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T.P. Variath Vs. the Board of Revenue and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case Number O.P. No. 190 of 1954
Judge
Reported in[1956]7STC12(Ker)
AppellantT.P. Variath
RespondentThe Board of Revenue and anr.
Appellant Advocate P.K. Krishnankutty Menon, Adv.
Respondent Advocate V. Rama Shenai, The Government Pleader
DispositionPetition dismissed
Excerpt:
.....has failed before the board of revenue. ' here the term 'such manufacturer' clearly and unambiguously indicates the person who has already obtained a manufacturer's certificate in cocoanut oil and cake. but when the advocate himself points out the absence of any provision to condone the delay in making the application, if he wants to enjoy the benefit of the deduction under rule 22 (2) he has but to apply for and take out the registration certificate from the very beginning. in view of this it is unnecessary for us to record whether if the provisions were identical we would have endorsed the decision of the madras high court. 11. in the light of what is stated above this petition must fail and is hereby dismissed, but in the circumstances of the case without any order as to costs......to deduct from his gross turnover under rule 22 subject to the conditions specified in that rule.rule 22 [omitting the explanation to sub-rule (2)] reads as follows : (1) any dealer who manufactures cocoanut/groundnut oil and cake from cocoanut and/or copra or groundnut and/or kernel purchased by him may on application to the assessing authority having jurisdiction over the area in which he carried on his business, be registered as a manufacturer of cocoanut/groundnut oil and cake.(2) every such manufacturer shall be entitled to a deduction under clause (k) of sub-rule (1) of rule 7 equal to the value of the cocoanut and/or copra or groundnut and/or kernel purchased and converted by him into oil and cake provided that the amount for which the oil is sold is included in his.....
Judgment:

M.S. Menon, J.

1. The petitioner, a dealer who manufactures cocoa-nut oil and cake, was denied the deduction under Section 7(1) (k) of the Travancore General Sales Tax (Turnover and Assessment) Rules, 1924, in respect of the first three months of 1125 (17th August, 1949-15th November, 1949) on the ground that he was not a registered manufacturer during that period. By this petition he challenged the validity of that denial.

2. Exhibit I dated 15th November, 1949, is the application filed by the petitioner to the Assistant Sales Tax Commissioner, Parur, for obtaining registration under Rule 22: -

As per Travancore General Sales Tax Act, 1124, Rule 22(1), I, Porunchu Variath, Proprietor, St. Joseph's Electrical Oil Mills, Parur, pray that I may be registered as a manufacturer of cocoanut oil and cake for this area for 1125, at your earliest convenience' and Exhibit II dated 31st March, 1950, the certificate granted to him :Certified that Sri Porunchu Variath, Proprietor, St. Joseph's Electrical Oil Mills, Parur, has been registered as manufacturer of cocoanut oil and cake under Rule 22(1) of the Travancore General Sales Tax (Turnover and Assessment) Rules. This certificate will be valid from 17th November, 1949, (the date of receipt of his application).

3. The relevant portion of Exhibit A, the order of the Sales Tax Officer, Parur, dated 22nd October, 1953, reads as follows:-

The dealer applied for registration as a manufacturer of cocoanut oil only on 17th November, 1949, and the Assistant Commissioner of Sales Tax, Alwaye, has registered him as such and issued a certificate on 31st March, 1950, (copy of which is kept in the file) specifically stating that the certificate would be valid only from 17th November, 1949, the date of application for registration. The party has not taken any steps to get retrospective effect for the certificate from 1-1-1125. The dealer can therefore be considered as a manufacturer of cocoanut oil, and rebate can be given with effect from only 17th November, 1949.

4. The petitioner appealed to the Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax, Ernakulam, against the said decision and in Exhibit B, his order dated 28th January, 1954, he has stated as follows :-

Appellant was conducting an oil mill and was assessed to tax for 1125 after disallowing the claim for deduction under Rule 20(2) till the date of application for registration as a manufacturer of cocoanut oil and cake.

The main contention is that the deduction claimed under Rule 20(2) was wrongly disallowed.

The records were perused and the learned advocate was heard.

It is strenuously argued that as the rules do not specify any date for application for registration under Rule 20, registration within the course of the assessment year should make the dealer, a person who is 'such manufacturer' as is referred to under Rule 20(2). This contention is apparently supported by a ruling of the Madras Sales Tax Tribunal. But it has to be noted that the obligation cast upon a manufacturer under Rule 20 (3) can be discharged only if he is already registered under Rule 20 (1). It follows that manufacturer should get registered under Rule 20 (1) either within two months of the commencement of the business or within 31st May of the year for which deduction is claimed. In this case the application for registration was made only on 17th November, 1949, and the appellants' attempt to get registration with retrospective effect has failed before the Board of Revenue. The certificate has also been issued with effect only from 17th November, 1949. In these circumstances I do not find sufficient grounds to hold that deduction till 17th November, 1949, was wrongly refused.

In the result this appeal fails and is therefore dismissed.

The Appellate Assistant Commissioner was apparently labouring under some misapprehension as to the rules applicable to the case. He does not seem to have realised that the relevant provisions were those contained in the Travancere General Sales Tax (Turnover and Assessment) Rules, 1124.

5. A revision petition was filed before the Board of Revenue and Exhibit D, the order of the Board dated 23rd September, 1954, is in the following terms :-

It is urged that the application for registration as a manufacturer of cocoanut oil and cake has been made within the accounting period. As the rule does not specify any date or form for the purpose, it is contended that it should be the petitioner who should get the benefit.

The application for registration was made only on 17th November, 1949, and the certificate has also been issued with effect from that date. Sub-rule (2) of Rule 22 lays down that 'every such manufacturer shall be entitled to a deduction etc.' Here the term 'such manufacturer' clearly and unambiguously indicates the person who has already obtained a manufacturer's certificate in cocoanut oil and cake. It is true that Rule 22(1) does not fix a time limit within which the application has to be filed. But when the Advocate himself points out the absence of any provision to condone the delay in making the application, if he wants to enjoy the benefit of the deduction under Rule 22 (2) he has but to apply for and take out the registration certificate from the very beginning. If he fails to do so, he loses the benefit. As stated by the Appellate Assistant Commissioner the obligation cast upon a manufacturer under Rule 22(3) can be discharged only if he has already registered under Rule 22(1). The certificate was issued only from 17th November, 1949, and therefore the petitioner is entitled to the deduction only from that date. There is no provision in the Act or Rules to give retrospective effect to the certificate.

In the circumstances, the Appellate Assistant Commissioner is sufficiently justified in dismissing the appeal. The revision petition is dismissed.

6. It is clear from the passages extracted above and the arguments advanced before us that the only question for determination is whether an assessee in order to be entitled to the deduction provided by Rule 22(2) should have been a registered manufacturer at the time of the manufacture or whether it is sufficient if-as contended by the petitioner-he becomes a registered manufacturer by the time the final assessment is made.

7. The tax under the Travancore General Sales Tax Act , 1124, is levied on the net turnover of a dealer and according to Rule 7 of the Travancore General Sales Tax (Turnover and Assessment) Rules, 1124, one of the items to be deducted from the gross turnover for determining the net turnover is 'all amounts which a registered manufacturer of cocoanut and or groundnut oil and cake may be entitled to deduct from his gross turnover under Rule 22 subject to the conditions specified in that rule.

Rule 22 [omitting the explanation to Sub-rule (2)] reads as follows :

(1) Any dealer who manufactures cocoanut/groundnut oil and cake from cocoanut and/or copra or groundnut and/or kernel purchased by him may on application to the assessing authority having jurisdiction over the area in which he carried on his business, be registered as a manufacturer of cocoanut/groundnut oil and cake.

(2) Every such manufacturer shall be entitled to a deduction under Clause (k) of Sub-rule (1) of Rule 7 equal to the value of the cocoanut and/or copra or groundnut and/or kernel purchased and converted by him into oil and cake provided that the amount for which the oil is sold is included in his turnover.

(3) Every such manufacturer shall, not later than the last day of every month, submit a statement to the registering authority furnishing the following particulars in, respect of transactions relating to the previous month :-

(i) the aggregate amount of cocoanut and/or copra, groundnut and/or kernel purchased by him, and the total purchase price; and

(ii) the quantity of the cocoanut oil and/or groundnut oil manufactured, the amount for which it was sold and the amount included in the turnover.

(4) If any such manufacturer submits the statement referred to in Sub-rule (3) after the last day of the month or if he omits to furnish therein any of the particulars required by that sub-rule, the registering authority concerned may, in his discretion after making such enquiry as he considers necessary condone the delay or omission or both ; provided that such manufacturer has maintained a true and correct account of his business showing all the particulars required by Sub-rule (3).

(5) For the purpose of Sub-rule (2), the value of the cocoanut and/ or copra, groundnut and/or kernel shall be calculated on the price for which the manufacturer purchased the cocoanut and/or copra, groundnut and/or kernel in the month to which his application for deduction relates or, if no purchase was made in that month, in the last preceding month in which the manufacturer made the purchase.

(6) No deduction under Clause (k) of Sub-rule (1) of Rule 7 shall be allowed in connection with the sale of cocoanut and/or groundnut cake.

8. Rule 22(2) seems to make it quite clear that in order to be entitled to the deduction the manufacturer must have been a 'registered manufacturer' at the time of the manufacture and not at any time thereafter. The person entitled to a deduction under that sub-rule is 'every such manufacturer', i.e., 'every manufacturer registered in pursuance of Sub-rule (1) of Rule 22' and the deduction is in respect of oil and cake 'converted by him', i.e., 'converted by a registered manufacturer.' In view of this it is imposible to say that any oil manufactured by a dealer who was unregistered at the time of the manufacture is none the less oil manufactured by a registered dealer simply because the dealer chose to obtain a certificate of registration subsequent to the completion of the manufacture.

9. The petitioner's counsel drew our attention to The State of Madras, Re (1954) 1 M.L.J. 669. In that case the assessee though registered under Rule 18 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, only on the 3rd March, 1951, was granted the deduction in respect of February, 1951, by the Sales Tax Appellate Tribunal. The State took up the matter in revision before the High Court of Madras under Section 12-B(1) of the Madras General Sales Tax Act, 1939, and that Court dealt with the contention of the learned Government Pleader as follows :-

The contention of the learned Government Pleader is that Rule 18 taken as a whole cannot be said to be retrospective in its operation, and that any deduction permissible under Rule 18(2) could be claimed only from the date of registration, and that therefore no rebate should have been allowed under Rule 18(2) for the month of February. Sub-rule (2) and Sub-rule (3) of Rule 18 have to be read together, and in reading Sub-rule (3), Form A-9, which has been specifically referred to in Sub-rule (3), has also to be read with it. Form A-9 is in itself an application for rebate, and, under Sub-rule (3), that application could be made for the previous month. Since on the date the assessee applied for the deduction permissible under Rule 18(2) he was 'such a manufacturer' within the meaning of Sub-rule (3), i.e., a manufacturer registered under Sub-rule (1) of Rule 18, he was entitled, under the provisions of Sub-rule (3), to present the application for the previous month, i.e., the month even prior to the month of registration. The view taken by the Appellate Tribunal is fully justified by Form No. A-9 read with Sub-rule (3) and Sub-rule (2) of Rule 18 and calls for no revision.

10. Rule 18 of the Madras Rules and Rule 22 of the Travancore Rules are not identical in wording and there is . no form prescribed under the Travancore Rules on the lines of Form A-9 mentioned in the extract given above. In view of this it is unnecessary for us to record whether if the provisions were identical we would have endorsed the decision of the Madras High Court. All that we need say is that under the relevant Travancore provisions it is not possible to grant a similar deduction.

11. In the light of what is stated above this petition must fail and is hereby dismissed, but in the circumstances of the case without any order as to costs.


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