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Kirloskar Brothers Ltd. Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 637 of 1968
Judge
Reported in[1971]27STC450(Orissa)
AppellantKirloskar Brothers Ltd.
RespondentSales Tax Officer and ors.
Appellant AdvocateB.K. Mohanty, Adv.
Respondent AdvocateStanding Counsel
DispositionApplication allowed
Cases ReferredState of Madras v. R. Nand Lal
Excerpt:
.....not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not..........that the central government have prescribed form 'c.section 13 (3) and (4) confers power on the state government to make rules. sub-section (3) enacts that the state government may make rules, not inconsistent with the provisions of this act and the rules made under subsection (1), to carry out the purposes of this act. sub-section (4) confers power on the state government to make rules in respect of different matters without any prejudice to the generality of the powers conferred by subsection (3). section 13(4)(e) empowers the state government to make rules regarding the authority from whom, the conditions subject to which and the fees subject to the payment of which any form of declaration prescribed under sub-section (4) of section 8 may be obtained, the manner in which the form.....
Judgment:

G.K. Misra, C.J.

1. The petitioner is a public limited company carrying on business in the manufacture and sale of mechanical equipments and other materials. It is a registered dealer under the Orissa Sales Tax Act and the Central Sales Tax (Registration and Turnover) Rules. For the period 30th June, 1963, to 31st March, 1964, the petitioner submitted returns under the Central Sales Tax Act and submitted 'C' forms from the purchasing dealers outside the State of Orissa in support of its claim for concessional rate of tax. Rule 6(a)(ii) of the Central Sales Tax (Orissa) Rules, 1957, prior to its amendment on 20th February, 1964, so far as relevant, stood thus:

Before furnishing the declaration to the selling dealer the purchasing dealer, or a person authorised by him in this behalf, shall fill in all required particulars in the form, and Shall also affix his usual signature in the space provided in the foriri for this purpose.

After amendment, the aforesaid rule stands thus:

Before furnishing the declaration to the selling dealer the purchasing dealer, or a person authorised by him in this behalf, shall fill in all required particulars in the form, and affix his usual signature in the space provided in the form for this purpose and also at the bottom of the last entry of the bill or cash memo.

It will thus be seen that after the amendment the clause added is to the effect that the purchasing dealer shall affix his usual signature also at the bottom of the last entry of the bill or cash memo. The sales tax authorities have consistently taken the view that after the amendment a second signature is to be affixed by the purchasing dealer under the entry ''particulars of bill/cash memo.' There is no controversy before us that the amended provision applies to the 'C' form. The sales tax authorities were of opinion that the 'C' forms filed by the petitioner containing one signature were not acceptable as they were in contravention of the aforesaid amended rule. The Assistant Commissioner of Sales Tax accordingly remanded the case to give an opportunity to the dealer to get the signature of the purchasing dealers again in the 'C' forms under the entry 'particulars of bill/cash memo.' He also expressed the view that being an authority under the statute he had no jurisdiction to question the vires of the rule which was challenged before him. Without taking the matter to the Tribunal in second appeal, the petitioner has filed this writ application under Articles 226 and 227 of the Constitution.

2. Mr. B.K. Mohanty for the petitioner contended that the amended rule insisting upon a further particular to be complied with in form 'C' by the purchasing dealer by way of affixing his signature is in contravention of Section 13(3) and Section 13(4)(e) of the Central Sales Tax Act (hereinafter referred to as the Act). He further contended that the Orissa rule is not binding on the purchasing dealers of other States who in the course of inter-State trade purchase from the dealers in Orissa, and as such form 'C' procured from the purchasing dealers of outside States cannot be questioned in Orissa for non-compliance of the impugned rule. Both the contentions require careful examination.

3. Section 13(1)(d) of the Act lays down that the Central Government may, by notification in the Official Gazette, make rules providing for the form in which and the particulars to be contained in any declaration or certificate to be given under this Act. It is under this provision that the Central Government have prescribed form 'C.

Section 13 (3) and (4) confers power on the State Government to make rules. Sub-section (3) enacts that the State Government may make rules, not inconsistent with the provisions of this Act and the Rules made under Subsection (1), to carry out the purposes of this Act. Sub-section (4) confers power on the State Government to make rules in respect of different matters without any prejudice to the generality of the powers conferred by Subsection (3). Section 13(4)(e) empowers the State Government to make rules regarding the authority from whom, the conditions subject to which and the fees subject to the payment of which any form of declaration prescribed under Sub-section (4) of Section 8 may be obtained, the manner in which the form shall be kept in custody and records relating thereto maintained, the manner in which any such form may be used and any such declaration may be furnished.

It was vehemently contended by Mr. Mohanty that the expression in Section 13(4)(e) to the effect 'the manner in which any such form may be used and any such declaration may be furnished' would not cover any case whereby the State Government would have authority to frame rules for introducing any further particulars in form 'C'. This contention is directly negatived by the decision of the Supreme Court in Sales Tax Officer, Ponkunnam, and Anr. v. K.I. Abraham [1967] 20 S.T.C. 367 (S.C.). At page 372, their Lordships observed thus:

In our opinion, the phrase 'in the prescribed manner' occurring in Section 8(4) of the Act only confers power on the rule-making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of the goods sold, the parties to whom they are sold, and to which authority the form is to be furnished.

This passage leaves no room for doubt that further particulars in the prescribed form can be introduced by the State Government under their rule-making power. This is, however, subject to the restriction prescribed in Section 13(3), namely, that there would be no inconsistency between the forms already prescribed by the Central Government in form 'C' and the further particulars to be introduced by the State Government under their rule-making power.

By the impugned rule all that the State Government want is that in form 'C' a second signature is to be appended below the entry 'particulars of bill/cash memo'. This further particular by way of an additional signature introduces no inconsistency into the particulars already prescribed in form 'C' It does not hit Section 13(3). We accordingly reject the first contention of Mr. Mohanty that the impugned rule is ultra vires Section 13(3) or Section 13(4)(e).

4. The second contention of Mr. Mohanty is that the impugned Orissa rule could not bind outside purchasers in their purchases in the course of inter-State trade inasmuch as they are to be governed by the rules prescribed in the respective States as framed by the State Governments. It is not contended before us that in respect of the 'C' forms filed by the petitioner from outside purchasers there is any rule corresponding to the impugned rule. It follows that the purchasing dealers of the outside States are not to affix a second signature under their rules. The 'C' forms issued by them are in conformity with the provisions laid down in the Central Sales Tax (Registration and Turnover) Rules. The 'C' forms were valid and if such 'C' forms are produced before the authorities in Orissa in support of their claim for concessional rate of tax they should not be rejected. This contention is fully supported by the decision of the Supreme Court in State of Madras v. R. Nand Lal & Co.1

5. As a result of the aforesaid analysis we hold that the impugned rule is not ultra vires but it is not binding on outside purchasers in filling up the 'C' forms issued by them in respect of their purchases from dealers in Orissa. The 'C' forms as filed in this case were valid and the sales tax authorities acted beyond their jurisdiction in rejecting them as not being in conformity with the impugned rule.

6. In the result, the writ application succeeds. We issue a writ of certiorari quashing the orders of the Sales Tax Officer and the Assistant Commissioner of Sales Tax, and a writ of mandamus directing them to accept the 'C' forms filed before them as valid in law, and to proceed with the assessment accordingly. In the circumstances there will be no order as to costs.

S. Acharya, J.

I agree.


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