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Plastics and Machinery Distributors Vs. Additional Member, Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberMatter No. 13 of 1973
Judge
Reported in[1978]42STC288(Cal)
AppellantPlastics and Machinery Distributors
RespondentAdditional Member, Board of Revenue and ors.
DispositionApplication dismissed
Cases ReferredPhanindra Nath Manna and Company v. Commercial Tax Officer
Excerpt:
- .....appeal to the assistant commissioner, commercial taxes. the assistant commissioner found that the purchasing dealer had obtained the declaration form in question on 17th december, 1959 and the said declaration form was alleged to have been obtained by the petitioner on 18th june, 1960, although according to the purchasing dealer's application dated 21st december, 1959, declaration forms issued on 17th december, 1959, had already been exhausted by that time. the petitioner, thereafter, preferred a revision application before the additional commissioner, commercial taxes. the additional commissioner, commercial taxes, by his order also confirmed the decision of the commercial tax officer. against the impugned order the petitioner moved the member, board of revenue, west bengal. the.....
Judgment:

Sabyasachi Mukharji, J.

1. The petitioner is a partnership firm. The petitioner is registered under the Bengal Finance (Sales Tax) Act, 1941. For the assessment period ending with the four quarters in December, 1960, the petitioner claimed deductions under Section 5(2)(a)(ii) of the said Act. The said deductions except for one item were allowed, but the claim for deduction of Rs. 50,942 and supported by the declaration form No. A 10879493 was disallowed. The Commercial Tax Officer, Manicktola Charge, was of the opinion that the transaction in question was not genuine as it did not, according to him, take place in the normal course of business. He, accordingly, disallowed the claim for deduction on that account. Being aggrieved by the aforesaid decision, the petitioner preferred an appeal to the Assistant Commissioner, Commercial Taxes. The Assistant Commissioner found that the purchasing dealer had obtained the declaration form in question on 17th December, 1959 and the said declaration form was alleged to have been obtained by the petitioner on 18th June, 1960, although according to the purchasing dealer's application dated 21st December, 1959, declaration forms issued on 17th December, 1959, had already been exhausted by that time. The petitioner, thereafter, preferred a revision application before the Additional Commissioner, Commercial Taxes. The Additional Commissioner, Commercial Taxes, by his order also confirmed the decision of the Commercial Tax Officer. Against the impugned order the petitioner moved the Member, Board of Revenue, West Bengal. The Member, Board of Revenue, by an order dated 9th May, 1972, dismissed the said revision application. The petitioner, thereupon, on 12th January, 1973, moved this court and obtained a rule nisi in this application under Article 226 of the Constitution.

2. The petitioner's ground of challenge to the impugned orders is that the petitioner, having complied with all the conditions necessary under Section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941, as well as Rules 27A and 27AA of the Bengal Sales Tax Rules, 1941, was entitled to deduction as claimed for the transaction covered by the said declaration form. The respondent-authorities in refusing to grant the said deduction has acted arbitrarily and contrary to the provisions of law. It was, further, contended that there were no materials for holding that the transactions represented by the said declaration form was not genuine and the respondent-authorities had acted on mere surmise or guess. In aid of this submission, counsel for the petitioner drew my attention to a Bench decision of this Court in the case of Durga Sree Stores v. Board of Revenue, West Bengal [1964] 15 S.T.C. 186. There the court observed that the scope of Article 227 of the Constitution of India was at least as wide as that of old Section 107 of the Government of India Act, 1915. If the decision of the Tribunal could be shown to be arbitrary and devoid of reason or if it was based on an error on a jurisdictional point then, by exercise of the power of superintendence under Article 227 of the Constitution, the High Court could and should revise the decision. If an error, whether of fact or of law, was such that the erroneous decision had resulted in the Tribunal exercising jurisdiction, not vested in it by law, or in its having failed to exercise jurisdiction vested in it by law, that would come within the scope of Article 227 of the Constitution. This error might have resulted from violation of the rules of natural justice by taking into consideration matters, which were extraneous and irrelevant, or by substituting judicial consideration by bias, based on suspicion, arising from those extraneous matters or from any other cause whatsoever, but if it had affected assumption or exercise of jurisdiction, as envisaged above, it would be a jurisdictional error for the purpose of the article. In that case, the assessee-firm assessed to sales tax under the Bengal Finance (Sales Tax) Act, 1941, had claimed deduction from its turnover, sales to 'registered dealers' under Section 5(2)(a)(ii), but the Commercial Tax Officer had disallowed deduction in respect of 30 items on the ground that those transactions were suspicious and the certificates of these dealers were cancelled within some months after the transactions. The appellate authorities did not accept the reasons of the Commercial Tax Officer and had allowed the assessee's claim in respect of 21 transactions. They, however, disallowed the assessee's claim in respect of 9 transactions on the ground that the purpose of the purchase had not been specified in the relative statutory declarations. The Board of Revenue in rejecting the revision did not apply its mind to the reasons of the appellate authority but had based its decision on the ground of suspicion which weighed with the Commercial Tax Officer. It was held that the Board in proceeding on mere suspicion had committed not an error on a mere question of fact or law, but an error touching and concerning jurisdiction and the remedy provided by Section 21 was in no way alternative remedy to Article 227 of the Constitution. The facts of that case, in my opinion, are significantly different from the facts of the instant case as would be noticed later.

3. Reliance was placed also on the decision of the Supreme Court in the case of State of Madras v. Radio and Electricals Ltd. [1966] 18 S.T.C. 222 (S.C.). There the Supreme Court was dealing with Section 8(1) read with Section 8(3)(b) of the Central Sales Tax Act, 1956. The Supreme Court observed that reading Section 8(1) with Section 8(3)(b) of the said Act it was clear that the legislature intended to grant the benefit of concessional rates of tax under the Act to registered dealers provided that the goods sold were of the class or classes specified in the certificate of registration of the purchasing dealer and the goods were intended to be used for resale by him or for use in the manufacture of goods for sale or for use in the execution of the contracts or for packing of goods for resale. There the Supreme Court observed that indisputably the seller could have in these transactions no control over the purchaser. He had to rely upon the representations made to him. He must satisfy himself that the purchaser was a registered dealer and the goods purchased were specified in the certificate ; but his duty extended no further. If he was satisfied on a representation made to him in the manner prescribed by the rules and the representation was recorded in the certificate in form C the selling dealer was under no obligation to see to the application of the goods for the purpose for which it was represented that the goods were intended to be used. The Supreme Court also observed at page 234 of the Reports that if the purchasing dealer held a valid certificate specifying the goods which would be purchased and furnished the required declaration to the selling dealer, the selling dealer became on production of the certificate entitled to the benefit of Section 8(1) of the Central Sales Tax Act, 1956. But the Supreme Court cautioned that it was of course open to the sales tax authority to satisfy himself that the goods which were purchased by the purchasing dealer under the certificate were specified in the purchasing dealer's certificate in form B. These observations were made in connection with a different contention and in a different context.

4. Counsel also drew my attention to the observations of the learned single Judge of this court in the case of Phanindra Nath Manna and Company v. Commercial Tax Officer [1974] 33 S.T.C. 292. There the learned Judge observed that the assessing authorities were not justified in depriving a dealer of the benefit of deduction under Section 5(2)(a)(ii) of the Act by subsequently cancelling the registration certificate of a purchasing dealer after the period to which the deduction related. It was, however, observed that it was open to the assessing authorities to come to the conclusion on proper evidence that the transactions were not genuine and no sales in fact took place, but no such finding could be arrived at simply from the fact that the registration certificate of a purchasing dealer had been subsequently cancelled by the taxing authorities. If the assessing authorities in an appropriate case were satisfied on proper evidence that the concerns were not in existence when the alleged sales were made to them, it was open to such authorities to come to such a view. But the subsequent cancellation of the registration certificate did not ipso facto lead to the conclusion that the dealer was not in existence at the time when the transactions took place. The law did not require that in order to claim deduction under Section 5(2)(a)(ii) of the Act the sales should not be made on cash payment. Therefore, in order to be entitled to deduction, it must be established by the dealer that he had 'sold goods' to a registered dealer. In the instant case, the Assistant Commissioner had observed, inter alia, as follows:

In the aforesaid facts and circumstances, I am also not satisfied as to the bona fides of the alleged sales to the United Commercial Agency and for that matter the question of allowing any claim in respect of sales will not arise, the production of declarations notwithstanding. The alleged sales were made to unregistered dealers but with a view to avoid tax, declaration from the United Commercial Agency was procured in a manner not warranted by the law for the time being in force.

5. The question is, whether in coming to the aforesaid conclusion the respondent-authorities were acting without jurisdiction or had acted without evidence. In my opinion, whether a particular dealer is entitled to claim deduction on production of proper evidence is a matter to be primarily decided by the authority concerned under the Bengal Finance (Sales Tax) Act, 1941. It is for the dealer who claims deduction in such a case to satisfy by proper evidence the claim for deduction. Rule 27A of the Bengal Sales Tax Rules, to which my attention was drawn provides, inter alia, as follows :

27A. (1) A dealer who wishes to claim the benefit of lower rate of tax in respect of sales referred to in Clause (aa) of Sub-section (1) of Section 5 or who wishes to deduct from his gross turnover the amount in respect of a sale on the ground that he is entitled to make such deduction under the provision of Sub-clause (ii) of Clause (a) of Sub-section (2) of Section 5 shall, on demand, produce in respect of such sale the relevant particulars and evidence including the copy of the relevant cash memo, or bill, according as the sale is a cash sale or a sale on credit and a declaration in form XXIV obtainable, subject to the provisions of Rule 27AA, by the purchasing dealer on application from the appropriate Commercial Tax Officer and duly filled in and signed by the purchasing dealer or by a person duly authorised in this behalf by such dealer stating inter alia,-

(a) in the case of a sale referred to in the said Clause (aa) of Sub-section (1) of Section 5 or in the said Sub-clause (ii) of Clause (a) of Sub-section (2) of Section 5, that the goods in question are of the class or classes specified in the certificate of registration of the purchasing dealer and are intended for resale by such dealer in West Bengal or are containers and other materials for the packing of goods of the class or classes so specified :

Provided that, except in cases where the total amount covered by one declaration in form XXIV is equal to or less than five thousand rupees or such other amount as the Commissioner may, from time to time, notify in this behalf in the Calcutta Gazette, no single declaration in form XXIV shall cover-

(a) more than one transaction of sale, or

(b) any amount exceeding that which the appropriate Commercial Tax Officer may, in issuing the form, specify thereon to be the limit of the total value of purchase to be made in a single transaction of sale,

and a declaration in a form in contravention of the provisions of Clause (a) or Clause (b) shall not entitle the dealer who accepts such declaration to make any deduction under this Sub-rule on the strength thereof.

6. In the facts of this case, the following materials have emerged :

(1) That the registration certificate of the purchasing dealer was cancell- ed on 7th October, 1960 ;

(2) The alleged transaction of the petitioner with the purchasing dealer took place on 18th June, 1960;

(3) The purchasing dealer had obtained the declaration form in question on 17th December, 1959 and the said dealer had made a declaration along with the application dated 21st December, 1959, that the declaration forms issued on 17th December, 1959, were exhausted by the 21st December, 1959 ;

(4) The petitioner produced the cash memo ;

(5) The transaction was alleged to be for the sum of Rs. 50,942, but except for the sum of Rs. 942, the balance was paid in cash;

(6) When called upon, the petitioner failed or neglected to produce the stock book or stock register; no explanation for such failure was forwarded or adduced.

7. The question is from these factors, if the assessing authority comes to the conclusion that the transaction did not represent genuine transaction with a registered dealer, can it be said that he was acting without any evidence at all. It is true that the fact that payment was made by cash itself is not decisive of the fact whether the transaction was genuine or not. Cash transactions are permissible and recognised by law. It is also true that the fact that the purchasing dealer's registration certificate was cancelled subsequently is not conclusive on the question of the genuineness of the transaction if at the time when the transaction took place there was a valid registration certificate of the purchasing dealer. But these two factors though not conclusive by themselves can be taken into consideration along with other factors mentioned in a particular case. Here one significant factor was the fact that the purchasing dealer had made a statement that he had exhausted the declaration forms by 21st December, 1959. The declaration form was alleged to have been given to the petitioner on 18th June, 1960. These two positions are inconsistent. It was urged that this statement or declaration of the purchasing dealer had been obtained not upon notice to the petitioner but at the back of the petitioner. But the petitioner had knowledge of the said statement as the said statement was recorded in the order of the Assistant Commercial Tax Officer. The petitioner in his revi-sional application before the Additional Commissioner did not adduce any evidence to contradict or destroy the value of that statement. There was the further factor that the petitioner was asked to produce stock book which the petitioner failed and neglected to do so. No explanation for non-production of the said stock book was given. Counsel for the petitioner contended that the stock book would not have reflected the transaction with the particular dealer but it would have shown the existence of stocks on particular dates. It may be that the stock book might or might not have reflected the transaction with particular dealer but existence or non-existence of the amount of stock on the alleged date of the transaction would be a relevant piece of evidence. If in these background the authority, having jurisdiction to decide this question, takes the view that the transaction did not represent genuine sale with a registered dealer, in my opinion, it cannot be said that the authority has acted without jurisdiction. Mere production of the evidence as contemplated by Rule 27A of the Bengal Sales Tax Rules does not exonerate the dealer from producing other evidence if relevant and if required nor does it absolve the assessing authority from finding out whether the transaction in question was a genuine one or not. In that view of the matter, in my opinion, the impugned order cannot be challenged as either being on no evidence or on erroneous principle of law. The learned Member, Board of Revenue, was, therefore, justified in rejecting the revision application.

8. Counsel for the respondent contended that, in any event, the petitioner was not entitled to move this application as the petitioner did not resort to the alternative remedy provided by the Act. In the view I have taken, it is not necessary for me to embark on this aspect of the matter.

9. The application, therefore, fails and is accordingly dismissed. The rule nisi is discharged. Interim order, if any, is vacated.

10. There will be no order as to costs.


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