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State of Rajasthan Vs. Mohanlal Ratanlal - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Sales Tax Reference No. 11 of 1968
Judge
Reported in[1973]30STC148(Raj); 1972()WLN141
AppellantState of Rajasthan
RespondentMohanlal Ratanlal
Advocates: Raj Narain, Additional Adv.-General
Cases ReferredState of Orissa v. M.A. Tulloch and Co. Ltd.
Excerpt:
rsjasthan sales tax act - section 2(s)(iv) and rajasthan sales tax rules rule 25c--held, provision of rule 25c is directory and it is not necessary to obtain declaration form for goods sold to registered dealers for resale within the state.;the sub-section, cannot over ride the limits of delegated legislation namely, that essential legislative function cannot be delegated section 2(s)(iv), as it stood at that time did not contain a provision that only such sales would be allowed to be deducted from the taxable turnover as were covered by a declaration as might be prescribed in the rules, any such provision contained in the rules could only be treated as directory.;the provision of rule 25 c with regard to the year 1011.02 was only directory and not mandatory and it was not necessary to..........authority. deduction to that extent was allowed under rule 25c of the rajasthan sales tax rules. deduction to the extent of rs. 4,089.66 was refused.3. the assessee appealed to the deputy commissioner (appeals), commercial taxes. he produced before the appellate authority further declarations in form s.t. 17 amounting to rs. 3,834.59. out of these, declarations to the extent of rs. 540.06 were not properly filled, as the commodity which was sold was not mentioned therein. declarations for the amount of rs. 3,294.53 were proper. a further deduction in turnover to that extent was allowed by the appellate authority.4. the department filed a revision before the board of revenue, which upheld the order of the appellate authority. thereafter on the application of the department the.....
Judgment:

Jagat Narayan, C.J.

1. The following question has been referred to this court for decision by the Board of Revenue under Section 15 of the Rajasthan Sales Tax Act:

Whether in regard to the year 1961-62 the provision of Rule 25C, Rajasthan Sales Tax Rules, was only directory and not mandatory and whether it was not necessary to obtain declaration form for goods which had been sold to registered dealers for the purpose of resale within the State.

2. The facts which have given rise to the reference are these : The assessee, who is a registered dealer, claimed a deduction from his taxable turnover under Section 2(s)(iv) amounting to Rs. 6,397.99. Sales to registered dealers were supported by declarations in form S.T. 17 to the extent of Rs. 2,308.33 before the assessing authority. Deduction to that extent was allowed under Rule 25C of the Rajasthan Sales Tax Rules. Deduction to the extent of Rs. 4,089.66 was refused.

3. The assessee appealed to the Deputy Commissioner (Appeals), Commercial Taxes. He produced before the appellate authority further declarations in form S.T. 17 amounting to Rs. 3,834.59. Out of these, declarations to the extent of Rs. 540.06 were not properly filled, as the commodity which was sold was not mentioned therein. Declarations for the amount of Rs. 3,294.53 were proper. A further deduction in turnover to that extent was allowed by the appellate authority.

4. The department filed a revision before the Board of Revenue, which upheld the order of the appellate authority. Thereafter on the application of the department the above question has been referred for decision.

5. Section 2(s)(iv) ran as follows at the relevant time :

(s) 'taxable turnover' means that part of turnover which remains after deducting therefrom the aggregate amount of the proceeds of sale of goods-

(iv) which are taxable at the last point and have been sold to registered dealers for the purpose of resale within the State.

6. Rule 25C ran as follows :

25C. Furnishing of declaration.-(1) A dealer who is entitled to and claims-(i) exemption from payment of tax...

(a) on sales made to a registered dealer of goods taxable at the last point for the purpose of-

(i) resale within the State ; or

(ii) sale in the course of inter-State trade or commerce ; or

(iii) sale in the course of export out of the territory of India ; or'

(iv) sale outside the State; or...

shall in respect of each such sale, obtain a declaration from the purchasing dealer in form S.T. 17 and shall along with the return under Rule 25, file all declarations obtained as aforesaid and also submit a separate list of such sales in form S.T. 16....

Provided that no declaration shall cover more than one transaction.

7. In the State of Orissa v. M.A. Tulloch and Co. Ltd. [1964] 15 S.T.C. 641 (S.C.) Section 5(2)(a)(ii) and Rule 27(2) of the Orissa Sales Tax Act and the Orissa Sales Tax Rules ran as follows :

Section 5(2)(a)(ii)-Sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration as being intended for resale by him in Orissa and on sales to a registered dealer of containers or other materials for the packing of such goods:

Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover.

Rule 27(2)-Claims for deduction of turnover under Sub-clause (ii) of Clause (a) of Sub-section (2) of Section 5.-A dealer who wishes to deduct from his gross turnover on sales which have taken place in Orissa the amount of a sale on the ground that he is entitled to make such deduction under Sub-clause (ii) of Clause (a) of Sub-section (2) of Section 5 of the Act, shall produce a copy of the relevant cash receipt or bill according as the sale is a cash sale or a sale on credit in respect of such sale and a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealer's certificate of registration as being required for resale by him or in the execution of any contract:

Provided that no dealer whose certificate of registration has not been renewed for the year during which the purchase is made shall make such a declaration and that the selling dealer shall not be entitled to claim any deduction of sales to such a dealer.

8. It was held that the provision about filing a declaration contained in Rule 27(2) was directory on the ground that there was nothing in the section itself that disentitled a selling dealer to a deduction, if he did not file a declaration. The Board of Revenue held that this decision is applicable in the present case and accordingly came to the finding that the provision in Rule 25C for filing declaration in form S.T. 17 is directory.

9. Learned Additional Advocate-General sought to distinguish the Orissa case by drawing our attention to Sub-section (5) of Section 26 of the Rajasthan Sales Tax Act, which gives power to make rules. This sub-section runs as follows :

(5) All rules made under this section shall be published in the Official Gazette, and. upon such, publication, shall have effect, as if enacted in this Act.

10. It is contended that the effect of the above sub-section was to make Rule 25C a part of the Act itself.

11. In our opinion, the sub-section cannot override the limits of delegated legislation, namely, that essential legislative functions cannot be delegated. Section 2(s)(iv), as it stood at that time, did not contain a provision that only such sales would be allowed to be deducted from the taxable turnover as were covered by a declaration as might be prescribed in the Rules ; any such provision contained in the Rules could only be treated as directory, as was done by their Lordships of the Supreme Court in the Orissa case [1964] 15 S.T.C. 641 (S.C.) referred to above.

12. We accordingly hold that the provision of Rule 25C with regard to the year 1961-62 was only 'directory and not mandatory and it was not necessary to obtain declaration form for goods which had been sold to registered dealers for the purpose of resale within the State.

13. The question is thus answered in the affirmative.


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