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ZZ-3H-K ^//^<^ /^^^^ 3^^CT^ ^ ^^t/^^^^^^^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Tax Case No.50 of 2009 APPLICANT: RESPQNDENT: APB.ICANI: RESPQNDENT: APH-JCANT: RESPONDENT: Commissioner of Commereial Tax, Raipur (CG) Versus M/s Sureshchand Santosh Kumar Raipur (CG) Tax CaseNo.48 of 2009 Commissiwier of Commercial Tax, Raipur (CG) M/s Sureshchand Santosh Kumar Raipur (CG) Tax Case No.47 of2009 Commissloner @f Commeidal Tax, Ralpur (CG) Veraus Ws Sureshchand Santosh Kumar Raipur (CG) AND Tax Case No.49crf 2009 APPLICANT: RESPONDENT: Cotnmissioner of Commerciat Tax, Raipur (CG) Versus Mte Sureshchand Santnsh Kumar Raipur (CG) JUDGMENT FORCONSIDERATION Sd/- Dhirendra Mishra Judge HON'BLE SHRI PRASHANT KUMARNUSHRA, J ^ sd/- "Prashant Kumar Mishra Judge POST FORJUDGMENT ON ^-<4.3^ul— Sd/- Dhirendra Mishra Judge ,^^£SS3'^ £E?At-"u:~"^ HIGH COURT OF CHHATTISGARH AT BILASPUR Tax Case No.50 of 2009 APPLICANT: RESPQNDENT: APR-ICANT; RESPONDENT: APPUCANT: RESPONDENT: Commissioner crfCommeioial Tax, Raipur (CG) Versus M/s Sureshchand Santosh Kumar Raipur (CG) Tax Case No.48 of 2008 Commissionerof Commereial Tax, Raipur (CG) Vereus Mfe Sureshchand Santosh Kumar Raipur (CG) Tax Case No.47 of 2009 Commissioner of Commerolal Tax, Raipur (CG) Versus M/s Sureshchand Santosh Kumar Raipur (CG) AND TaxCaseNo.49of2(X» APR-ICANT: RESPONDENT: Commissionerof Commereiat Tax, Raipw (CG) Versys M/s Sureshchand Santosh Kumar Raipur (CG) Present: Shri Vinay Harit, Deputy Advocate General for the State/applicant. Shri Moolchand Jain, counsel for the respondent. Division Bench: Hon'bleShri Dhirendra Mishra & Hon'ble Shri Prashant Kumar Mishra. J<1 JUD6MIIENT (Delhrered on 33^ Aoril. 2010) The following judgment of the Court was ctelwered by Dhirendra Mishra, J. IA. "I? ./ 1. The aforesaid references are being disposed of by this common judgment as all these references have been made by Uie ChhatBsgarh Commercial Tax Tribunal (for short the Tribunal') under Section 44 (1) of the GeneralSales Tax Act, 1958 (for short the AcF) and the Tribunal has referred the following questton of law at the instance of Revenue for our opinion:- "Whether under the facts and cireumstances of the case ttie Tribunal was jusUfied in holding that 'Dhansya' (sold by Kirana and grain deaters) is exempted from payment of tax under the noBficationNo.1057-537-V-ST-Dt-7-4-1967." 2. Briefly stated facts of ttie case, as projected in the statement of thecase drawn up by the Tribunal, are that the respondent/assesse®is a registered dealer under the Act. He was carrying the business of selling Dhania at the retevant period and was engaged in Inter-State trade of the commodHy (Dhania). Heclaimed exemption under Notffication No.1057-537-V-ST-Dt-7-4-1967 (hereinafter referred to as "the Notification, 1967'). Hls claim fbr exempUon was disallowed by the tax authoriUes, however, the assessee's second appeal was alkwwd by <he Board of Rewnue and the Board of Revenue relying on the decision of the High Court in the matter of Commissioner of Sales Tax, Bhopal, M.P. Vs. Bheraji Ramlal of Raflam {(1986) 63 STC 140 (MP)}, hetd that Inter-State sales of seeds of Dhania are not Itable to tax. However, the Instant Sales Tax references have been made at the instance of Commlssioner, Sales Tax and the Tribunal has referred the aforesaid question of lawforouropinion. 3. Shri Vinay Harit, leamed Deputy Advocate General appearing for ttie Revenue would argue that from bare peiusal of Ufe Notiflcafion of 1967, it would be evident that the State in exercise of powers conferred by Sectiwi 12 of the Act exwnpted seeds, plants and bulbs of vegetables, grass, fruits and flowers other than the seeds wbteh are covered by the term "Oilseeds" specified in section 14 (vi) of the Central Sales Tax Act, 1956. The notification nowhere exempts a dealer who Is carrying interstate trade and commerce as a graln dealer and sells Dhania. The ^ ^h,..-.——^1" commodity Dhania finds place at Enfry No.41, Part-IH, ofSchedule II ofttie Act and was taxable at the rate of 8% which was subsequendy reduced to 4% vide notlfication No.A-3-19-1985(18) ST-V, dated 5th April, 1985. 4. On the other hand, Shri Moolchand Jain, tearned counsel appeatfng for the respondent would argue that the issue involved in these references has already been resolved by the Division Bench of the erstwhile State of Madhya Pradesh in the matter of Bheraji Ramlal of Ratlam (Supra), wherein it has been held that seeds of Dhania and Matar are seeds of vegetable and, therefore, subject to exemption from tax in terms of notiflcation dated 71^ April, 1967. These refersnces are arising out of the order dated 2-11-1992 passed by the Board of Revenue in second appeals. The references have been made on the application of Commissioner of Sales Tax dated 11 April, 2008. In tte meanwhile, the Revenue has accepted the ordere of the Dwision Bench of the Board of Revenue passed in assessee's own case for the assessment years 1980-81, 1981-^ and 1982-83 wherein the Board relying on the decision in the matter of Bherajl Ramtal of Ratlam (Supra) held thatthesale of Dhanla by the assessee in interstate business is also exempted from payment of sates tax. In these circumstances, the Tribunal could not have entertalned the case for reference by the Commissioner Sates Tax filed after almost 16 years of the relevant order dated 2-11-1992 of the Board of Revenue. 5. He ftirther argued that the question came up for consideration before this High Court in STR No.5 of 2003 (Commissioner of Sales Tax, Madhya Pradesh Vs. Ms Bhagirath Gopilal, Ganj Line, Rajnandgaon) and the High Court vide its order dated 8 March, 2(X)7 answered the sales tax reference in favour of the assessee and againstthe revenue and affirmed the order of Board <rf Revenue. 6 We have heard leamed counsel for tbe parties. We have perused the order of reference passed by the Tribunal. 4 7. The references have been made under SecUwi 44 (1) of the Aet on the application of Commissioner Sales Tax filed on11 April, 2008 whereby a prayer has been made before the Tribunal to refer the questions of law arising out of order of the Board dated 2-11-1992. In the application itself, it is mentioned that in respondenV assessee's own case, the Division Bench of the Board of Revenue in second appeal Nos.364-V/87, 365-V/87 and 366-V/87vide Ns order dated 1-6.1991 has decided the matter in favour of the assessee and against this order no reference 1 application under Sectkan 44 of the Act has been fited by the Department to the High Court. ]6. SecUon 44 (1) of the Act reads as under:- "44. Statement of case to High Court- (1) Within sixty days from ttie date of communication by the Tribunal of any order to a dealer or to the Commissioner under sub-section (2) of secUon 38 or sub-section (3) or sub-sectten (5) of section 39, the deater or the Commisstoner may, by applicaUon in writing accompanied, where the applicaUon is made by a deater, by a fee of one hundred rupees, require the Tribunal to refer to the High Court any question of law artsing out of such order, and where the Tribunal decides to make a reference to the High Court, it shall draw up a statement <rf the caseand refer it accordingly." 9. Leamed Tribunal has not consklered the inordinate delay of about 16 years in making an applicaUon for referring the question of taw arising out of the Board's order dated 2-11-1992 and examined e matter on merits. 10. In view of the fact that the question of law referred to us relates to and is arising out of the order dated 2-11-1992 and in the meanwhile, the State has accejrted the order oftheBoard ofRevenue passed in the case of assessee/respondent wherein identical question referred to us was answered in favour of the assessee, we are of the opinion that fte Tribunal was not justifled in entertaining the a^lteation for referenceand referred the quesUon of law foropinton offte High Court. ^\ 11. For the aforesaid reasons, we cto not deem it necessary to answer the quesUon of law referred to us by the Tribunal. The references are accordingly disposed of. Sd/- Dhirendra Mishra Judge . Sd/- "rashant Kumar Mishra Judge Barve 1 ,.'- h! 's'.i \ ^ -^l )/'