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The Tata Iron and Steel Co. Ltd. Vs. the State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 450 of 1969
Judge
Reported in35(1969)CLT1027; [1970]25STC171(Orissa)
AppellantThe Tata Iron and Steel Co. Ltd.
RespondentThe State of Orissa and ors.
Appellant AdvocateH. Sen, ;S.C. Sinha and ;S. Ghosh, Advs.
Respondent AdvocateAdv. General
DispositionApplication allowed
Cases Referred and Basta Colla Colliery v. State of Bihar A.I.
Excerpt:
.....no power and jurisdiction under section 24 of the orissa act to declare a particular rule as being ultra vires the act. this rule thus clearly says that the return must be submitted within one calendar month of the expiry of each quarter of the year. section 9(3) of the central act read with section 11(1) of the orissa act and rule 20 of the orissa sales tax rules clearly authorise the fixing of a time limit for the filing of returns. if sufficient explanation is furnished by the assessee as to why they were not filed before the order of assessment was made, it will be open to the appellate court on the facts and circumstances of a particular case, to entertain the declarations if it is satisfied with the explanation so furnished......that question. on 25th april, 1964, the petitioner made an application under section 24(1) of the orissa sales tax act, 1947 (hereinafter referred to as the orissa act). in that application 14 questions were framed. by a supplementary application an additional question was framed. the tribunal did not refer any one of those questions to the high court for its opinion, but referred only a compendious question as follows :whether in the circumstances of the case the tribunal was justified in holding that the petitioner was not entitled to the concessional rate and whether the central sales tax act and the rules made thereunder support the legal finding of the tribunal.aggrieved by this order of the tribunal, the petitioner filed applications before the high court to call for references.....
Judgment:

G.K. Misra, C.J.

1. The petitioner is a company under the Indian Companies Act and carries on business at Gorumahisani in the district of Maynrbhanj in Orissa. It is a registered dealer under the Central Sales Tax Act, 1956 (hereinafter referred to as the Central Act). The assessment relates to sales of ferro-manganese ore by the petitioner for the quarter ending 30th September, 1958, to the quarter ending 31st March, 1959, to various parties outside the State of Orissa in the course of inter-State trade and commerce. The petitioner sold all such goods to registered dealers and such goods were specified in the certificates of registration of such registered dealers as being required for the purpose of resale or use in the course of manufacture of goods. The petitioner claims to have filed declarations in 'C Form before the assessing authorities, before the assessment was made, in support of its claim to be taxed at a concessional rate under the Central Act. The concessional rate as prevailing during the period in question was at 1 per cent. The Sales Tax Officer, Mayurbhanj, in his assessment order dated 29th June, 1961, held that the declarations in Form 'C' were defective and that the petitioner was liable to payment of Central sales tax at the full rate of 5 per cent, and not at the concessional rate of 1 per cent. In appeal, the Assistant Commissioner of Sales Tax by his order dated 30th November, 1962, held that the declaration forms were valid and the petitioner was entitled to pay at the concessional rate. As the petitioner had already paid the tax at the concessional rate of 1 per cent., the Assistant Commissioner reduced the assessment made by the Sales Tax Officer to nil. In appeal against the order of the Assistant Commissioner, the Sales Tax Tribunal in its judgment dated 23rd March, 1964, restored the order of the Sales Tax Officer. The Tribunal was of opinion that the filing of the declaration forms along with the returns was mandatory and if the declaration forms were not filed along with the returns the assessing authorities bad no jurisdiction to condone the delay in the filing of the declaration forms. The Tribunal held that both the Sales Tax Officer and the Assistant Commissioner had ignored the question as to whether the declaration forms were filed in time and that the Tribunal was competent to go into that question. On 25th April, 1964, the petitioner made an application under Section 24(1) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as the Orissa Act). In that application 14 questions were framed. By a supplementary application an additional question was framed. The Tribunal did not refer any one of those questions to the High Court for its opinion, but referred only a compendious question as follows :

Whether in the circumstances of the case the Tribunal was justified in holding that the petitioner was not entitled to the concessional rate and whether the Central Sales Tax Act and the Rules made thereunder support the legal finding of the Tribunal.

Aggrieved by this order of the Tribunal, the petitioner filed applications before the High Court to call for references from the Tribunal relating to the questions framed in the petitioner's application for reference. One of the questions was whether Rule 12(10) of the Central Sales Tax (Orissa) Rules, 1957, as it stood during the relevant period [hereinafter referred to as Rule 12(10)], fixing a time-limit for filing declarations or providing that the same must be filed with the returns is ultra vires and of no effect. S.J.Cs. 86 to 89 and 99 to 102 of 1964 were argued before the Division Bench on 12th May, 1969. in the course of argument the Standing Counsel for the department took up a preliminary objection that the legality and vires of Rule 12(10) are not liable to be questionedunder Section 24 of the Orissa Act, because the assessing authorities including the Tribunal are creatures of statute, and the High Court in exercise of its advisory jurisdiction under Section 24 has -no powers higher than those of the Tribunal. The writ application was accordingly filed for declaring that Rule 12(10) read with Rule 7(1) of the Central Sales Tax (Orissa) Rules, 1957, prescribing a time-limit for filing the declarations at the relevant time is ultra vires the Central Act and the Constitution of India.

2. The aforesaid narrative gives a clear picture why an application under Articles 226 and 227 of the Constitution was filed in the course of the hearing of the reference cases arising out of the appellate order passed by the Sales Tax Tribunal.

3. The points for consideration are :

(i) Whether the High Court has jurisdiction and powerunder Section 24 (1) of the Orissa Act to declare Rule 12(10) of the Central Sales Tax (Orissa) Rules, in so far as it fixes a period of limitation, ultra vires the Central Act and

(ii) Whether, in fact, Rule 12(10) is ultra vires the Central Act.

4. The preliminary objection is that the Tribunal which is a creature of the statute cannot question the vires of the provision under wihch it functions. The contention is sound and is concluded by the decision of the Supreme Court in Venkataraman and Co. v. State of Madras, [1966] 17 S.T.C. 418. The majority of their Lordships held thus :

If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder it functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which is ultra vires, to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil court.

The identical principle applies to a writ application. The power exercised by the High Court under Section 24 of the Orissa Act is advisory. The High Court is competent only to answer such questions as are referred to it, provided they are questions of law arising out of the order. The limitations to which the Tribunal is subject restrict the powers of the High Court. We are therefore clearly of opinion that we have no power and jurisdiction under Section 24 of the Orissa Act to declare a particular rule as being ultra vires the Act. Accordingly the writ application to declare Rule 12(10) of the Central Sales Tax (Orissa) Rules, 1957, ultra vires is maintainable and the question cannot be canvassed in the reference cases under Section 24(1) of the Orissa Act.

5. The next question is whether Rule 12(10) is ultra vires Section 8(4) and Section 13 of the Central Act.

6. Sub-section (1) of Section 8 and Sub-section (4) of Section 8 as they stood in the relevant period run thus :

8. (1) Every dealer, who in the course of inter-State trade or commerce-

(b) sells to a registered dealer other than the Government goods of the description referred to in Sub-section (3) shall be liable to pay tax under this Act which, shall be 1 per cent, of his turnover.

8. (4) The provisions of Sub-section (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner-

(a) a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority.

Thus in order to get the benefit of the concessional rate the selling dealer must file the declaration containing the prescribed particulars.

6. The expression 'in the prescribed manner' in Sub-section (4) came up for consideration in Sales Tax Officer, Ponkunnam v. K. I. Abraham A.I.R. 1967 S.C. 1823. Their Lordships held that this expression 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. The case however does not take in the time element. The rule-making authority is not authorised to prescribe the time limit within which the declaration is to be filed by the registered dealer. On the basis of the aforesaid construction, their Lordships struck down the third proviso to Rule 6 of the Central Sales Tax (Kerala) Rules, 1957. The third proviso ran thus :

Provided also that all declaration forms pending submission by dealers on 2nd May, 1960, shall be submitted not later than 16th February, 1961.

The declarations were in fact submitted later than 16th February, 1961, and the assessing authorities did not allow the concessional rate. The Supreme Court held that the third proviso fixing the time limit is ultra vires Sections 8(4) and 13 of the Central Act. They also made it clear that in the absence of any such time limit it was the duty of the assessee to furnish the declarations in Form 'C within a reasonable time. After this pronouncement of the Supreme Court the question is no longer res integra that 'prescribed manner' would exclude the element of time.

7. The learned Government Advocate, however, contends that the Orissa rule is different from the Kerala rule, and as such the aforesaid decision has no application. Rule 12(10) of the Central Sales Tax (Orissa) Rules, 1957, during the relevant period (by now it has undergone some amendments) stood thus :

12. (10) Every dealer who claims to have made a sale to another registered dealer shall, in respect of such claim, attach to the return the portion marked 'original' of the declaration received by him from the purchasing dealer. The Assessing Authority may in his discretion also direct the selling dealer to produce for inspection the portion of the declaration marked duplicate. He may also in his discretion ask the dealer to produce for inspection copies of the relevant cash receipts or bills in respect of such sales.

The rule ex facie does not prescribe any period of limitation. All that it insists is that the declaration shall be attached to the return. The rule, read by itself, appears to be innocuous.

Rule 7(1) however prescribes a period of limitation for filing returns. The rule, so far as relevant, says :

7. (1) Within one calendar month of the expiry of each quarter of a year, every registered dealer shall furnish to the Assistant Sales Tax Officer or Sales Tax Officer a return in Form I showing particulars in respect of the sales tax payable by him for that quarter on the sales effected by him in the course of inter-State trade or commerce.

This rule thus clearly says that the return must be submitted within one calendar month of the expiry of each quarter of the year. There is no dispute that Rule 7(1) is intra vires. Section 9(3) of the Central Act read with Section 11(1) of the Orissa Act and Rule 20 of the Orissa Sales Tax Rules clearly authorise the fixing of a time limit for the filing of returns.

8. Rule 12(10) of the Central Sales Tax (Orissa) Rules read with Rule 7(1) makes its obligatory on the part of the assessee to file declarations within one calendar month of the expiry of each quarter of the year inasmuch as the declarations are to be attached to the returns. Reading both the rules together, there is no escape from the conclusion that the period of limitation has been prescribed under Rule 12(10) for filing declarations.

9. The learned Government Advocate, however, contends that Rule 12(10) merely prescribes the manner in which declarations are to be filed. The rule in pith and substance does not prescribe a period of limitation for filing declarations. Read along with Rule 7(1) the question of limitation arises only incidentally and on that ground Rule 12(10) cannot be declared ultra vires. In support of this contention he places reliance on Prafulla Kumar v. Bank of Commerce, Khulna, A.I.R. 1947 P.C. 60 The contention is wholly unsound and the Privy Council decision has no application to such a case.

Rule 12(10) makes it imperative that the declarations must be attached to the returns. There being a clear provision in regard to the filing of returns, the same limitation ipso facto applies to the filing of declarations also. This is merely draftsman's art. The period of limitation may be prescribed either in the rule itself or in conjunction with some other rule. The essence of the matter must always be examined. Rule 12(10) read with Rule 7 leads to the irresistible conclusion that the identical period of one calendar month has been prescribed for filing of declarations. This is not incidental but touches the very essence of the matter so far as time element is concerned. We accordingly reject the learned Government Advocate's contention.

Mr. Government Advocate raised a further contention that the Supreme Court in Sales Tax Officer, Ponkunnam v. K. I. Abraham, A.I.R 1967 S.C. 1823 declared the third proviso to Rule 6 of the Kerala Rules ultra vires but did not declare the first and second provisos ultra vires even though the question of limitation was involved therein. There is equally no force in this contention. The validity of only the third proviso with reference to the facts of that case came up for consideration before the Supreme Court. It was therefore not necessary for their Lordships to express any view on the validity of the first and second provisos.

10. Our conclusion is also fully supported by Tirukoilur Oil Mills v. State of Madras, A.I.R 1968 Mad. 311 Gordon Woodroffe & Co. v. State of Madras, [1968] 21 S.T.C. 120 and Basta Colla Colliery v. State of Bihar A.I.R 1969 Pat. 42. On the aforesaid reasoning we hold that Rule 12(10) to the extent it prescribes that the declarations should be attached to the returns is ultra vires Section 8(4) and Section 13. The declarations can be filed within a reasonable time before assessment is made as was held by the Supreme Court. The test of reasonable time cannot be laid down without reference to the facts and circumstances of a particular case. It may so happen in certain cases that declarations might be filed for the first time even at the appellate stage. If sufficient explanation is furnished by the assessee as to why they were not filed before the order of assessment was made, it will be open to the appellate court on the facts and circumstances of a particular case, to entertain the declarations if it is satisfied with the explanation so furnished. No hard and fast rule can therefore be laid down.

11. We would therefore declare Rule 12(10) of the Central Sales Tax (Orissa) Rules, 1957, ultra vires in so far as it insists on attaching the declarations to the returns furnished by the assessee.

12. The next question for consideration is whether we would issue a writ of cerliorari quashing the appellate order of the Tribunal and directing it to rehear the matter. On a careful perusal of its judgment it seems quite clear that the case was disposed of mostly, if not only, on the basis of this rule. All the points of law raised by the assessee in S.J.Cs. 99 to 102 of 1964 were not touched in the judgment as the Tribunal seems to be of opinion that contravention of Rule 12(10) was sufficient to decide the case against the assessee. Unless the case is reheard injustice would work out. We would accordingly quash the appellate order of the Tribunal by a writ of certiorari and issue a writ of mandamus directing the Tribunal to rehear the appeal in the light of the observations made by us and in accordance with law. The writ application is accordingly allowed. In the circumstances parties to bear their own costs.

B.K. Patra, J.

13. I agree.


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