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Mansey Lakhansey and Company Vs. the State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Civil Miscellaneous Writ No. 778 of 1962
Judge
Reported in[1962]13STC898(All)
AppellantMansey Lakhansey and Company
RespondentThe State of Uttar Pradesh and anr.
Appellant Advocate S.C. Khare, Adv.
Respondent Advocate The Standing Counsel
DispositionPetition dismissed
Excerpt:
.....a particular provision can be curtailed where there is a specific provision for the curtailment of such a power under another provision of the statute. 17. for the reasons stated above this writ petition must fail and is dismissed with..........evidence, namely a certificate in form iii-a. thus the rule has made an inroad on the unqualified right conferred by section 3-aa and has limited and curtailed it, and a rule, which takes away from the amplitude of a right under a statutory provision and curtails and limits it is ultra vires.10. in order to examine the merits of this argument, it is necessary to consider the nature of the right which has been conferred by the relevant provision in section 3-aa. all that that provision lays down is that in order to rebut the presumption of sale to the consumer, a dealer would have the right to prove to the contrary. it is not the case of the petitioner that the rule has deprived him of the right and the opportunity of rebutting the presumption. what is said is that implied in the right.....
Judgment:

Brij Lal Gupta, J.

1. This is a petition under Article 226 of the Constitution praying for the issue of a writ of cerliorari for the quashing of an order dated 23rd December, 1961, assessing the petitioner to sales tax under the U. P. Sales Tax Act.

2. The petitioner's case is that out of its total turnover it was entitled to exemption in respect of a turnover of Rs. 4,04,496-76 nP. as the particular turnover related to the sale of oil-seeds which according to the petitioner were sold not to consumers but to dealers for the purpose of resale by them in the same condition.

3. It may be stated that under the provisions of Section 3-AA sale of oil-seeds by a dealer to a consumer alone was liable to sales tax. The assessment order relates to the petitioner's assessment for the year 1957-58. At the material time Section 3-AA stood as follows :-

Notwithstanding anything contained in Section 3 or 3-A, the turnover in respect of coal, iron and steel, raw jute, cotton, oilseeds or raw hides and skins, shall not be liable to tax except at the point of sale by a dealer to the consumer and the rate of tax shall not exceed three pies per rupee. Unless the dealer proves otherwise, a sale shall be presumed to be to a consumer.

4. Subsequently, the above section was amended. The words 'unless the dealer proves otherwise a sale shall be presumed to be to a consumer' were deleted from the main section, and enacted in Sub-section (2): 'Unless the dealer proves otherwise, every sale by a dealer shall, for the purpose of Sub-section (1), be presumed to be to a consumer.

5. It will however be seen that in respect of the presumption the amendment did not make any real change in the section. Both prior as well as subsequent to the amendment a sale of the goods mentioned in the section was presumed to be to a consumer unless proved to be otherwise. But the presumption was always a rebuttable one, and it was open to a dealer to prove that the sale was not to a consumer and did not attract the liability to sales tax.

6. By Notification No. 1095/X-1086-56 dated 30th March, 1957, a rule was made by the rule-making authority under the powers conferred on. it by Section 24 of the Act. The rule was as follows ;-

12-A. A sale of any of the goods specified in Section 3-AA shall be deemed to be a sale to the consumer, unless it is to a dealer who furnishes a certificate in Form III-A to the effect that the goods purchased are for re-sale in the same condition. Details of all such certificates shall be furnished by the selling dealer with his return in Form IV.

7. It may be stated that under the U. P. Sales Tax Act the return to be filed is a quarterly return. It follows that under the rule, the requisite certificate in Form III-A had to be filed with each quarterly return.

8. Admittedly the petitioner did not furnish a certificate in Form III-A, but produced two affidavits and a contract book in order to prove that the sales of oil-seeds by it had been made not to consumers, but to dealers, for resale in the same condition, and as such, the sales were not liable to sales tax. The Sales Tax Officer did not accept this evidence, as he took the view that the certificate in Form III-A required by Rule 12-A not having been filed and that being the only mode of proof permissible, the sales were not exempt from sales tax.

9. The only argument which has been addressed to me by the learned counsel for the petitioner is that Rule I2-A is ultra vires of the provision in Section 3-AA of the U. P. Sales Tax Act. His point is that Section 3-AA gives the dealer a right to produce any kind of evidence or material to rebut the presumption that the sale was to a consumer, and the rule abridges or curtails that right by providing for proof only by a particular kind of evidence, namely a certificate in Form III-A. Thus the rule has made an inroad on the unqualified right conferred by Section 3-AA and has limited and curtailed it, and a rule, which takes away from the amplitude of a right under a statutory provision and curtails and limits it is ultra vires.

10. In order to examine the merits of this argument, it is necessary to consider the nature of the right which has been conferred by the relevant provision in Section 3-AA. All that that provision lays down is that in order to rebut the presumption of sale to the consumer, a dealer would have the right to prove to the contrary. It is not the case of the petitioner that the rule has deprived him of the right and the opportunity of rebutting the presumption. What is said is that implied in the right to rebut the presumption is the right to rebut it on the basis of any kind of evidence or material that a dealer may choose to produce before the Sales Tax Officer. I cannot agree with him in this. The right to an opportunity to prove a particular point is quite distinct from the right as to the choice of the materials on the basis of which the point may be proved. When one speaks of proof one implies that a, certain state of facts exists or does not exist. The material on the basis of which the conclusion may be drawn is a thing quite distinct and apart. It follows that Section 3-AA, while it gives the right to a dealer to rebut the presumption or to prove the existence or non-existence of a certain state of facts, does not give him any right as to the choice of the materials on the basis of which the fact may be proved or disproved.

11. So far as Rule I2-A is concerned, it in no way takes away from him the right or the opportunity to rebut the presumption. All that that rule does is to lay down that in order to rebut the presumption and to prove a contrary state of facts to exist, a certificate in Form III-A will be the only material or evidence. Thus while the section deals with the right or the opportunity to prove or disprove a particular fact, the rule deals with the materials on the basis of which the fact might be proved or disproved. It follows that the subject-matter of Section 3-AA and of Rule I2-A is quite distinct. It must, therefore, be held that Rule I2-A does not in any way abridge or take away the right conferred by Section 3-AA and the argument must, therefore, fail and in the result the writ petition must be dismissed.

12. There is, however, another way of looking at the matter. Rule I2-A has been framed in the exercise of powers conferred upon the rule-making authority by Section 24 of the Act. Section 24 provides in its first sub-section as follows :-

The State Government may make rules to carry out the purposes of this Act.

13. In its second sub-section, in Clauses (c) and (f) it provides as follows :-

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for ;.

(c) the determination of turnover for the purpose of assessment of tax under this Act..

(f) generally regulating the procedure to be followed and the forms to be adopted in proceedings under this Act...

14. The purpose of the Act is to levy sales tax. The tax can be levied only after an assessment is made. In making an assessment the turnover has to be determined. In determining the total taxable turnover certain deductions have to be made. The proceeding for assessment has to be initiated, and in due course, to be concluded. In the course of the proceeding, certain conclusions have to be reached on the basis of the evidence and the materials produced therein. From this it is quite clear that a rule providing for the mode of proof or providing for materials on the basis of which a particular fact might be established or a particular presumption rebutted, is a rule for carrying out the purposes of the Act, and can be validly made under Sub-section (1) of Section 24 in the exercise of the generality of the rule-making power. Further, it seems to me that the impugned rule also falls within the abmit of the particular powers envisaged under Section 24(2) (c) and (f). In either view, it appears to me to be quite clear that the rule-making authority was fully empowered to make Rule I2-A in the exercise of the power conferred on it under the Act. As such the rule was perfectly valid and not ultra vires. It has the same force as a section in the Act and its authority is on a par with the authority of the section itself.

15. Learned counsel has, however, urged that even though Rule I2-A might be within the competence of the rule-making authority conferred on it by Section 24, it is still ultra vires, because it abridges or curtails the amplitude of the right conferred on a dealer under Section 3-AA. I do not agree with this submission. Both Sections 3-AA and 24 are parts of the same statute. Assuming that the Legislature thought it fit to confer an amplitude of power on a dealer under Section 3-AA, it is perfectly possible to conceive that it might have liked to abridge or curtail it under Section 24, by which it conferred a power on the rule-making authority. The two provisions cannot be read in isolation. If the two provisions are read together, then it must necessarily follow that the Legislature curtailed the wide powers conferred under Section 3-AA and the real content of the power conferred must be determined by reading both the provisions together, and not merely one of them. Apart from this, as I have already held above, the power conferred under Section 3-AA was in no way curtailed by the rules, the subject of which was quite different from the subject of the section.

16. In support of his submission that a statutory provision cannot be cut down or curtailed by a rule, learned counsel cited before me several cases. There can be no quarrel with this proposition but the point does not arise in the case, because as already observed, there was no curtailment of any power or right by the rule. Apart from this, it is well-settled that a power under a particular provision can be curtailed where there is a specific provision for the curtailment of such a power under another provision of the statute. In this connection, I may only mention the Full Bench decision of the Madras High Court in Madurai Pillai v. Muthu Chetty A.I.R. 1914 Mad. 257. It follows that even if a wider power had been conferred on a dealer under Section 3-AA, if there was provision in Section 24 for the curtailment of such power, as to my mind there is, the power could be validly curtailed. But as I have already observed above, the point does not arise in the case.

17. For the reasons stated above this writ petition must fail and is dismissed with costs.


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