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Shivaratan Inderchand Munda Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberO.J.C. 19 of 1968
Judge
Reported in37(1971)CLT212; [1971]28STC211(Orissa)
ActsOrissa Sales Tax Act, 1947 - Sections 29(2); Orissa Sales Tax Rules, 1947 - Rule 42A
AppellantShivaratan Inderchand Munda
RespondentCommissioner of Sales Tax
Appellant AdvocateS.C. Roy, Adv.
Respondent AdvocateS.C. Mohapatra, Standing Counsel, S.T.
DispositionApplication dismissed
Cases Referred(Thirumurthy Chettiar v. State of Madras
Excerpt:
.....173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - (4) on receipt of the statement in form xii-a the assistant sales tax officer, or the sales tax officer as the case may be, shall, if he is satisfied after such scrutiny of the accounts and after such enquiry as he considers necessary that the claim is admissible, pass an order refunding the tax subject to the provisions under rule 42. (5) (i) in case where an order is passed for refund in cash a refund payment order shall be issued in form xiii-a and made over to the..........petitioner did not pay purchase tax on hemp inasmuch as it was a commodity not taxable under the orissa sales tax act. the petitioner was, however, assessed to tax by the sales tax officer, berhampur. his appeal against the levy of purchase tax on hemp was dismissed by the assistant commissioner, with an observation that if purchase tax had been paid under the central sales tax act he was entitled to get a refund of the tax paid under the orissa sales tax act.the petitioner filed an application for refund of the sales tax, but as the same was filed beyond 12 months of the payment of the central sales tax, the sales tax authorities held that the application was barred by limitation. the writ application has been filed under articles 226 and 227 of the constitution, alleging that rule.....
Judgment:

G.K. Misra, C.J.

1. The petitioner Is a registered dealer both under the Orissa Sales Tax Act and the Central Sales Tax Act. His business consists in purchase of jute and hemp and his place of business is Berhampur. The petitioner purchases jute from cultivators and exports them to places outside Orissa. Jute and hemp are declared commodities under Section 14 of the Central Sales Tax Act The petitioner did not pay purchase tax on hemp inasmuch as it was a commodity not taxable under the Orissa Sales Tax Act. The petitioner was, however, assessed to tax by the Sales Tax Officer, Berhampur. His appeal against the levy of purchase tax on hemp was dismissed by the Assistant Commissioner, with an observation that if purchase tax had been paid under the Central Sales Tax Act he was entitled to get a refund of the tax paid under the Orissa Sales Tax Act.

The petitioner filed an application for refund of the Sales Tax, but as the same was filed beyond 12 months of the payment of the Central Sales Tax, the sales tax authorities held that the application was barred by limitation. The writ application has been filed under Articles 226 and 227 of the Constitution, alleging that Rule 42-A prescribing a period of limitation is ultra vires.

2. To appreciate this contention If is necessary to examine the provisions of Section 15(b) of the Central Sales Tax Act, Section 14B of the Orissa Sales Tax Act, and Rule 42-A of the Orissa Sales Tax Rules.

Section 15(b) of the Central Sales Tax Act, 1956.

'15. Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of, a tax on the sale or purchase of declared goods be subject to the following restrictions and conditions, namely:-- * * * (b) Where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State.'

Section 14-B of the Orissa Sales Tax Act, 1947.

'14-B. Refund in case of inter-State trade or commerce:-- The Commissioner may refund to such person, in such manner and subject to such conditions as may be prescribed, any amount of tax levied on sales or purchases of goods which are declared under Section 14 of the Central Sales Tax Act, 74 of 1956, when suchgoods are subsequently sold in the course of inter-State trade or commerce.'

Rule 42-A of the Orissa Sales Tax Rules, 1947.

'42-A. Refund of tax in certain cases: (1) The tax levied and realised under Section 5 in respect of sale or purchase inside the State of any goods which are declared under Section 14 of the Central Sales Tax Act, 1956 (74 of 1956) shall, if such goods are sold in the course of inter-State trade or commerce be refunded in the manner and subject to the conditions prescribed in this rule to the dealer who has made the inter-State sale and has paid tax under the aforesaid Act in respect of such sale.

(2) Every such dealer who claims refund under this rule, shall, within twelve months from the date on which the tax was paid on the sale of such goods in course of inter-State trade or commerce, submit to the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be a statement in Form XII-A.

(3) The burden of proving the claim preferred shall be on the dealer.

(4) On receipt of the statement in form XII-A the Assistant Sales Tax Officer, or the Sales Tax Officer as the case may be, shall, if he is satisfied after such scrutiny of the accounts and after such enquiry as he considers necessary that the claim is admissible, pass an order refunding the tax subject to the provisions under Rule 42.

(5) (i) In case where an order is passed for refund in cash a Refund Payment Order shall be issued in Form XIII-A and made over to the dealer for encashment at the Government Treasury. A copy of the Refund Payment Order shall also be forwarded simultaneously to the Treasury Officer concerned.

(ii) In case where an order is passed for refund by adjustment, a Refund Adjustment Order in Form XIV-A accompanied by a chalan for adjustment shall be issued.

(6) If the statement submitted is found to be incorrect, incomplete or otherwise not in order, the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be, after making such enquiry as he considers necessary and after giving the dealer an opportunity of being heard, pass such orders thereon, as he thinks fit.'

3. It would appear both from Section 15(b) of the Central Sales Tax Act and Section 14-B of the Orissa Sales Tax Act that refund would be granted 'in such manner and subject to such conditions' as may be prescribed.

In 20 STC 367 = (AIR 1967 SC 1823) (Sales Tax Officer, Ponkunnam v. K.I. Abraham) it was held that the prescribed manner would not take within its ambit the question of limitation. The word'manner' refers to the mode and form in which the application is to be made. An identical argument was advanced by Mr. Roy with reference to the expression 'such conditions' occurring in both the Sections. We are however unable to accept this argument. The word 'condition' is a word of wide import and would include within its ambit any rule prescribing a period of limitation within which the application is to be made. Under Section 29(2) (nn) the State Government has been invested with powers to make rules to carry out the purposes of the Sales Tax Act and in particular, without prejudice to the generality of the powers under Sub-section (1), it may prescribe the person to whom, the manner in which and the conditions subject to which refund under Section 14-B may be made. It is in exercise of this power that Rule 42-A has been made. That rule lays down in clearest terms that the period of limitation shall be 12 months from the date on which the tax was paid on the sale of such goods in the course of inter-State trade and commerce. As we are of opinion that the conditions prescribed would take within their sweep the question of limitation also, the impugned Rule is not ultra vires the Orissa Sales Tax Act. On the statement made by Mr. Roy that the application for refund was made beyond the period of 12 months, it is barred by limitation.

4. Reliance was placed by Mr. Roy on 21 STC 489 = [AIR 1969 Mad 91) (Thirumurthy Chettiar v. State of Madras), a single Judge decision of the Madras High Court -- where on similar language, a different view was taken. For reasons already discussed we are unable to accept the Madras view as laying down correct law.

5. The application has no merit and is dismissed, but in the circumstances there will be no order as to costs.

Acharya, J.

6. I agree.


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