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Commissioner of Sales Tax Vs. Gopaldas Khemji Trading Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Civil Case No. 236 of 1976
Judge
Reported in[1980]46STC60(MP)
AppellantCommissioner of Sales Tax
RespondentGopaldas Khemji Trading Co.
Appellant Advocate K.L. Goyal, Government Adv.
Respondent Advocate C.M. Mehta, Adv.
Cases ReferredAssessing Authority v. Patiala Biscuits Mfrs. P. Ltd.
Excerpt:
.....this act, grant a licence, register the applicant and grant him a certificate of registration in the prescribed form. rule 20 provides that the sales tax officer, if satisfied that a dealer is entitled to a licence or registration certificate under section 6 of the act, shall issue a licence or registration certificate in form vii......authority had erred in not exempting sales worth rs. 2,28,123 made to m/s. kotak & co., a dealer registered under the act. the appellate authority rejected that contention and dismissed the appeal. aggrieved by that order, the assessee preferred a revision application under section 12(2) of the act before the commissioner. that application was also rejected. at the instance of the assessee, the commissioner has referred the aforesaid questions of law for our opinion.3. at the time of hearing of this reference, the learned counsel for the parties conceded that if our answer to the second question was in the affirmative and in favour of the assessee, then it would not be necessary for us to answer the first question in this case. we, therefore, propose to consider at the outset.....
Judgment:

G.G. Sohani, J.

1. By this reference under Section 13(1) of the M. B. Sales Tax Act, Samvat 2007, hereinafter referred to as the Act, the Commissioner of Sales Tax has referred the following questions of law to this Court for its opinion :

(1) Whether the retrospective validation of the registration certificate from 15th August, 1958, affects the rights and liabilities of other dealers from 15th August, 1958, itself (Retrospective validation with effect from 15th August, 1958, has not been withdrawn.)

(2) Whether, on the facts and in the circumstances of the case, the dealer is entitled to claim the deduction in respect of the sales of Rs. 2,28,123 as sales to registered dealer for resale when the sales have been effected to M/s. Kotak & Co., Sarafa, Ujjain, after 25th August, 1958, when the order for registration was passed and before the date of actual issuance of the certificate, i.e., 8th September, 1958 ?

2. The material facts giving rise to this reference briefly are as follows: The assessee is a registered dealer and was carrying on business in cotton at the material time. The period of assessment is from 1st April, 1958, to 31st March, 1959. For that period, tax amounting to Rs. 6,724.24 was assessed by the Additional Assistant Commissioner of Sales Tax, Indore Region, by his order dated 12th February, 1964. Aggrieved by the order of assessment, the assessee filed an appeal before the Deputy Commissioner of Sales Tax, Indore. One of the grounds urged before the appellate authority was that the assessing authority had erred in not exempting sales worth Rs. 2,28,123 made to M/s. Kotak & Co., a dealer registered under the Act. The appellate authority rejected that contention and dismissed the appeal. Aggrieved by that order, the assessee preferred a revision application under Section 12(2) of the Act before the Commissioner. That application was also rejected. At the instance of the assessee, the Commissioner has referred the aforesaid questions of law for our opinion.

3. At the time of hearing of this reference, the learned counsel for the parties conceded that if our answer to the second question was in the affirmative and in favour of the assessee, then it would not be necessary for us to answer the first question in this case. We, therefore, propose to consider at the outset the second question referred to us.

4. Now, the facts which are not disputed are these : The assessee sold cotton to M/s. Kotak & Co. for a sum of Rs. 2,28,123 on 31st August, 1958. On 6th May, 1958, M/s. Kotak & Co. had applied for registration as a dealer under the Act. The order for registration was passed on 25th August, 1958, and the certificate was issued to M/s. Kotak & Co. on 8th September, 1958, bearing an endorsement that the registration was to be effective from 15th August, 1958. It is also not disputed that if on the date when the sale was made M/s. Kotak & Co. was a registered dealer, then the assessee was entitled to claim deduction in respect of that sale. The short question for consideration, therefore, is whether the sale made by the assessee to M/s. Kotak & Co. should be held to be a transaction with a registered dealer.

5. Now, the material provisions of Section 6 of the Act, which deal with licensing and registration of dealers, are as follows:

6. (1) No manufacturer or importer of goods shall, while being liable to tax under this Act, carry on business as a dealer unless he has taken a licence on payment of the prescribed fee and no dealer other than a manufacturer or importer of goods shall, while being liable to tax under this Act, carry on business unless he has been registered as such and obtained a registration certificate on payment of prescribed fee :

Provided that any dealer who at the commencement of this Act is liable to pay tax under this Act shall be deemed not to have contravened the provisions of this sub-section if he applies for a licence or a certificate, as the case may be, before such date as may be prescribed in this behalf.(2) Every dealer required by Sub-section (1) to take a licence or to get himself registered shall make application in that behalf in the prescribed manner to the prescribed authority.

(3) If the said authority is satisfied that an application for licence or for registration is in order, it shall in accordance with such rules as may be made under this Act, grant a licence, register the applicant and grant him a certificate of registration in the prescribed form...

Under the Rules framed under the Act, a dealer has to submit an application in form VI for a licence or registration certificate in accordance with the provisions of Rules 17, 18 and 19 of the Rules. Rule 20 provides that the Sales Tax Officer, if satisfied that a dealer is entitled to a licence or registration certificate under Section 6 of the Act, shall issue a licence or registration certificate in form VII. While considering similar provisions in the Punjab General Sales Tax Act, 1948, the Supreme Court held in Assessing Authority v. Patiala Biscuits Mfrs. P. Ltd. [1977] 39 S.T.C. 381 (S.C.) that a dealer, who had applied for registration under the Punjab General Sales Tax Act, 1948, and to whom registration was granted by the officer with effect from the date of application, must be treated as a registered dealer possessing a registration certificate during the period when his application for registration was pending with the officer. The learned counsel for the department conceded that in view of the aforesaid decision of the Supreme Court it must be held that the sales made to M/s. Kotak & Co. on 31st August, 1958, were sales to a registered dealer.

6. Consequently, our answer to the second question referred to us is, therefore, in the affirmative and in favour of the assessee. As regards the first question, in view of our answer to the second question it is not necessary to answer that question as conceded by the learned counsel for the parties. In the circumstances of the case, parties shall bear their own costs of this reference.


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