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Commissioner, Sales Tax Vs. Bishambhar Dutt Mohan Lal - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. No. 142 of 1978
Judge
Reported in[1979]43STC189(All)
AppellantCommissioner, Sales Tax
RespondentBishambhar Dutt Mohan Lal
Advocates: The Standing Counsel
DispositionPetition dismissed
Excerpt:
- - it would not be safe to ascribe such an anomalous intention to the legislature......wood, etc. it filed its return showing, inter alia, the turnover of the sale of khair wood. in the return filed it calculated the tax on this turnover at the rate of 2 per cent, and admitted a tax liability of rs. 119.64. the account books of the assessee were rejected and estimate made. the rate applied on the sales turnover was three per cent. an appeal was filed by the assessee. the appeal filed by the assessee was partly allowed. the commissioner of sales tax thereafter filed a revision. one of the contentions raised was that the appeal filed by the assessee could not be entertained, as the assessee had not deposited the tax payable under the act on the turnover of sale of khair wood. the second contention was that khair wood was taxable as an unclassified article at the rate of.....
Judgment:

C.S.P. Singh, J.

1. The assessee dealt in timber, firewood, bamboos, khair and kokat wood, etc. It filed its return showing, inter alia, the turnover of the sale of khair wood. In the return filed it calculated the tax on this turnover at the rate of 2 per cent, and admitted a tax liability of Rs. 119.64. The account books of the assessee were rejected and estimate made. The rate applied on the sales turnover was three per cent. An appeal was filed by the assessee. The appeal filed by the assessee was partly allowed. The Commissioner of Sales Tax thereafter filed a revision. One of the contentions raised was that the appeal filed by the assessee could not be entertained, as the assessee had not deposited the tax payable under the Act on the turnover of sale of khair wood. The second contention was that khair wood was taxable as an unclassified article at the rate of three per cent and not at the rate of two per cent as firewood. The revising authority held that as the assessee had admitted the tax on the sale of khair wood at the rate of two per cent and had deposited the same, the appeal was rightly entertained.

2. The contention in this revision is that the assessee should have deposited tax on the sales turnover of khair wood at the rate of three per cent as that was the appropriate rate of tax under the Act. It was urged that as tax calculated at that rate had not been deposited by the assessee at the time of filing of the appeal, the appeal was incompetent. The assessment year involved in this revision is 1970-71. Up to 1st October, 1970, the relevant part of Section 9 was in the following terms :

Provided that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due....

3. This provision was amended with effect from 1st October, 197,0. Thereafter the relevant part ran thus :

Provided that no appeal against an assessment order under this Act shall be entertained unless the appellant has furnished satisfactory proof of the payment of not less than-

(a) where return is filed, the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the return filed by him....

4. Sri V. D. Singh, the standing counsel, stressed that as the amending Act requires the amount of tax or fee due under this Act to be deposited at the time of the filing of the appeal, its reference is to the correct amount of the tax due under the Act, and not the amount wrongly shown by an assessee in his return. This contention can be accepted only in case the words 'admitted by the appellant' occurring in the later part of this sub-clause are read as being confined to the turnover of sales or purchases returned by the dealer. For the reasons set out hereinafter, it is difficult to accept this contention. The words 'admitted by the appellant in the return' occur after reference to both the amount of tax and the turnover of sales has been made and, as such, textually they cannot be confined only to the turnover disclosed in the return filed by the assessee. Further, in the return filed by the assessee which is in form No. IV, the assessee has to show not only the taxable turnover in item 8 of the return, but also the class of goods and the rate of tax on that turnover. Rule 41(2) requires the assessee to deposit the amount of tax calculated by him on the turnover shown in his return before submitting his return. This rule thus really indicates that the calculation of the rate of tax has to be made by the assessee at the first instance. The rate of tax and the turnover shown in the return filed by an assessee amount to an admission by the assessee of the quantum of the turnover and the rate of tax thereon. This being so, it appears that the amount of tax that has to be deposited by the assessee was the amount of tax shown by him in the return. The phrase 'tax or fee due under this Act' occurring in Clause (a) of the proviso read in the context of that sub-clause, has reference to the tax admitted by the dealer to be due from him under the Act. There is another consideration which fortifies this conclusion. The entertainability of the appeal has to be decided by the appellate authority at the time when the appeal comes up initially for consideration. In cases where there is dispute between the dealer and the department as to the correct rate of tax to be applied in respect of the turnover of a particular category of goods, it would become anomalous to require the appellate authority to decide the correct rate of tax at the preliminary stage, when that question is in issue in the appeal itself. A decision by the appellate authority at the preliminary stage on entertainability of the correct rate of tax would lead to the final disposal of appeal and nothing would be left to be disposed of thereafter. It would not be safe to ascribe such an anomalous intention to the legislature.

5. Sri V. D. Singh contended that this view is not consistent with the object of the amending Act. The amendment was effected so as to change the quantum of deposit required of a dealer for filing an appeal. The contention was that while before the amendment the dealer had to deposit only the admitted amount of tax, the amending provision made it incumbent that the correct amount of tax be deposited. It is undoubtedly true that prima facie an amending Act has to be treated as effecting a change in the law as prevailing before it was passed, but this presumption cannot override the express language of the amending statute.

6. There is no dispute that the tax as calculated by the assessee had been deposited in full at the time of the filing of the appeal. This being so, the appeal was rightly entertained.

7. The revision has no force and is dismissed. As no one appeared on behalf of the assessee, there is no order as to costs.


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