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Kedar Nath Jute Manufacturing Co., Ltd. Vs. Commrrcial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 7 of 1958
Judge
Reported in[1959]10STC241(Cal)
AppellantKedar Nath Jute Manufacturing Co., Ltd.
RespondentCommrrcial Tax Officer and ors.
DispositionApplication dismissed
Excerpt:
- sinha, j.1. the facts in this case are shortly as follows: the petitioner is the kedar nath jute ., a public limited company incorporated under the indian companies act, having its principal place of business in calcutta. it is a dealer registered under the bengal finance (sales tax) act (vi of 1941) (hereinafter referred to as the 'act'). in respect of the accounting period ending with 31st december, 1954, the petitioner submitted a return to the commercial tax officer on 21st october, 1955. in this return, the gross turnover was shown to be rs. 70,99,928-10-0. of this sum, exemption was claimed under two headings. one was under section 5(2) (a) (i), for goods included in the schedule of exemptions amounting to rs. 1,33,730-7-6. in this application we are not concerned with this. what we.....
Judgment:

Sinha, J.

1. The facts in this case are shortly as follows: The petitioner is the Kedar Nath Jute ., a public limited company incorporated under the Indian Companies Act, having its principal place of business in Calcutta. It is a dealer registered under the Bengal Finance (Sales Tax) Act (VI of 1941) (hereinafter referred to as the 'Act'). In respect of the accounting period ending with 31st December, 1954, the petitioner submitted a return to the Commercial Tax Officer on 21st October, 1955. In this return, the gross turnover was shown to be Rs. 70,99,928-10-0. Of this sum, exemption was claimed under two headings. One was under Section 5(2) (a) (i), for goods included in the schedule of exemptions amounting to Rs. 1,33,730-7-6. In this application we are not concerned with this. What we are concerned with is the exemption claimed under the second heading, namely, under Section 5 (2) (a) (ii), amounting to Rs. 69,65,979-9-6, which practically wiped off the entire liability, and, indeed, the taxable turnover that remained amounted to the sum of Rs. 218-9-0 upon which the tax payable was Rs. 9-12-6, the amount being deposited in the treasury. It will be necessary presently to examine the provisions of Section 5 (2) (a) (ii) somewhat closely, but for the time being, it will be sufficient to say that this provision of law gives exemption in respect of sales to a registered dealer, of goods of the class or classes specified in the certificate of registration of such dealer as being intended for resale by him, etc., provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are sold is furnished in the prescribed manner by the dealer who sells the goods. On 22nd April, 1955, notice in Form VI of the Act was issued by the respondent No. 1 fixing 4th August, 1955, as the date for hearing the petitioner's assessment case for the period ending 31st December, 1954. On 27th February, 1956, the petitioner company filed a return for the period ending 31st December, 1955. On 4th September, 1956, the Commercial Tax Officer, respondent No. 1, issued notice in Form VI fixing 21st January, 1957, for hearing of the petitioner's assessment case for the period ending 31st December, 1955. With regard to the assessment for the period ending 31st December, 1954, a copy of the order sheet has been filed and marked as Ex. '1'. It appears from the order sheet that on 21st April, 1955, the Commercial Tax Officer made an order that no return having been filed for the year ending 31st December, 1954, notice should be issued under Sections 4 (1) and 14 (1) of the said Act, and also a show-cause notice why penalty should not be imposed for non-submission of return in time. On 4th August, 1955, the petitioner company appeared through its agent and applied for an adjournment on the ground that the books were not finally adjusted. The matter was adjourned till November, 1955, and thereafter until February, 1956. On 1st February, 1956, the petitioner's agent applied for further adjournment on the ground of the illness of their accountant. The matter was adjourned till April, 1956, and thereafter to January, 1957. On 21st January, 1957, the petitioner's agent appeared and for the first time prayed for time on the ground that the dealer was not in a position to produce some declaration forms on that date in support of the claim under Section 5(2)(a)(ii). The case was accordingly adjourned to 7th March, 1957. On 7th March, 1957, the petitioner's agent again appeared and prayed for time on the same ground. The matter was adjourned to 28th March, 1957. On 28th March, 1957, the petitioner's agent appeared and represented that some declaration forms received from the purchasing dealers had been misplaced. He further said that the dealer was trying to obtain duplicate declaration forms from the parties concerned, and prayed for time. The case was adjourned till 3rd May, 1957. At or about this time, the petitioner company approached the Commissioner of Commercial Taxes intimating that certain declaration forms had been lost. Between 16th May, 1957, and 1st August, 1957, the Commissioner of Commercial Taxes notified in the Calcutta Gazette about the loss in respect of some of the alleged purchasing dealers whose declaration forms are said to have been lost. On 3rd May, 1957, the petitioner's pleader appeared before the respondent No. 1 and prayed for further time for obtaining duplicate declaration forms. The case was adjourned to 20th July, 1957. On 20th July, 1957, the petitioner's pleader prayed for further time to obtain the duplicate declaration forms. The matter was adjourned till 20th August, 1957. On 20th August, 1957, the authorised Advocate of the petitioner appeared and prayed for action under Section 21-A of the said Act, which empowers the Commissioner or any person appointed to assist him, to enforce the attendance of any person and examine him or to compel production of documents etc. The assessment of the case including the consideration of the application was adjourned till August and then till September, 1957. On 27th August, 1957, the petitioner company made an application before the Commissioner of Commercial Taxes, praying that the Commissioner should declare that it was entitled to receive duplicate declaration forms from the dealers concerned, and for an order directing these dealers to furnish duplicate declaration forms. On 30th August, 1957, the Commissioner rejected this application, stating that he had no jurisdiction to compel the dealers to issue duplicate declaration forms. The petitioner company thereupon made an application for revision under Section 20(3) of the said Act, to the Board of Revenue, West Bengal. On 10th December, 1957, the Board summarily rejected the petition, holding that it was an administrative matter and the Board could not interfere. The matter of the assessment for the year ending 31st December, 1954, came up for hearing before the Commercial Tax Officer on 21st November, 1957. On this date a further attempt to adjourn the matter on behalf of the petitioner company was unsuccessful and the assessment was made. A copy of the assessment order is Ex. 'T' to the petition. This will show that in so far as the petitioner claimed exemption under Section 5(2) (a) (ii), those items were allowed for which the petitioner could produce declaration forms or duplicate declaration forms. The petitioner company could not produce declaration forms in respect of nine registered dealers who are specifically mentioned in the assessment order, in respect of whose dealings the total amount concerned was Rs. 22,46,006-0-6. In respect of the transactions for which the petitioner could not produce declaration forms, exemption was refused. It has been stated by the respondent No. 1 in his affidavit affirmed on 7th March, 1958 (paragraph 27), that the assessment was actually made on 23rd November, 1957. On 22nd November, 1957, letters were written to the respondent No. 1 requesting that the books should be looked into and that if necessary, evidence should be heard in respect of the alleged loss of declaration forms but these applications were not successful. On or about 26th November, 1957, notice of demand was served on the petitioner and on 3rd February, 1958, this Rule has been issued. In this application the principal attack is on the assessment order dated 23rd November, 1957, and the principal point urged is in respect of the amount disallowed, for which the petitioner company could not produce declaration forms and yet claimed exemption under Section 5(2) (a) (ii)of the Act. The case of the petitioner company is briefly as follows: It is stated that in respect of the nine registered dealers mentioned in the assessment order, all of them had issued declaration forms in respect of the sales. It is further stated that in the majority of cases, payments were made by crossed cheques and the dealers themselves admit the transactions, and the issue of declaration forms. It is stated that sometime in June, 1955, the petitioner company shifted its principal place of business from 34, Jatindra Mohan Avenue, to 13, Syed Sally Lane, Calcutta. It is stated that when the notice in Form VI dated 4th September, 1956, in respect of the assessment of the period ending 31st December, 1955, was served upon the petitioner company fixing the hearing on 21st January, 1957, the petitioner, sometime in the second week of January, 1957, started sorting out and segregating its relevant books of account, papers and documents for the purpose of producing the same before the Commercial Tax Officer. In course of doing so, it is alleged that the petitioner company discovered that a certain file containing as many as 147 declaration forms received by the petitioner from various dealers registered under the Bengal Finance (Sales Tax) Act, 1941, in respect of goods purchased from the petitioner, was missing. In spite of thorough searches conducted by the petitioner to trace out the said file, the petitioner failed to discover the same and the circumstances indicated that the said file might have been mislaid somewhere and/or lost in course of the shifting of the petitioner's office as aforesaid. Thereafter, the petitioner wrote letters to the various registered purchasing dealers whose declaration forms had been found missing, to issue confirmatory letters about the purchases. Many of the dealers gave such confirmatory letters. The petitioner company was thereupon advised to obtain not mere confirmatory letters but duplicate declaration forms. Thereupon, letters were written to the purchasing dealers requesting them to issue to the petitioner duplicate declaration forms. It appears that three of the purchasing dealers issued duplicate declaration forms but the petitioner company has been unable to obtain duplicate declaration forms from the others. On 1st May, 1957, the petitioner lodged information with the Officer-in-charge, Jorasanko Police Station, regarding the loss of the said declaration forms. A copy of this information is Ex. 'G' to the petition. It merely stated that a file containing 147 sales tax declarations obtained from parties to whom the petitioner company sold goods have been lost. The Officer-in-charge of the thana was asked to do the needful in the matter. On 3rd May, 1957, the petitioner company inserted advertisements notifying the loss, in the newpapers-Statesman, Amrita Bazar Patrika and Sanmarg. Thereafter, the petitioner company applied to the Commissioner of Commercial Taxes to direct these dealers to issue duplicate declaration forms and also applied to the Commercial Tax Officer under Section 21-A of the Act, to summon these dealers for production of their books and generally to give evidence for the purposes of proving the transactions as well as the fact that declaration forms which had been lost were actually issued. The complaint is that the first prayer was rejected and so far as the second prayer is concerned, it was never decided although the assessment was made. Complaint is also made that not only did the respondents decline to assist the petitioner in obtaining duplicate declaration forms but actually when these dealers in their turn contacted the respondents, they were asked not to supply the duplicate declaration forms. It is thus argued that although the petitioner company due to reasons beyond its control, lost a number of declaration forms, the respondents have refused to grant to it any means of redress. It is finally stated that it would be grossly unfair and unjust to compel the petitioner company to pay about a lakh of rupees in sales tax in respect of transactions for which it should get exemption under the Act and which transactions could be proved to the hilt from the books of account of the dealers themselves and/or their evidence and it could be proved that the dealers had actually issued the declaration forms which had unfortunately been lost.

2. Briefly put, therefore, the petitioner's case is as follows : It is a registered dealer. It had transactions with other registered dealers. In respect of sales made to these other registered dealers, it would get exemption provided that in the case of such sales a declaration was furnished, duly filled up and signed by the registered dealer to whom the goods have been sold. This declaration had to be on a prescribed form obtainable from the prescribed authority. The petitioner company alleges that it sold the goods and the purchasers duly handed over declaration forms in respect of such sales. In its return which was filed, exemption was claimed under Section 5(2) (a) (ii) of the Act. But when it came to the production of the declaration forms it was found that a considerable number of declaration forms which were in a file had been lost, presumably, while the company was moving its head office from one address to another. Since the original declaration forms were not available, the company approached the registered dealers who confirmed in writing about the transactions and the issue of declaration forms. However, the petitioner was informed that this was not enough and duplicate declaration forms will be necessary. It therefore approached the dealers requesting them to issue duplicates. A few dealers issued duplicate declaration forms but most of the others wrote to their respective Commercial Tax Officers asking for permission to do so. This asking of permission meant that these registered dealers were agreeable to give duplicate declaration forms, provided that in lieu of those declaration forms which they would issue, the Commercial Tax Officer would issue a new set to them. The Commercial Tax Officers were not agreeable. Being unable to obtain duplicate declaration forms, the petitioner company moved the Commissioner to make an order upon the registered dealers compelling them to issue duplicate declaration forms. This the Commissioner refused to do, saying that he had no jurisdiction to compel the registered dealers to issue duplicate declaration forms. The petitioner company then made an application under Section 21-A of the Act, asking that the Commercial Tax Officer should summon the registered dealers to produce their books and generally to give evidence showing that declaration forms had been duly issued. This application was really not heard at all, but the assessment was made and the entirety of the amount not covered by declaration forms has been disallowed. Therefore, the short point is as to whether under such circumstances it is open to the Commercial Tax Officer to allow the exemption upon being satisfied upon evidence that the declaration forms have been issued and that the transactions were in fact effected, and whether he can be compelled to follow this procedure. So far as the facts are concerned relating to the transactions, it is alleged by the petitioner company that it has a strong case inasmuch as the registered dealers have admitted in writing that the transactions did take place, and that declaration forms had in fact been issued. It is further stated that most of the transactions are covered by crossed cheques so that there would be no difficulty whatsoever in proving the transactions. It is argued that it would be grossly unjust to compel the petitioner company to pay sales tax for an enormous amount simply because of an accident whereby certain declaration forms have been lost. On the other hand, it is argued on behalf of the respondents that the merits of the case or the factum of the alleged transactions are not relevant at all. The jurisdiction of the Commercial Tax Officer to make an assessment or to allow an exemption flows from the terms of the statute. It is argued that under the relevant provisions of the Act and the Rules, it is not open to the Commercial Tax Officer to grant an exemption, unless a declaration form is furnished in the manner laid down. If the declaration form cannot be produced for any reason whatsoever, the condition-precedent laid down in the statute is not fulfilled and, therefore, whatever the merits of the case and the hardship suffered by a party, the Commercial Tax Officer is helpless, and must disallow the exemption. Therefore, the point is in a small compass and it is necessary to look into the provisions of the Act and the Rules.

3. The exemptions are contained in Section 5 of the Act. The relevant part of Section 5 (2) is set out below : -

(2) In this Act the expression 'taxable turnover' means in the case of a dealer who is liable to pay tax under Section 4, that part of his gross turnover during any period which remains after deducting there-from -

(a) his turnover during that period on-

(i) the sale of goods declared tax-free under Section 6 ; (ii) sales to a registered dealer - of goods of the class or classes specified in the certificate of registration of such dealer, as being intended for re-sale by him, or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract ;

and

of containers or other materials for the packing of goods of the class or classes so specified :

Provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are sold and containing prescribed particulars on a prescribed form obtainable from the prescribed authority is furnished in the prescribed manner by the dealer who sells the goods.

4. According to Section 2 (e), the word 'prescribed' means prescribed by rules made under this Act. The relative rule is Rule 27A of the Rules made under the Act. The relevant part thereof runs as follows :

27-A. (1) A dealer 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 provisions of Sub-clause (ii) of Clause (a) of subSection (2) of Section 5 shall, on demand, produce in respect of such a sale,

(a) ...

(b) in any other case, 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 writing signed by the purchasing dealer or by such other person as may be authorised in this behalf by such dealer that the goods in question are-

(i) specified in the certificate of registration of such dealer and are intended for resale or are required by such dealer for use by him either in the manufacture of goods for sale or in the execution of any contract, or (ii) required by such dealer for the packing of any goods.

(2) A dealer wishing to make a deduction under Clause (b) of Sub-rule (1) shall not accept, nor shall the purchasing dealer give, a declaration mentioned in the said clause except in a form obtainable on application by the purchasing dealer from the appropriate Commercial Tax Officer and not declared obsolete and invalid by the Commissioner under the provisions of Sub-rule (9);

(3) Every registered dealer shall maintain in a register in Form XXIII true account of every declaration form received from the Commercial Tax Officer, and, if any declaration form is lost or destroyed or stolen, he shall report the same to the appropriate Commercial Tax Officer immediately and shall make appropriate entries in the remarks column of the register in Form XXIII.

(4) The register in Form XXIII shall be kept in the place of business of the dealer and shall at all reasonable times be open to inspection by the Commissioner or by such other authority as may be authorised by the Commissioner in this behalf.

(5) ...

(6) No registered dealer to whom a declaration form is issued by the Commercial Tax Officer shall transfer the same to another person except for the purpose of Sub-rule (2).

(7) A declaration form in respect of which a report has been received by a Commercial Tax Officer under sub-rule (3) shall not be valid for the purpose of Sub-rule (2).

(8) The Commissioner shall from time to time publish in the Calcutta Gazette the particulars of the declaration form in respect of which a report is received under Sub-rule (3).

6. Declaration forms must be in the form prescribed, viz., Form XXIV annexed to the Rules. This form is in two parts, one being the counterfoil retained by the purchasing dealer issuing the declaration form, and the other part being the actual declaration form handed over to the seller. So far as Section 5(2) (a) (ii) is concerned, the proviso makes it clear that the exemption is conditional upon the furnishing of a declaration form in Form XXIV obtainable from the prescribed authority and furnished in the prescribed manner by the dealer who sells the goods. It will be apparent from the rules set out above that certain provisions have been made in the case of declaration forms being lost, destroyed or stolen previous to being issued. In such a case the dealer is required to report the same to the Commercial Tax Officer immediately and to make appropriate entries in the remarks column of register in Form XXIII. Where such a report is received, the Commissioner is to publish the same in the Calcutta Gazette and such declaration forms which have been reported to be destroyed or stolen become invalid. There is provision also for the Commissioner to alter the series, design or colour of declaration forms and to declare a particular series as being obsolete. It is apparent that all these provisions have an object in view. The production of a declaration form grants exemption to a dealer from payment of sales tax. What he does is to pass on the liability, and this is a very valuable right. Where the transactions are large, as in this instant case, the amount involved in respect of exemptions may run into lacs. It has been found in practice that the system of issuing declaration forms is being widely misused. All kinds of trickery and fraud are resorted to by unscrupulous dealers, resulting in wide misuse of the declaration forms and evasion of taxes. In this Court, I have seen extreme instances where figures in declaration forms have been erased and/or obliterated and larger figures put in. I have also seen instances where declaration forms were illicitly obtained and used without authority. Things have come to such a pass that the authorities were compelled to introduce a system of declaring a series of declaration forms as obsolete from time to time. Even this has failed to rectify the widespread misuse of declaration forms. In this case, although I have tried to adjust the matter amongst the parties, it could not be done because a matter of principle was involved. It will be observed that in the rules there is no provision for the issue of duplicate declaration forms, while there is provision for informing the authorities about the loss or destruction of declaration forms prior to their issue. It is prescribed that such forms would be rendered invalid and the factum of loss or destruction should be brought to the notice of the public. Beyond this, however, there is no specific provision for assisting the dealer who has received declaration forms from his purchasers and these have been lost or destroyed. In paragraph 14 of the petition, the petitioner has referred to a circular issued by the Commissioner of Commercial Taxes, West Bengal, and sent to the Bharat Chamber of Commerce, in or about July, 1955. In that circular, it is said that in case of a bonafide loss of a statutory declaration form, 'in transit', it would be in order for the purchasing dealer to issue a duplicate declaration Form XXIV subject to three conditions. The first is that the new declaration form made in lieu of the ones lost in transit should be marked 'duplicate issued in lieu of Form No. .... dated ... for the same amount'. The second condition is that the loss should be promptly reported to the Commercial Tax Officer by the dealer whose form has been lost, with a copy of the communication from the selling dealer who wants a duplicate issue. The third condition is that an entry should be made in Register XXIV. It is further said that in the case of the Burranagore Jute Co., Ltd. under similar cricumstances an order and/or direction was given for issue of duplicate declaration forms. The present case is, of course, not an instance of loss 'in transit', and strictly speaking, the case is not covered by the circular issued by the Commissioner. It is also clear that the Commissioner's circular forms no part of the Act or the Rules, and would be of no effect if the procedure mentioned therein was not covered by the provisions found therein. So far as the issue of duplicate forms is concerned, the stand taken up by the respondents before me is that the issue of duplicate declaration forms is not prohibited by the Act or the Rules, and the Commercial Tax Officer actually allowed exemption in the case of certain duplicate declaration forms which were produced. What is pointed out is that the authorities have no jurisdiction under the Act or the Rules to order, or compel a registered dealer to issue, duplicate declaration forms. My attention was drawn on behalf of the petitioner company to certain correspondence mentioned above between the registered dealers and their respective Commercial Tax Officers, wherein the dealers asked the authority of the Commercial Tax Officer to issue duplicate declaration forms but this authority was not forthcoming. It is explained that the authorities could have no objection to the issue of duplicate declaration forms. But the dealers made it conditional upon the issue of fresh declaration forms in lieu thereof, and this the authorities were unwilling to grant. It is pointed out that in the case of the Burranagore Jute Co., no direction was given compelling any dealer to issue duplicates. It appears from the papers before me that frankly speaking the authorities do not believe the story put forward by the petitioner company about the loss of the declaration forms. In his order dated 30th August, 1957, the Commissioner stated that reports of loss of declaration forms had become too frequent. Cases had occurred where written up declaration forms had been chemically or otherwise treated for removal of the original writing and fraudulently used over again. If a dealer who alleged loss of declaration forms was allowed to have duplicates as a matter of right, evasion of tax would be widespread and rampant. In his opinion, it was the duty of every dealer, in his own interest as well as in public interest, to keep declaration forms carefully and in safe custody and if he lost the forms, he did so at his own risk and had to take the consequences. So far as this case is concerned, it is said that there exists ground for suspecting the bona fides of the petitioner company. The first ground alleged is one of delay. The office of the petitioner company was shifted from one address to another in June, 1955, and yet it was in May, 1957, that information was lodged by the petitioner company with the Officer-in-charge, Jorasanko Police Station, regarding the alleged loss, and it was in May, 1957, that information was received by the Commissioner about the loss. It is pointed out that even at that stage the report made to the Commercial Tax Authorities was not complete. Secondly, it is pointed out that the assessment order will show that apart from these items of exemptions which were disallowed in the absence of declaration forms, another sum of Rs. 11,00,000 was disallowed because the declaration forms produced were mostly 'Pre-Nasik'. What happened was that the series of declaration forms was changed, the Nasik declaration forms coming into vogue in March, 1954. Therefore, in respect of certain transactions what should have been produced were Nasik declarations and yet, what were actually produced were Pre-Nasik declarations which had become obsolete. Significantly nothing has been heard about these transactions relating to the enormous amount of Rs. 11,00,000, and to such a party the authorities are plainly unable to extend facilities which might assist them in defrauding the revenue. It is, of course, impossible for me in this application to arrive at any finding as to the bona fides of the petitioner company. The matter before me is really one of law. Either the petitioner company is entitled to the facilities asked for as a matter of right under the provisions of the Act and the Rules, or it is not. Coming now to the application made by the petitioner company under Section 21-A of the Act, the position is as follows: Under that provision, the Commissioner or any person appointed to assist him has been invested with the same powers as are vested under the Code of Civil Procedure, 1908, when trying a suit in respect of enforcing the attendance of any person and examining him on oath or affirmation, or compelling the production of documents and issuing commissions for the examination of witnesses. Proceedings also are to be deemed as judicial proceedings within the meaning of Sections 193 and 228 and for purposes of Section 196 of the Indian Penal Code. It is not denied that the petitioner company made such an application. What was asked for is that the dealers concerned should be summoned to appear before the Commercial Tax Officer and to produce their books and documents so that the sales made by the petitioner company to these parties could be fully substantiated and proved, entitling the petitioner company to claim deduction under Section 5 (2) (a) (ii) of the Act. The documents asked for were (1) counterfoils of the declaration forms issued to the petitioner company (Form XXIV), (2) register of declarations in Form XXIII, (3) ledger, cash book, journal and bank pass-book for the relevant purchases made by the said dealer. This application has admittedly not been disposed of when the assessment was made. It is however argued that under the Act or the Rules, the Commercial Tax Officer had no jurisdiction to accept secondary evidence of the declaration forms. What is required under the statute is actual production of the 'prescribed' forms in the 'prescribed' manner. If that is so, the application under Section 21-A of the Act is of no effect, because the calling of witnesses and their books would lead to nothing. We, therefore, come to the real point in this case, namely, as to whether it is possible for the Commercial Tax Officer to grant exemption without production of the actual declaration forms and upon a consideration of secondary evidence, that is to say, evidence of the fact that such a declaration form had in fact been issued. So far as the proviso to Section 5(2) (a) (ii) is concerned, there can be no doubt that exemption has been made conditional upon a declaration in the prescribed form being furnished in the prescribed manner. The manner prescribed is to be found in the Rules which lay down that when asking for such exemption, the relevant cash memo or bill and a declaration in writing in Form XXIV must be furnished on demand. The petitioner company alleges that the relevant declaration forms have been lost, so that it is plainly unable to produce the declaration forms on demand or at all. Regard being had to the form in which the proviso is couched, I do not see what option the Commercial Tax Officer could have. The exemption granted under the statute must undoubtedly be considered as a creature of the statute and, therefore, the condition must be strictly fulfilled. If the petitioner company really lost the declaration forms, it is undoubtedly unfortunate and entails the petitioner company in heavy loss. But hardship would not be a ground for construing the Act in a manner which is not warranted by its plain language. Mr. Roy appearing on behalf of the petitioner company then argues as follows : He says that for our present purposes the Commercial Tax Officer must be considered to be a 'Court' as defined under Section 3 of the Indian Evidence Act, since it includes all persons, except arbitrators, legally authorised to take evidence. He argues that under Section 21-A of the Act, the Commercial Tax Officer is legally authorised to take evidence and, therefore, it is a 'Court' as defined by the Evidence Act. He says that if that is so, then secondary evidence is permissible under Section 65 of the Indian Evidence Act. That provision of law lays down that secondary evidence may be given of the existence, condition or contents of a document when the original has been lost or destroyed. A number of authorities have been cited before me upon the point as to whether the Commercial Tax Officer was acting as a 'Court' or not and whether Section 65 of the Indian Evidence Act applied. In my opinion, it is unnecessary to deal with the matter at length. I will assume for the moment that for certain purposes the Commercial Tax Officer carries on a judicial proceeding, and even acts as a 'Court' as defined in the Indian Evidence Act. That can only mean that when taking evidence, which it is authorised to take, it can admit secondary evidence of the contents of a document which has been lost or destroyed. But in this particular case, that takes us no further, because even if the Commercial Tax Officer was satisfied upon secondary evidence that a declaration had been issued by a registered dealer in favour of the petitioner company, that would be wholly insufficient for the purposes of enabling him to grant exemption under Section 5 (2) (a) (ii) of the Act. According to the proviso to that sub-section, the condition precedent for granting such exemption is that the dealer who sells the goods and asks for exemption must furnish in the prescribed manner a declaration form in Form XXIV duly filled up and signed by the registered dealer to whom the goods are sold and containing the prescribed particulars. In such a case the condition is that the declaration form should be produced. Exemption could not be be granted if the Commercial Tax Officer was satisfied that the transaction had taken place and a declaration form had been issued, but not produced because it was lost or destroyed. If I hold that exemption could be granted even in such a Case, I would have to add to the wordings of this statute, and this I cannot do. Whether the pre-condition imposed for exemption is a hard one, causing a great deal of hardship to dealers who accidentally and without any fault on their part lose a declaration form, is a matter of policy and it is for the Legislature to consider. In the guise of interpreting the Act or the Rules I cannot add to their plain terms. It is true that for certain purposes the Commercial Tax Officer carries on a judicial or quasi-judicial function, but when computing the liability of an assessee to pay tax or computing the exemption to be granted, it is but acting administratively. In any event, it cannot ignore the provisions of the Statute or the Rules made thereunder. The proviso makes it clear that the declaration form must be furnished in the prescribed manner and the Rules make it clear that it must be furnished on demand. Without the declaration form being actually produced, no exemption can be granted. It is, therefore, irrelevant to call for the books and documents of the seller or to examine witnesses. What has to be furnished is a declaration form. There is no such thing as a 'duplicate' delaration form under the Act, or the Rules. Such a duplicate when issued would be treated as a declaration form. But, so far as the issue of a duplicate declaration form is concerned, that is a matter between the dealers. A rgistered dealer having once issued a declaration form cannot be compelled to issue another. As regards the complaint that the authorities have been directing these registered dealers not to issue duplicate declaration forms to the petitioner company, I think, the respondents have rightly pointed out that these offers made by the registered dealers were conditional upon their being supplied with other declaration forms in lieu thereof. I do not think that the authorities were bound to agree to any such course of action. It is pointed out that if such things are allowed, it will give scope to fraudulent dealers to conspire together and thus defeat the collection of revenue. Although it is not possible for me to impute to any of the parties before me or to any of the registered dealers concerned, a motive of this description, I must admit that such an eventuality is not impossible. It is quite possible for declaration forms to be diverted to other uses and then dealers coming together and assisting one another to establish by secondary evidence the fact of declaration forms having been issued, which, in fact, had never been issued, but were diverted to fraudulent uses.

7. Lastly, Mr. Roy has argued that if that be the proper interpretation of the Act and the Rules, the provisions of Section 5 (2) (a) (ii) and the proviso contained therein constitute an unreasonable restriction on the fundamental right of the petitioner company to carry on its trade and business under Article 19(1)(g) of the Constitution. To start with, Article 19(1)(g) of the Constitution does not apply to the petitioner company, which is a Corporation. Article 19(1)(g) applies only to a citizen, and a Corporation cannot be a citizen. Then, again this particular ground has not been taken, although it is generally stated that the order complained of is tantamount to an interference with the petitioner's alleged fundamental right under Article 19(1)(g) of the Constitution. Taking all the facts and circunstances into consideration, I do not see why the restriction is an unreasonable one. In this particular kind of transaction, the ultimate liability for the payment of sales tax is that of the consumer-purchaser. For purposes of facilitating the collection of taxes, it is collected from the dealer who sells. Where, however, a sale is made to a registered dealer, then payment is exempted for the time being because facility is given for entering into a chain of transactions, it being intended that the last dealer in the chain should pay. This system is plainly open to grave abuse. There is a natural tendency for a dealer to pass on the liability to others. As I have mentioned above, the system is not only open to abuse, but is in fact being grossly abused on a vast scale. All kinds of fraud and trickery to aid evasion of taxes have been detected. If, therefore, a pre-condition is imposed that a declaration form duly signed should be produced for purposes of getting exemption, it cannot be considered as an unreasonable restriction. Knowing that such a condition exists, it is for the dealer to exercise utmost caution to prevent destruction or loss of his valuable document. It cannot be said that in every case the law should provide for secondary evidence. In the circumstances of the particular case, the law may contemplate that the actual document should be produced, because it considers that the production of secondary evidence would defeat the purpose of the Act and be detrimental to its object, namely, the collection of revenue. In such a case it is not for the Courts to lay down as to what procedure should be adopted for the better collection of the revenue, nor is it for the Courts to add to the Rules ;and Regulations, or to the wordings of a Statute or the Rules made under it, and in the particular case I find myself unable to do so. It cannot be an unreasonable restriction upon a fundamental right to provide that it should be exercised without negligence.

8. The result is that although in this particular case it is quite possible that there may ensue a case of hardship, I am unable to direct the respondents to allow exemption under Section 5 (2) (a) (ii) of the Act upon secondary evidence of the issue of declaration forms, which is in reality the relief claimed. The application, therefore, fails and must be dismissed.

9. The rule is discharged, interim orders vacated; no order as to costs.


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