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Mallick Hashim and Co. Vs. Commercial Tax Officer Bijapur and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 417 and 418 of 1967 and Sales Tax Revn. Petn. No. 43 of 1967
Judge
Reported inAIR1969Kant303; AIR1969Mys303; (1969)1MysLJ50
ActsMysore Sales Tax Act - Sections 5(1), 5(4), 38 and 39; Central Sales Tax Act - Sections 15
AppellantMallick Hashim and Co.
RespondentCommercial Tax Officer Bijapur and ors.
Excerpt:
.....tax shall be refunded it is not within competence of government to make rule that tax shall not be refunded unless application is made within limitation period - further omission to make application in prescribed form cannot lead to nullification of absolute right to refund expressly created by proviso to section 5 (4) - held, petitioners entitled to claim refund. held see paras 7, 11 and 12. - labour & services. dismissal from service: [subhash b. adi, j] order passed by appellate authority instead of disciplinary authority validity - held, no doubt, under the standing orders the order of dismissal has to be passed only by project engineer or an officer of equal cadre. object of holding enquiry before the punishment is imposed is that, the employee gets fair chance to defend his..........trade or commerce. the manner in which that refund could be made should be prescribed by a rule as the proviso expressly authorises. similarly the conditions subject to which that refund shall be made could also be imposed which destroy the right to a refund which is otherwise absolute. the conditions authorised are conditions which regulate the refund and not conditions which result in the extinguishment of the right to a refund which the legislature has created under the proviso.7. it is of significance to observe that the conditions authorised by the proviso are not conditions subject to which a claim to a refund could be made, but conditions subject to which a refund shall be made. while the proviso authorises the procedure to be adopted by the commercial tax officer in the.....
Judgment:

Somnath Iyer, J.

1. These three matters raise the same question, and so, could be disposed of by a common judgment. The petitioner in W. Ps. 417 and 418 of 1967 is a dealer in hides and skins. The petitioner in S. T. R. P. 43 of 1967 is a dealer in copra and coconuts. Their turnover during the relevant assessment years was subjected to sales tax under the Mysore Sales Tax Act, but the goods which were purchased by these two dealers which were declared goods within the meaning of Section 5(4) were subsequently sold in the course of inter-State trade and commerce. So they claimed a refund of the tax which had been paid by them. That refund is what is claimable under the proviso to Section 5(4) of the Mysore Sales Tax Act Which reads:--

'5(4) Notwithstanding anything contained in sub-section (1) a tax under this Act shall be levied in respect of the sale or purchase of any of the declared goods mentioned in column (2) of the Fourth Schedule at the rate and only at the point specified in the corresponding entries of columns (4) and (3) of the said Schedule on the dealer liable to tax under this Act on his taxable turnover of sales or purchases in each year relating to such goods: Provided that where tax has been paid in respect of the sale or purchase of any of the declared goods under this sub-section and such goods are subsequently sold in the course of inter-State trade or commerce, the tax paid under this Act shall be refunded to such person in such manner and subject to such condition as may be prescribed.'

2. In the exercise of the rule-making power created by Section 38 of the Act, Government made rule 39-A which prescribed the manner in which and the conditions subject to which the refund directed by the proviso to Section 5(4) could be made. The relevant part of that rule reads:--

'39-A. Refund of tax in the case of certain types of sales of declared goods.--

(1) The tax levied under sub-section (4) of Section 5 in respect of the sale or purchase inside the State of any goods specified therein shall, if such goods are sold in the course of inter-State trade or commerce, be refunded in the manner and subject to the conditions prescribed in this rule to the dealer who has made the inter-State sale.'

(We have omitted from sub-rule (1) the concluding part of it which was struck down by this Court in Munshi Abdul Rahman & Bros. v. Commercial Tax Officer. (1967) 20 STC 89 (Mys).)

'(2) Every such dealer who claims a refund under the rule, shall within the time allowed in sub-rule (3), submit to the assessing authority a statement in Form 4-A.

(3) The statement referred to in sub-rule (2) shall be submitted so as to reach the assessing authority not later than the date on which the return of turnover for the period in respect of the sale in the course of inter-State trade or commerce referred in sub-rule (1) is due'** ** ** **

3. The petitioner in W. Ps. 417 and 418 of 1967 which is a firm called Mallick Hashim and Company did not present any application in form 4-A to which rule 39-A(2) refers, and the petitioner is S. T. R. P. 43 of 1967 which is another firm did made an application in Form 4-A, but did not make it within the time prescribed by sub-rule (3). So the Commercial Tax Officer refused the refund sought by them. From that order the petitioner in S. T. R. P. 43 of 1967 preferred two unsuccessful appeals to the Deputy Commissioner and the Sales Tax Appellate Tribunal. The petitioners ask us to quash those orders by which the refund claimed by them was disallowed and ask them for a mandamus to the Commercial Tax Officer that he should make the refund claimed by them.

4. It is undisputed that the declared goods which were purchased by the petitioners were subsequently sold by them in the course of inter-State trade or commerce. So. they became entitled to the refund of the tax paid by them on their purchases inside the State under the proviso to Section 5(4) of the Mysore Sales Tax Act, whose provisions are similar to the provisions of Section 15(b) of the Central Sales Tax Act. That the goods purchased by the petitioners and subsequently sold by them are declared goods within the meaning of Section 5(4) of the Mysore Sales Tax Act is also not controverted. So the only question which arises for decision is whether the Commercial Tax Officer could have refused the refund on the ground that no application was presented by the petitioners before us within the time allowed by rule 39-A(3).

5. Mr. Srinivasan appearing for the petitioners asks us to say that that part of Rule 39-A which prescribes the form and the period of limitation within which the claim should be made is not authorised by the proviso to Section 5(4) of the Mysore Sales Tax Act. We are of the opinion that he is right in making the submission that that part of Rule 39-A which prescribes the period of limitation was beyond the competence of Govt.

6. The proviso to Section 5(4) consists of two parts. The first part creates an absolute claim to a refund which cannot be refused. the second authorises the prescription of the manner and the condition subject to which that refund could be made. There is nothing in the proviso which could be regarded as the source of power in the exercise of which Government could either under Section 38 or otherwise make a rule prescribing a period of limitation. The words 'shall be refunded' occurring in the proviso indicate that there shall not be a refusal of the refund which the proviso directs, in a case where there is a subsequent sale of declared goods in the course of inter-State trade or commerce. The manner in which that refund could be made should be prescribed by a rule as the proviso expressly authorises. Similarly the conditions subject to which that refund shall be made could also be imposed which destroy the right to a refund which is otherwise absolute. The conditions authorised are conditions which regulate the refund and not conditions which result in the extinguishment of the right to a refund which the Legislature has created under the proviso.

7. It is of significance to observe that the conditions authorised by the proviso are not conditions subject to which a claim to a refund could be made, but conditions subject to which a refund shall be made. While the proviso authorises the procedure to be adopted by the Commercial Tax Officer in the disposal of a claim for refund, it does not authorise the imposition of fetters on the exercise of the right to a refund to which a dealer who has subsequently made an inter state sale has become absolutely entitled. If the proviso says that the tax paid in that situation shall be refunded, it is not within the competence of Government to make a rule that that tax shall not be refunded unless an application is made within the period of limitation prescribed by them.

8. In Tirumurthichettiar v. State of Madras, : AIR1969Mad91 the High Court of Madras expressed the opinion that there was nothing in the proviso to Section 4 of the Madras General Sales Tax Act, the provisions of which correspond to the proviso to Section 5(4) of the Mysore Sales Tax Act, which could bestow power on Government to make a rule prescribing a period of limitation for a claim to a refund which could be made under the proviso. We respectfully concur in the view expressed in that case. So the claim to a refund could not have been refused by the Commercial Tax Officer on the ground that it was not made within the period of limitation prescribed by Rule 39-A(3).

9. The next question is whether in the case of the petitioners in the two writ petitions before us that refund could have been refused on the ground that they did not make an application in form 4-A of which rule 39-A (2) speaks. Although the petitioner in S. T. R. P. 43 of 1967 did make an application in form 4-A, the petitioner in the other two writ petitions did not. What he did was to merely make an application in the usual way for a refund. But we do not think that the omission on his part to make an application in the prescribed form disentitled him to the refund claimed by him.

10. It will seem that the particulars to be specified in form 4-A are those which at the stage when that application has to be made are fully known to the Commercial Tax Officer or could be otherwise gathered. Column No. 1 asks the applicant to mention the serial number and it is difficult to understand what that column means. Column 2 requires him to specify the name, address and the registration number of the dealer who paid the tax under Section 5(4) of the Act and those particulars relate to the applicant. Against column 3 the description of the goods has to be given. Column 4 asks him to specify the period of the return relating to the assessment under Section 5(4). Against column 5 the amount of the tax paid under Section 5(4) has to be specified. Column 6 asks for unnecessary information with respect to antecedent transactions and column 7, the date on which the inter State sale was effected by the applicant. Against column 8 there should be a specification of the amount of the central sales tax paid by the applicant, and, the information required against that column has no relevance by reason of the decision of this Court in (1967) 20 S.T.C. 89 (Mys), the elucidation made in which was that the payment of the tax under the Central Sales Tax Act is not a condition precedent to a claim to refund. Against column 9 the applicant has to state the amount of the tax of which he seeks refund. There is a declaration at the end of the form which has to be signed by the applicant.

11. It will be seen that although it would be convenient for a dealer who makes an application for a refund to specify the information to which the form refers so that the Commercial Tax Officer may expeditiously dispose of the application on the basis of the form which is self contained, it is clear that the requirement that the application should be made only in that form is merely directory and not mandatory.

12. That being so, the omission to make an application in the form prescribed cannot lead to the nullification of the absolute right to a refund expressly created by the proviso to Section 5(4) of the Act. If the Commercial Tax Officer requires any information which is not already known to him and which has relevance to the claim for a refund, he could always call upon the dealer to furnish that information, but he could not in our opinion, refuse the refund on the ground that information has not already been furnished or that it is not furnished in a particular form.

13. It is we think, plain that the requirement that the application should be made in a particular form is really one of form and is therefore not imperative. It is contended in the cases before us that any information which was necessary to enable the Commercial Tax Officer to make the refund to which the dealers were admittedly otherwise entitled, was not furnished by them. The only ground on which the refund was refused by the Commercial Tax Officer was that the applications were not made within time, and that they were not made in a particular form.

14. Any other view would result in the defeat of the right to ask for an adjustment of the amount to which a refund could be claimed under the proviso against the tax payable by him under Section 5(4) which is recognised by the decision of this Court in Bhandari Rajmal Kusalraj v. State of Mysore, (1967) 11 Law Rep 877 (Mys), (sic) would stand defeated. Such adjustment could not be claimed on the view taken by the Commercial Tax Officer unless the dealer made the application within the prescribed period of limitation and in Form 4-A.

15. That being so, we quash the orders of the Commercial Tax Officer in the two writ petitions and the order which was made against the petitioner in S. T. R. P. 43 of 1967 and direct the Commercial Tax Officer to make the refund prayed for by the petitioners. But we make no direction as regard to costs.

16. Petition allowed.


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