason. The first ground for challenging the validity of the application is that though the prayer for staying of realisation of the tax on the basis of assessment is pending before the appellate authority, the Commercial Tax Officer, i.e., the assessing authority, has started garnishee proceeding under Section 57 of the 1994 Act. He points out that in the said proceeding the bank account of Kunjilal Hariram has been attached and direction has already been given for depositing with the Revenue the money lying in the said account. His contention is that if money is deposited with the Revenue the very purpose of preferring appeal and the application for stay will become infructuous. According to him, before disposal of the stay petition, the garnishee proceeding should not have been initiated.
2. Mr. Bhattacharyya's second contention is that the garnishee proceeding having been initiated in the trade name of the proprietorship concern and not in the name of the proprietor who is the real assessee, the instant garnishee proceeding cannot stand.
3. The applicant by the instant application has prayed for setting aside the attachment order and for restraining the respondent from proceeding any further with the garnishee proceeding on the basis of the assessment which is already under challenge before the appellate authority.
4. Mr. S.K. Saha Roy, learned State Representative, submits that garnishee proceeding being a special provision can be initiated any time without waiting for the decision in the appeal or in connection with the stay petition. He draws our attention to the provision of Section 57 which contemplates initiation of garnishee proceeding at any time. According to Mr. Saha Roy, in view of this special provision the assessing authority is competent enough to initiate the garnishee proceeding even when the appeal against the assessment is pending. As regards the second point Mr. Saha Roy concedes that in issuing, of the notice on the bank the assessing authority made a mistake in describing Kunjilal Hariram as the dealer-assessee. He admits that this notice requires amendment. He however, adds that since the bank account is being maintained in the name of Kunjilal Hariram, the assessing officer has mentioned the said trade name for the dealer.
5. Having considered of these aspects we are of the opinion that the garnishee proceeding should not have been initiated in the trade name alone and that it should have been initiated in the name of actual assessee. However, an additional description of her as the proprietor of Kunjilal Hariram may help in proper identification of the appropriate bank account. In view of this defect the notice cannot be allowed to remain and it must go. We have been told by Mr. S.K. Saha Roy that the hearing on the stay petition has already been fixed on February 12, 1999. This application should be disposed of with enough promptitude so that the applicant may know her position as regards her prayer for stay of further proceeding in connection with the impugned assessment.
6. In view of these circumstances we are of the opinion that the instant application can be disposed of immediately without exchange of affidavits. Accordingly, the impugned notice issued on the bank is hereby set aside and the attachment, if any, made shall not stand any further. It is further directed that the stay petition should be heard and disposed of by the appellate authority on the date as already been fixed. However, the appropriate authority will be competent to proceed according to law after the stay petition is disposed of by the appellate authority.
7. Before we part with the matter we like to refer to the paragraph 5 of the application wherein Rs. 76,92,307.69 has been shown as the amount of tax demanded. Mr. Saha Roy has pointed out the actual demand is for Rs. 4,86,683. Verbal prayer has been made before us on behalf of the applicant for permission to rectify of this error. Permission is accorded.