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Lajja Ram Mahesh Dutt Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Sales Tax Application Nos. 411, 412, 413 and 399 of 1974
Judge
Reported in[1975]35STC450(All)
AppellantLajja Ram Mahesh Dutt
RespondentCommissioner of Sales Tax
Appellant Advocate V. Sahai, Adv.
Respondent Advocate The Standing Counsel
DispositionApplication dismissed
Excerpt:
- - in a situation like this the onus would clearly lie upon the department to prove that a particular sale which is sought to be assessed under the notification is a sale by the importer or by the manufacturer, unlike the position that would prevail under section 3 where once a person is found to be a dealer, the onus would lie upon him to show that he is not liable to tax in respect of the turnover of a particular commodity. when the assessee did not produce either the purchase vouchers or indicate the particulars of the selling dealers from whom he purchased the match-boxes, it could reasonably be held that he had failed to discharge the burden which lay upon him......the learned counsel invited our attention to a decision of a division bench of this court in gupta homeo medical stores v. commissioner of sales tax, uttar pradesh [1969] 24 s.t.c. 415. in that case, the bench considered sections 3 and 3-a of the act and held that:section 3-a is an exception to section 3 and once an article is covered by the notification issued under section 3-a its turnover is not liable to tax except when it is sold by the manufacturer or the importer. in a situation like this the onus would clearly lie upon the department to prove that a particular sale which is sought to be assessed under the notification is a sale by the importer or by the manufacturer, unlike the position that would prevail under section 3 where once a person is found to be a dealer, the onus would.....
Judgment:

Satish Chandra, J.

1. These four applications arise out of a common order of the Judge (Revisions) dismissing four revisions with respect to the assessment years 1963-64 to 1966-67. The Judge (Revisions) upheld the assessment of the petitioners to tax as an importer of match-boxes. He held that at the survey, the assessee was found dealing in match-boxes, which had been manufactured outside U. P. He did not produce the purchase vouchers. In his oral statement, he admitted that he did not possess purchase vouchers, He also showed his inability to give particulars of the selling dealers. He did not maintain accounts. The Judge (Revisions) observed that the burden lay upon the assessee to show that all his purchases were from inside the State.

2. The learned counsel for the assessee submitted that the question of law raised in these cases is whether the Judge (Revisions) was justified in placing the burden of proof on the assessee. In support of this contention, the learned counsel invited our attention to a decision of a Division Bench of this Court in Gupta Homeo Medical Stores v. Commissioner of Sales Tax, Uttar Pradesh [1969] 24 S.T.C. 415. In that case, the Bench considered Sections 3 and 3-A of the Act and held that:

Section 3-A is an exception to Section 3 and once an article is covered by the notification issued under Section 3-A its turnover is not liable to tax except when it is sold by the manufacturer or the importer. In a situation like this the onus would clearly lie upon the department to prove that a particular sale which is sought to be assessed under the notification is a sale by the importer or by the manufacturer, unlike the position that would prevail under Section 3 where once a person is found to be a dealer, the onus would lie upon him to show that he is not liable to tax in respect of the turnover of a particular commodity.

3. The U.P. Sales Tax (Amendment and Validation) Act, 1970 (U. P. Act No. 2 of 1970), which came into force on 13th March, 1970, by Section 6 introduced a new Section 12-A. Section 12-A provided :

12-A. Burden of proof .-In any assessment proceedings, when any fact is specially within the knowledge of the assessee, the burden of proving that fact shall lie upon him, and in particular, the burden of proving the existence of circumstances bringing the case within any of the exceptions, exemptions or reliefs mentioned in Section 3-A, Section 3-D, Section 4, Section 4-A, Section 4-B or Section 7-D shall lie upon him and the assessing authority shall presume the absence of such circumstances.

4. It is evident that under this provision, the burden of proving a fact, which is specially within the knowledge of the assessee is upon the assessee. This presumption applies to a case which is brought within the exception or exemptions mentioned, inter alia, in Section 3-A. The exception mentioned in Section 3-A is that taxes are not leviable except in the hands of the manufacturers or importers. The fact that a dealer in U. P. sells goods, which have not been either manufactured or imported by him, is a fact which is specially within the knowledge of that dealer. Hence, in view of Section 12-A, the burden of proving such fact will lie upon the assessee.

5. In the present case, the fact to be determined was whether the matchboxes sold by the assessee, which were admittedly manufactured outside the State of U. P., were imported by the assessee. This fact being within his special knowledge, the burden of proving it would lie on him. The Judge (Revisions) was, in our opinion, justified in placing the burden of proof upon the assessee. When the assessee did not produce either the purchase vouchers or indicate the particulars of the selling dealers from whom he purchased the match-boxes, it could reasonably be held that he had failed to discharge the burden which lay upon him.

6. The decision in Gupta Homeo Medical Stores case did not consider the effect of Section 12-A. Section 12-A was introduced on the statute book by the amending Act of 1970, which came into force on 13th March, 1970, after the decision of Gupta Homeo Medical Stores case on 22nd May, 1969. Section 6 of the amending Act provides :

After Section 12 of the principal Act, the following section shall be inserted and be deemed always to have been inserted, namely....

7. Thus the introduction of Section 12-A is retrospective which operates with effect from the date of the commencement of the original Act in 1948. Thus this provision will be deemed to have been on the statute book at all material dates.

8. In any event, the assessment order in the present case was passed on 16th November, 1970, that is to say, after Section 12-A had, in fact, come into operation. Section 12-A deals with a procedural matter, viz., the burden of proof for proving certain specified categories of facts. It is settled that such procedural amendments are retrospective in the sense that they apply to proceedings which are pending on the date when they come into force. So, even if this section had not been expressly made retrospective, it would have been applicable to the present cases because here the proceedings were pending before the Sales Tax Officer when the section came into force. In view of this legislative change, the decision in Gupta Homeo Medical Stores case [1969] 24 S.T.C. 415 is not applicable to the present cases.

9. In this view no useful purpose would be served by calling for a statement of the case.

10. In the result, the applications under Section 11(4) of the Act are dismissed, but we make no order as to costs.


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