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K.S. Nazarali Mills Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 175 of 1970
Judge
Reported in1972MPLJ121; [1973]31STC243(MP)
AppellantK.S. Nazarali Mills
RespondentCommissioner of Sales Tax
Cases Referred(S.C.) and Swastik Oil Mills Ltd. v. H. B. Munshi
Excerpt:
.....but if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in rule 27(2), before being entitled to a deduction. but there is nothing in the act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularity in the proceeding, he cannot make or direct any further enquiry. in our opinion, the revising authority had power to admit and consider additional material, if it found it necessary so to do for effectively exercising its revisional jurisdiction and the commissioner was not right in refusing to accept or consider the certificates in form a,..........and it could not be refused to him only because he had not furnished the monthly returns of such sales in form c or produced the declarations in form a at the time of assessment. we need hardly state that actual production of declarations in form a before the assessing authority is not the only method of establishing that the declarations in writing requisite under the notification no. 4, dated 22nd may, 1950, had been duly obtained. we may, in this connection refer to state of orissa v. tulloch & co. ltd. [1964] 15 s.t.c. 641 (s.c.).5. the answer to the second question is plain. the manufacturing dealer is not entitled to any exemption unless he complies strictly with the requirements of the notification no. 4, dated 22nd may, 1950. but, as we have already shown, such strict.....
Judgment:

K.L. Pandey, J.

1. At the instance of the assessee, the Commissioner of Sales Tax, Madhya Pradesh, has, acting under Section 13(1) of the Madhya Bharat Sales Tax Act, 1950, which would hereinafter be called the Act, referred to this court for its opinion the following questions of law :

(a) Whether the exemption which has to be granted to a manufacturer of cloth on the sales of cloth made by him to a registered dealer in accordance with the provisions of para 2 of the Government of Madhya Bharat Notification No. 4, dated the 22nd May, 1950, can be refused if the dealer does not file before the assessing authority the statement in form (sic) prescribed by the Commissioner of Sales Tax, Madhya Bharat, in his Notification No. 1, dated 14th October, 1950, within the time mentioned in that notification and he does not produce at the time of assessment the declarations in form (sic) prescribed by the same notifications?

(b) Whether the exemption under para 2 of the Government notification referred to in the first question can be granted to a dealer if he does not strictly comply with the requirements of the notification issued by the Commissioner of Sales Tax, Madhya Bharat, under Notification No. 1 dated 14th October, 1950 and whether such exemption can be granted if the dealer adduces some other kind of evidence to prove that he has complied with the provisions of para 2 of the Government notification referred to above.

(c) Whether on the facts and in the circumstances of the case, the Commissioner of Sales Tax was right in refusing to consider the declarations in form (sic) that were filed before him during the course of revision proceedings ?

2. The material facts as found by the Commissioner, which were for the most part not in dispute, are fully disclosed in the reference. In order to appreciate the questions of law referred to us, we may shortly state some of those facts. Under Section 4(3) of the Act, it was competent to the State Government to exempt by a notification, any goods or class of goods from payment of sales tax 'on such conditions as may be specified in the notification'. The relevant notification exempting sales of certain cloth and hosiery from tax was issued on 22nd May, 1950. It reads:

No. 4. Dated 22nd May, 1950.

In exercise of the powers under Sub-section (3) of Section 4 of the Madhya Bharat Sales Tax Act, No. 30 of 1950 (Samvat 2007), the Raj Pramukh has been pleased to exempt the following goods from sales tax :

* * *(2) Cotton cloth and hosiery sold by a manufacturer or importer to a registered dealer against a written declaration that such goods are being purchased for export ex State provided that the goods purchased are exported within the period of (a) nine months from the date of sales in the case of cotton blankets and daris and (b) seven months from the date of sale in the case of other goods.

Under Section 52 of the Act, the Commissioner was empowered to prescribe certain returns and forms for goods or class of goods exempted from tax under Section 4(3) of the Act. Such forms and returns had been duly prescribed. For the registered dealer, who purchased for export cloth from the manufacturer, returns in form KH were required to be furnished every month. Moreover, for every purchase made for the purpose, he was required to give a declaration in form A to the manufacturing seller, who was also required to furnish monthly returns of all such transactions in form C.

3. In this case, the dealer, which was a manufacturing seller, was assessed to sales tax for the year 1952-53. It had claimed deduction on account of the exemption granted under Section 4(3) of the Act to the extent of Rs. 27,84,979-2-9. This was rejected by the Sales Tax Officer, Ujjain, for reasons that would appear from paragraph 6 of the reference:

In the assessment case of this dealer for the year 1952-53, the dealer had not filed any statement in form (sic) (i.e., the particulars of sales made against declarations to other registered dealers) to the assessing authority. During the course of assessment, he was issued a notice by the assessing authority requiring him to produce these statements in form (sic) for each month. On 19th August, 1954, the dealer's representative, Nazarali, who is described by the assessing authority in the order sheet dated 28th July, 1953, as being the son of the proprietor, appeared before him and stated that the applicant-dealer had not obtained declarations in form (sic) at the time of selling the goods. He further stated that certain declarations have been obtained and some more remained to be obtained. The assessment proceedings continued on some more dates, namely, 25th August, 1954, 27th August, 1954, 30th August, 1954 and ultimately the case was closed for orders on 31st August, 1954. The assessing authority passed the assessment order on 29th November, 1954. In this order, he came to the conclusion that the dealer had not obtained declarations in form (sic) from the purchasing registered dealers and that he also did not furnish any of the declarations in form (sic) before him. Therefore, he held that the dealer was liable to pay tax on the sales of cloth made to the registered dealers. The claim for a deduction of Rs. 27,84,979-2-9 under para 2 of the Government notification was thus rejected.

The declarations in form A, which were produced before the Sales Tax Officer on 31st August, 1954, were rejected by that officer before he passed the order of assessment on 29th November, 1954. Being aggrieved, the assessee moved the Commissioner of Sales Tax in revision and prayed that the declarations in form A, which it had tendered earlier before the assessing authority, be accepted. The Commissioner rejected that request on the view that it was neither possible nor appropriate to permit production of additional evidence at the stage of revision. Thereupon, at the instance of the assessee, this reference was made.

4. In regard to the first question of law, it is clear from the notification issued under Section 4(3) of the Act that the exemption was granted subject to two conditions:

(i) Sale was made to a registered dealer against a written declaration made by him that he purchased the goods for export to a place outside the State and

(ii) he so exported the goods within the time specified in the notification.

There was no other condition, the fulfilment of which was required for claiming exemption either under the notification or under the enactment providing for grant of such exemption. It was, however, argued that the returns and forms were required to be prescribed by Section 52 of the Act for carrying out the purpose of Section 4(3) thereof and had to be strictly complied with. In our opinion, this would amount to adding one more condition to the grant of exemption and is, for this reason, not permissible. So, in a somewhat like case, the Supreme Court observed in State of Orissa v. Tulloch & Co. Ltd. [1954] 15 S.T.C. 641 at 643-644 (S.C.), as follows:

It is plain from the terms of Section 5(2)(a)(ii) that a selling dealer is entitled to a deduction in respect of sales to a registered dealer of goods, if the goods are specified in the purchasing dealer's certificate of registration as being intended for resale by him in Orissa. No other condition is imposed by the above section. The proviso deals with consequences that follow if the purchasing dealer uses them for purposes other than those specified in his certificate of registration and directs that, in that event, the price of goods so utilised shall be included in his turnover. Therefore, there is nothing in the section itself that disentitles a selling dealer to a deduction, but if the contingency provided in the proviso occurs, then the price of goods is included in the taxable turnover of the buying dealer. But Mr. Ganapathy Iyer says, be it so, but the rule-making authority is entitled to make rules for carrying out the purposes of the Act and Rule 27(2) is designed to ensure that a buying dealer's certificate of registration does, in fact, mention that the goods are intended for resale by him and for that purpose it has chosen one exclusive method of proving the fact before a Sales Tax Officer. He further urges that no other method of proving that fact is permissible. Rule 27(2) is mandatory arid if there is breach of it the selling dealer is not entitled to deduction. The learned counsel for the respondent, on the other hand, contends that Rule 27(2) is directory. He points out that the word 'shall' should be read as 'may' in the context. He further says that supposing the selling dealer brought the original certificate of registration of a buying dealer and produced it before the Sales Tax Officer according to the appellant, this would not be enough, but this could never have been intended. In our opinion, Rule 27(2) must be reconciled with the section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales Tax Officer to be satisfied that, in fact, the certificate of registration of the buying dealer contains the requisite statement and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in Rule 27(2), before being entitled to a deduction.

Our attention has, however, been drawn to Chopra and Co. v. Additional Commissioner of Sales Tax [1967] 19 S.T.C. 46 and Commissioner of Sales Tax v. B. P. Dixit [1970] 19 Revenue Nirnaya 242 for the contrary view. There the question turned upon interpretation of Section 8(4) of the Central Sales Tax Act, 1956, which provided that the declaration had to be furnished 'to the prescribed authority.' It was held that the declaration had to be produced before the taxing authority and that too before the assessment. These cases are easily distinguishable because, unlike the case before us, the requirement for such production is in wrought in the relevant statute itself. In our opinion, once the manufacturing dealer claiming exemption under the Notification No. 4, dated 22nd May, 1950, established that the conditions on which the exemption had been granted were duly fulfilled, he became entitled to the benefit of that exemption and it could not be refused to him only because he had not furnished the monthly returns of such sales in form C or produced the declarations in form A at the time of assessment. We need hardly state that actual production of declarations in form A before the assessing authority is not the only method of establishing that the declarations in writing requisite under the Notification No. 4, dated 22nd May, 1950, had been duly obtained. We may, in this connection refer to State of Orissa v. Tulloch & Co. Ltd. [1964] 15 S.T.C. 641 (S.C.).

5. The answer to the second question is plain. The manufacturing dealer is not entitled to any exemption unless he complies strictly with the requirements of the Notification No. 4, dated 22nd May, 1950. But, as we have already shown, such strict compliance did not include furnishing of monthly returns in form C or production of the declarations in form A before the assessing authority. It follows that it was open to such dealer to establish fulfilment of the conditions required by the notification by other evidence.

6. The third question raises the point whether the Commissioner of Sales Tax was justified in refusing to consider the declarations in form A which had been produced in the course of revision proceedings. The point appears to have been raised on the assumption that in view of the requirements of the rules made under Section 52 of the Act, production of form A along with the return was obligatory for the purpose of claiming exemption. We have shown that this was not so. When that aspect of the matter is out of the way, the precise question is whether evidence in proof of any fact could be accepted at a late stage if produced before the assessing authority, or before the appellate authority or before the revising authority. Commissioner of Sales Tax v. Sardar House (1969) J.L.J. 60 is an authority of this court for the view that such certificates can be admitted in appeal. National Traders (India) v. Additional Commissioner of Sales Tax [1968] 22 S.T.C 86 is another authority of this court for the view that such certificates can be accepted in revision. That is also the view of the Supreme Court in State of Kerala v. Cheria Abdulla and Co. [1965] 16 S.T.C. 875 (S.C.) and Swastik Oil Mills Ltd. v. H. B. Munshi [1968] 21 S.T.C. 383 (S.C.). In the last-mentioned case, the Supreme Court recalled the following observations it had made in the earlier case :

There is no doubt that the revising authority may only call for the record of the order or the proceeding and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding. But there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularity in the proceeding, he cannot make or direct any further enquiry. It is, therefore, not right baldly to propound that, in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must, in all cases, be restricted to the record maintained by the officer subordinate to him and can never make enquiry outside that record.

In our opinion, the revising authority had power to admit and consider additional material, if it found it necessary so to do for effectively exercising its revisional jurisdiction and the Commissioner was not right in refusing to accept or consider the certificates in form A, which had been produced earlier before the assessing authority and rejected by it on account of delay, on the view that it was not possible or appropriate to permit production of additional evidence at the stage of revision.

7. In the result, we answer the first question in the negative, first part of the second question in the negative and the second part of that question in the affirmative. We would answer the third question also in the affirmative.

8. In the circumstances of the case, we leave the parties to bear their own costs of this reference.


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