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Kedarmal Sarda and ors. Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Petition No. 248 of 1982
Judge
Reported in[1985]58STC58(MP)
AppellantKedarmal Sarda and ors.
RespondentSales Tax Officer and ors.
Appellant Advocate G.M. Chaphekar, Adv.
Respondent Advocate S. Kulshreshtha, Government Adv.
DispositionPetition dismissed
Excerpt:
.....certificate to the petitioners on account of failure of respondent no. -(1) if, on an application of any dealer, the commissioner is satisfied that his turnover is likely to exceed the limits specified in sub-section (5) of section 4, the commissioner may, notwithstanding that the dealer may not be liable to pay tax under section 4, register the dealer and grant him a certificate of registration in the prescribed manner not later than ninety days from the date of receipt of the application and thereupon the provisions of section 15 shall apply to such dealer as they apply in the case of a dealer registered under that section :provided that where the commissioner is not so satisfied, he shall reject the application within ninety days from the date of receipt of the application..........act. the petitioners have further averred that instead of issuing a certificate of registration, a notice dated 16th april, 1982, purporting to have been issued under section 45(1) of the act calling upon the petitioners to show cause within 3 days from the date of the receipt of the notice as to why an order for cancellation of registration should not be passed, was received by the petitioners. the petitioners have, therefore, filed this petition for the issuance of a writ for quashing the notice dated 16th april, 1982, and for directing respondent no. 1 to issue the registration certificate under the act.3. in the return filed on behalf of the respondents, the fact that the petitioners had submitted an application on 4th december, 1981, under section 16 of the act for registration as a.....
Judgment:
ORDER

G.G. Sohani, J.

1. This is a petition under Article 226 of the Constitution of India.

2. The material facts giving rise to this petition briefly are as follows : The petitioners have averred that they have entered into a partnership firm carrying on business of manufacturing rubber matting and foam products in the name and style of M/s. Relief Foam; that in the course of their business, the petitioners import latex rubber, which is the raw material for their manufacture and the value of these imports comes to Rs. 1,000 in a year and that as the turnover of the petitioners from the sale of manufactured goods was likely to exceed the limit of Rs. 10,000 specified in Sub-section (5) of Section 4 of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as the Act), the petitioners submitted an application to respondent No. 1, the Sales Tax Officer, Circle VIII, under Section 16 of the Act for their registration as a dealer under the Act. Along with that application, the petitioners also filed a separate application for registration as a dealer under Section 7(2) of the Central Sales Tax Act, 1956. The petitioners have further averred that though respondent No. 1 had passed an order on 3rd February, 1982, granting registration as prayed for by the petitioners, yet no certificate of registration was, however, issued to the petitioners. The petitioners contend that by virtue of the provisions of the second proviso to Section 16(1) of the Act, as the application submitted by the petitioners for registration was not rejected by respondent No. 1 within 90 days from the date of application, respondent No. 1 was bound to issue a certificate of registration under the Act. The petitioners have further averred that instead of issuing a certificate of registration, a notice dated 16th April, 1982, purporting to have been issued under Section 45(1) of the Act calling upon the petitioners to show cause within 3 days from the date of the receipt of the notice as to why an order for cancellation of registration should not be passed, was received by the petitioners. The petitioners have, therefore, filed this petition for the issuance of a writ for quashing the notice dated 16th April, 1982, and for directing respondent No. 1 to issue the registration certificate under the Act.

3. In the return filed on behalf of the respondents, the fact that the petitioners had submitted an application on 4th December, 1981, under Section 16 of the Act for registration as a dealer, is admitted. It is also admitted that registration certificate was not issued to the petitioners within 90 days from the date of application and that a show cause notice was issued to the petitioners on 16th April, 1982. It is, however, contended that the show cause notice was issued to the petitioners for rectification of a mistake committed by respondent No. 1 in passing an order for registration. The respondents have, therefore, contended that the notice dated 16th April, 1982, was proper.

4. Shri Chaphekar, the learned counsel for the petitioners, contended that respondent No. 1 was bound to issue registration certificate because within the period of 90 days from the date of making an application in that behalf, the application was not rejected by respondent No. 1. It was further contended that the show cause notice dated 16th April, 1982, deserved to be quashed because it was not a case of rectification of any mistake. In reply, Shri Kulshreshtha, learned Deputy Government Advocate, stated that the show cause notice, which was issued to the petitioners wrongly referred to the provisions of Section 45 of the Act when in point of fact, it was issued in exercise of the powers conferred by Section 15(10) of the Act for cancellation of the registration. It was, therefore, contended that the notice was proper and no case was made out for quashing that notice.

5. The first question that arises for consideration is whether respondent No. 1 can be directed to issue the registration certificate to the petitioners on account of failure of respondent No. 1 to reject the application within a period of 90 days. Section 16 of the Act reads as under :

16. Voluntary registration of dealers.-(1) If, on an application of any dealer, the Commissioner is satisfied that his turnover is likely to exceed the limits specified in Sub-section (5) of Section 4, the Commissioner may, notwithstanding that the dealer may not be liable to pay tax under Section 4, register the dealer and grant him a certificate of registration in the prescribed manner not later than ninety days from the date of receipt of the application and thereupon the provisions of Section 15 shall apply to such dealer as they apply in the case of a dealer registered under that section :

Provided that where the Commissioner is not so satisfied, he shall reject the application within ninety days from the date of receipt of the application :

Provided further that if the certificate of registration is not granted or the application is not rejected within that aforesaid period of ninety days, the applicant shall, on the expiration of the said period be entitled to a certificate of registration in accordance with his application and the said authority shall issue a certificate of registration accordingly.

The aforesaid provision makes it clear that in case the application for registration submitted by a person is not rejected within a period of 90 days from the date of receipt of that application, the applicant is entitled to a certificate of registration. Respondent No. 1 was, therefore, bound to issue a certificate of registration to the petitioners. As regards notice dated 16th April, 1982, issued by respondent No. 1 to the petitioners to show cause why registration should not be cancelled, we do not express any opinion on the question as to whether the registration could or could not be cancelled in the circumstances of the case. The petitioners should raise all the contentions they want to urge in reply to the show cause notice before the authorities concerned.

6. For all these reasons, this petition is partly allowed. The respondents are directed to issue a certificate of registration to the petitioners under the M. P. General Sales Tax Act, 1958. The show cause notice dated 16th April, 1982 (annexure R-1), issued to the petitioners, is, however, not quashed but the petitioners are granted three days' time from the date of receipt of the certificate of registration, to prefer their objections in reply to the show cause notice and respondent No. 1 shall consider and decide those objections in accordance with law. The other reliefs claimed in the petition are rejected. Parties shall bear their own costs of this petition. The security amount, if any, shall be refunded to the petitioners.


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