Case: M/S. Ram Narain Sons Ltd Vs. Asst. Commissioner Of Sales Tax And Others(And Other Case

Bhagwati, J.1. These 3 appeals with certificate under article 132(1) of the Constitution involve the interpretation of the proviso to article 286(2) and raise a common question as to whether that proviso also saves the transactions of sale or purchase covered by the Explanation to article 286(1)(a) from the ban imposed therein.2. The Appellants in Civil Appeal No. 132 of 1955 are Messrs. Ramnarain Sons Ltd., a firm registered as a "dealer" under the Central Provinces and Berar Sales Tax Act, 1947, and carrying on business at Amravati and at other places in Madhya Pradesh. After the Cotton Control Order, 1949, came into force on the 12th September 1949, the Appellants entered into agreements with several mills situated outside Madhya Pradesh by which they undertook to purchase kapas in the various markets in Madhya Pradesh as their agents on their account and on their behalf. The kapas after purchase was to be ginned and pressed into bales and sent to the mills. All the expenses involved in the process were to be borne by the mills which were also to be credited with the sale proceeds of the cotton seeds and the Appellants were only entitled to commission on a percentage basis. The Appellants worked as such agents for the period 1st October, 1949, to 30th September, 1950. By his order dated the 30th June, 1953 the Assistant Commissioner of Sales Tax, Amravati Respondent No. 1, included the transactions valued at Rs. 72, 86, 454-5-10 with the said mills in the Appellants turnover and ordered the Appellants to pay Rs. 1, 13, 850-13-6 as sales tax on the said transactions. The Appellants filed an appeal to the Commissioner of Sales Tax, Madhya Pradesh, Respondent No. 2 on the 30th July, 1953. The appeal was, however, entertained by the Deputy Commissioner of Sales Tax, Madhya Pradesh, Respondent No. 3, who ordered the Appellants to pay Rs. 25, 000/- by the 31st August, 1953. The Appellants thereupon filed a petition under Article 226, being Misc. Petition No. 265 of 1953, in the High Court of Judicature at Nagpur, asking inter alia for the quashing of the order of 30th June, 1953, passed by Respondent No. 1 and for consequential reliefs. The Respondents filed a return denying the contentions of the Appellants and praying for the dismissal of the petition with costs.The appellants in Civil Appeal No. 133 of 1955 are the Eastern Cotton Company, a firm registered as a "dealer" under the Central Provinces and Berar Sales Tax Act, 1947, and carrying on business at Amravati and at other places in Madhya Pradesh. They also, during the period 1st October, 1949 to 30th September, 1950, worked as agents of certain mills situated outside Madhya Pradesh, procured kapas for them in Madhya Pradesh and sent it to the mills for consumption outside the State. By his order dated the 9th September, 1953, the Respondent No. 1 included the transactions valued at Rs. 33, 47, 405-5-6 with the said mills in the Appellants turn-over and ordered the Appellants to pay Rs. 52, 303-4-0 as tax on the said transactions. These Appellants also filed a petition under article 226, being Misc. Petition No. 348 of 1953, in the High Court of Judicature at Nagpur for quashing the order dated the 9th September, 1953 passed by Respondent No. 1 and for consequential reliefs. The Respondents filed a return denying their contentions.3. The Appellants in Civil Appeal No. 137 of 1955 are the firm, Ramdas Khimji Brothers, Bombay, registered as a "dealer" under the Central Provinces and Berar Sales Tax Act, 1947, and carrying on business as cotton dealers in Madhya Pradesh. During the period 1st October, 1950 to 30th September, 1951, the Appellants sold cotton worth Rs. 6, 01, 949-1-9 to various persons outside Madhya Pradesh. The Cotton was delivered to the buyers for consumption outside Madhya Pradesh as a direct result of such sales. By his order dated the 29th December, 1952, the Sales Tax Officer, Amravati, in the assessment of the Appellants for the same period, included the said transactions in the Appellants turn-over and assessed sales tax thereon. The Appellants filed an appeal to Respondent No. 1 but the same was dismissed by an order dated the 10th July, 1953. The Appellants filed on 22nd August, 1953, a revision before the Commissioner of Sales Tax, Madhya Pradesh. The Appellants also filed a petition under Article 226, being Misc. Petition No. 274 of 1953, in the High Court of Judicature at Nagpur, asking for a writ of certiorari quashing the order of Respondent No. 1 passed by him in Sales Tax Appeal No. 13-A dated the 10th July, 1953, and for consequential reliefs. The Respondents filed a return denying the contentions of the Appellants and asking that the petition be dismissed with costs.These petitions came up for hearing and final disposal before the High Court of Judicature at Nagpur along with Misc. Petitions No. 288 of 1953 and No. 132 of 1954. A considered judgment was delivered in Miscellaneous Petition No. 132 of 1954 and the reasoning contained therein governed the decision in the connected Petitions Nos. 265, 274 and 348 of 1953. The High Court held that the Explanation II to section 2(g) of the Central Provinces and Berar Sales Tax Act, 1947, as amended by the Central Provinces and Berar Act XVI of 1949 having been declared invalid from its inception by the High Court in Messrs. Shriram Gulabdas v. Board of Revenue (I.L.R. 1953 Nagpur 332) and by this Court in 1954 S.C.R. 1122, the original Explanation remained in force until the 1st April, 1951, when it was amended by the Madhya Pradesh Act IV of 1951. Explanation II originally enacted was in the terms following :-"Notwithstanding anything of the contrary in the Indian Sale of Goods Act, 1930, the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as defined in that Act in respect thereof is made, shall wherever the said contract of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar".4. The Appellants contended that this Explanation offended article 286(1)(a) read with the Explanation to the same and the State of Madhya Pradesh was, therefore, not entitled to tax the transactions of sale in which goods had actually been delivered as a direct result of such sale for the purpose of consumption outside Madhya Pradesh. The Respondents, on the other hand, contended that the said Explanation was protected until the 31st March, 1951, by the Sales Tax Continuation Order No. 7 of 1950 issued by the President on the 26th January, 1950, under the proviso to article 286(2).The High Court was of the opinion that the original Explanation was validly enacted as the assent of the Governor-General to the enactment was given on the 23rd May, 1947, and that under that Explanation the tax prior to the commencement of the Constitution was lawfully levied on the sales of goods wherever the contracts of sale took place if the goods were actually in the State at the time the contracts of sale were made. This power could be exercised by the State even if the sales took place during the course of inter-State trade or commerce and the goods were delivered as a direct result of the sales for the purpose of consumption outside the State. This was because the situs of the goods constituted a sufficient nexus between the transactions and the taxing State which was the foundation for taxation prior to the commencement of the Constitution. This position continued until the commencement of the Constitution and on the 26th January, 1950, the President issued the Sales Tax Continuation Order No. 7 of 1950 in exercise of the powers conferred by the proviso to article 286(2). The sales in question had taken place in the course of inter-State trade or commerce and accordingly they were covered by article 286(2) and would, therefore, be liable to tax even after the commencement of the Constitution by virtue of the Presidents order. Reliance was further placed on the majority judgment of this Court in The State of Bombay v. The United Motors (India) Ltd. (1953 S.C.R. 1069) where it was held that the transaction vis-a-vis the delivery State lost its inter-State character if it fell within the Explanation to article 286(1)(a) and was accordingly made liable to taxation by the delivery State. So far, however, as the exporting State was concerned, it retained its character of an inter-State transaction and would not, therefore, be liable to taxation by that State, vide article 286(2). The Presidents order, however, removed this ban and the exporting State was entitled to tax the transaction by virtue of the power derived by it from the same. On a construction of the relevant provisions of article 286(1) and article 286(2) the High Court was of the opinion that it would be making the proviso to article 286(2) nugatory if it was held that article 286(1) overrides it and takes away the taxing power of all States in inter-State trade or commerce except the delivery State. The High Court accordingly dismissed the petitions with costs.The learned Attorney-General appearing for the Appellants before us contended that so far as the post-Constitution period is concerned, the position is governed by our judgment in The Bengal Immunity Co. Ltd. v. The State of Bihar delivered on the 6th September, 1955. He urged that the bans imposed on the powers of the State Legislatures to levy taxes on the sale or purchase of goods in the several clauses of article 286 are independent and separate and that the transactions of sale or purchase referred to in the various clauses must be looked at from different view points. Even if a transaction might fall within the category of inter-State sale or purchase and the Presidents order under the proviso to article 286(2) might enable the State to levy any tax on such sale or purchase which was being lawfully levied by the State immediately before the commencement of the Constitution, such transaction had also to surmount the ban imposed under article 286(1)(a) and the Explanation thereto so that, if, as a direct result of such sale, the goods were actually delivered for the purpose of consumption in another State, the exporting State (to use the phraseology of the Nagpur High Court) or the title-State (to use the phraseology adopted in some of the judgments in The Bengal Immunity Co.s Appeal) would not be entitled to levy a tax on such sale the transaction being fictionally outside the State by reason of the Explanation and therefore coming within the ban of article 286(1)(a).5. It was, however, urged on behalf of the State of Madhya Pradesh that the Presidents order not only saved the transactions from the ban of article 286(2) but also from the ban of article 286(1)(a), because the transactions covered by the Explanation to article 286(1)(a) were of the same category as transaction covered by article 286(2) and were all in the course of inter-State trade or commerce. It was further urged that if the transactions covered by the Explanation to article 286(1)(a) were not saved from the ban by the Presidents order, the whole intention of the Constitution-makers in maintaining the status quo qua the taxes on sales or purchases of goods which were being lawfully levied by the State immediately before the commencement of the Constitution would be frustrated, because the transactions covered by the Explanation to article 286(1)(a) being necessarily in the course of inter-State trade or commerce the Presidents order would be rendered nugatory and the exporting State or the title State would be restrained from levying tax on such transactions in spite of the ban having been lifted by the Presidents order.We are unable to accept this contention. As held by the majority Judges in The Bengal Immunity Co.s Appeal, the bans imposed by article 286 on the taxing powers of the States are independent and separate and each one of them has to be got over before a State Legislature can impose tax on transactions of sale or purchase of goods. These bans have been imposed from different view-points, and, even though the transactions of sale or purchase may in conceivable cases overlap as far as these different view points are concerned, each of those bans is operative and has to be enforced. So far as article 286(1)(a) is concerned, the Explanation determines by the legal fiction created therein the situs of the sale in the case of transactions coming within that category and when a transaction is thus determined to be inside a particular State it necessarily becomes a transaction outside all other States. The only relevant enquiry for the purposes of article 286(1)(a), therefore, is whether a transaction is outside the state and once it is determined by the application of the Explanation that it is outside the State it follows as a matter of course that the State with reference to which the transaction can thus be predicated to be outside it can never tax the transaction. This ban is effective independently of the fact that the transaction may also have taken place in the course of inter-State trade or commerce or with reference to goods as have been declared by Parliament by law to be essential for the life of the community. The ban imposed under article 286(2) is an independent and separate one and looks at the transactions entirely from the point of view of their having taken place in the course of inter-State trade or commerce. Even if such transactions may also fall within the category of transactions covered by article 286(1)(a) and the Explanation thereto or article 286(3), the moment article 286(2) is attracted by reason of the transactions being in the course of inter-State trade or commerce, the ban under article 286(2) operates and such transactions can never be subject to tax at the instance of a State Legislature except in so far as Parliament by law may otherwise provide or such power of taxation is saved by the Presidents order contemplated in the proviso. The ban under article 286(2) may be saved by the Presidents order but that does not affect or lift the ban under article 286(1)(a) read with the Explanation.Apart from the construction thus put upon the several clauses of article 286 by the majority of the Judges in The Bengal Immunity Co.s Appeal as above, the terms of the Proviso itself make it abundantly clear that the proviso is meant only to lift the ban under article 286(2) and no other. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. Even if the non-obstante clause : "Notwithstanding that the imposition of such tax is contrary to the provisions of this clause" : had not been enacted in the proviso, the proviso could only have been construed as operating upon the field enacted in article 286(2) and could not be extended to any of the other provisions of article 286. The non-obstante clause, however, makes it abundantly and further clear and states in explicit terms that it is enacted only with reference to "this clause", i.e., article 286(2). The Presidents order may direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of the Constitution was to continue to be levied until 31st March, 1951, but the effect of that order was to raise the ban in so far as it was imposed by the provisions of "this clause". The Presidents order, therefore, only lifted the ban in so far as the transactions took place in the course of inter-State trade or commerce and could not be projected into the sphere of any other clause of article 286. It had, therefore, not the effect of lifting the ban which was imposed by article 286(1)(a) and the Explanation thereto, even though the transactions covered by the Explanation to article 286(1)(a) by and large fell within the category of transactions which took place in the course of inter-State trade or commerce. The ban imposed by article 286(1)(a) was independent and separate and could not be lifted by the Presidents order which had operation only in regard to the inter-State character of the transactions. The moment it was determined that the transactions were outside the State by virtue of the Explanation to article 286(1)(a) the ban imposed by article 286(1)(a) attached to the same and could not be lifted by the Presidents order which operated only on the inter-State character of the transactions and saved only those inter-State transactions which did not come within the Explanation.If the contention urged on behalf of the State of Madhya Pradesh is accepted it would mean that we should re-write or amend the proviso to article 286(2) in order to effectuate the supposed intention of the Constitution-makers. The supposed intention of the Constitution-makers was alleged to be to preserve to the State all the taxes on sale or purchase of goods which were being lawfully levied by them immediately before the commencement of the Constitution by having resort to the territorial connection or nexus theory. We have no evidence before us of this supposed intention of the Constitution-makers. Whatever their intention was can only be gathered from the language which they have used and where the language is plain there is no scope whatever for speculation in that behalf. When the Constitution-makers themselves used the words "Notwithstanding that the imposition of such a tax is contrary to the provisions of this clause" it would not be legitimate for us to go behind the plain words and try to read into the proviso something which would involve either a deletion of the non-obstante clause or a re-writing thereof as suggested. Whatever be the effect of our judgment on the treasuries of the exporting or title-State we cannot assist them by reading something into the proviso which is not warranted by any canon of construction. The proviso has reference only to article 286(2) and cannot be projected into any other clause of article 286.6. The untenability of the contentions of the Respondents will be clear from the following illustration :-Suppose the goods are in the State of Madhya Pradesh at the time the contracts of sale of those goods are made in, say, the State of Bombay. Suppose further that the property in the goods has by reason of such sales passed in the State of Bombay but the goods as a direct result of such sales have been delivered for consumption in the State of Madras. According to the Respondents, the Presidents order made under the proviso to article 286(2) saves the transactions from the ban of article 286(1)(a) read with the Explanation. Then the State of Madras will be able to tax by virtue of article 286(1)(a) read with the Explanation or on the nexus theory by reason of the goods being delivered there for consumption; the State of Bombay will be able to tax because the title to the goods passed there; and the State of Madhya Pradesh will also be able to tax under the Explanation II to section 2(g) of the Act because the goods were in the State of Madhya Pradesh at the time when the contracts of sale were made in the State of Bombay. Nobody will say that the Constitution - makers intended to perpetuate multiple taxation of this kind and yet that will be the result if we were to accede to the arguments advanced by the Respondents.The result, therefore, is that so far as the post-Constitution period is concerned the ban which is imposed by article 286(1)(a) and the Explanation thereto cannot be removed by the Presidents order which was issued under the proviso to article 286(2) and the High Court was in error when it construed the proviso to article 286(2) as projecting into the field of article 286(1)(a) and lifting the ban imposed therein.

Decision reasoning: 1[ds]We are unable to accept this contention. As held by the majority Judges in The Bengal Immunity Co.s Appeal, the bans imposed by article 286 on the taxing powers of the States are independent and separate and each one of them has to be got over before a State Legislature can impose tax on transactions of sale or purchase of goods. These bans have been imposed from differentand, even though the transactions of sale or purchase may in conceivable cases overlap as far as these different view points are concerned, each of those bans is operative and has to be enforced. So far as article 286(1)(a) is concerned, the Explanation determines by the legal fiction created therein the situs of the sale in the case of transactions coming within that category and when a transaction is thus determined to be inside a particular State it necessarily becomes a transaction outside all otherban imposed under article 286(2) is an independent and separate one and looks at the transactions entirely from the point of view of their having taken place in the course oftrade or commerce. Even if such transactions may also fall within the category of transactions covered by article 286(1)(a) and the Explanation thereto or article 286(3), the moment article 286(2) is attracted by reason of the transactions being in the course oftrade or commerce, the ban under article 286(2) operates and such transactions can never be subject to tax at the instance of a State Legislature except in so far as Parliament by law may otherwise provide or such power of taxation is saved by the Presidents order contemplated in the proviso. The ban under article 286(2) may be saved by the Presidents order but that does not affect or lift the ban under article 286(1)(a) read with the Explanation.Apart from the construction thus put upon the several clauses of article 286 by the majority of the Judges in The Bengal Immunity Co.s Appeal as above, the terms of the Proviso itself make it abundantly clear that the proviso is meant only to lift the ban under article 286(2) and no other. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. Even if theclause : "Notwithstanding that the imposition of such tax is contrary to the provisions of this clause" : had not been enacted in the proviso, the proviso could only have been construed as operating upon the field enacted in article 286(2) and could not be extended to any of the other provisions of article 286. Theclause, however, makes it abundantly and further clear and states in explicit terms that it is enacted only with reference to "this clause", i.e., article 286(2). The Presidents order may direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of the Constitution was to continue to be levied until 31st March, 1951, but the effect of that order was to raise the ban in so far as it was imposed by the provisions of "this clause". The Presidents order, therefore, only lifted the ban in so far as the transactions took place in the course oftrade or commerce and could not be projected into the sphere of any other clause of article 286. It had, therefore, not the effect of lifting the ban which was imposed by article 286(1)(a) and the Explanation thereto, even though the transactions covered by the Explanation to article 286(1)(a) by and large fell within the category of transactions which took place in the course oftrade or commerce. The ban imposed by article 286(1)(a) was independent and separate and could not be lifted by the Presidents order which had operation only in regard to thecharacter of the transactions. The moment it was determined that the transactions were outside the State by virtue of the Explanation to article 286(1)(a) the ban imposed by article 286(1)(a) attached to the same and could not be lifted by the Presidents order which operated only on thecharacter of the transactions and saved only thosetransactions which did not come within the Explanation.If the contention urged on behalf of the State of Madhya Pradesh is accepted it would mean that we shouldor amend the proviso to article 286(2) in order to effectuate the supposed intention of theThe supposed intention of thewas alleged to be to preserve to the State all the taxes on sale or purchase of goods which were being lawfully levied by them immediately before the commencement of the Constitution by having resort to the territorial connection or nexus theory. We have no evidence before us of this supposed intention of theWhatever their intention was can only be gathered from the language which they have used and where the language is plain there is no scope whatever for speculation in that behalf. When thethemselves used the words "Notwithstanding that the imposition of such a tax is contrary to the provisions of this clause" it would not be legitimate for us to go behind the plain words and try to read into the proviso something which would involve either a deletion of theclause or athereof as suggested. Whatever be the effect of our judgment on the treasuries of the exporting orwe cannot assist them by reading something into the proviso which is not warranted by any canon of construction. The proviso has reference only to article 286(2) and cannot be projected into any other clause of articlewill say that the Constitutionmakers intended to perpetuate multiple taxation of this kind and yet that will be the result if we were to accede to the arguments advanced by the Respondents.The result, therefore, is that so far as theperiod is concerned the ban which is imposed by article 286(1)(a) and the Explanation thereto cannot be removed by the Presidents order which was issued under the proviso to article 286(2) and the High Court was in error when it construed the proviso to article 286(2) as projecting into the field of article 286(1)(a) and lifting the ban imposedthese contentions, though they are also relevant to theperiod were not specifically pressed before us because the argument based on the proviso to article 286(2) was considered sufficient to set aside the assessment for that period. They would, however, appropriately arise and be urged by the appellants when the liability to assessment for theperiod is to be determined and if we were to determine that liability we would have to deal with the same. The necessity for doing so is, however, obviated by reason of the fact that the assessment is one composite whole relating to theas well as theperiods and is invalid in toto. There is authority for the proposition that when an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid inral of Madhya Pradesh did not seriously contest this position and the result, therefore, is that the order of assessment dated the 30th June, 1953, in Civil Appeal No. 132 of 1955 and the order of assessment dated the 9th September, 1953, in Civil Appeal No. 133 of 1955 are liable to be setcontention of the learnedof Madhya Pradesh is untenable. So far as direct supplies to selling agents on orders and direct supplies to merchants on orders covered by items (a) and (b) above are concerned, it was found that these supplies were made to the merchants buying the goods on commission basis or profit on their previous orders, instructions or indents which were either in printed forms or in ordinary letters and the sale prices were realised by sending bills and railway receipts through some scheduled banks. The very fact that the bills and the railway receipts were sent through the scheduled banks went to show that the petitioners reserved the right of disposal of goods covered by those railway receipts and the property in the goods passed in the State of Uttar Pradesh only after the relative bills were either accepted or honoured by the purchasers and the railway receipts delivered by the scheduled banks to them. It is clear, therefore, that in those cases the sales were completed in the State of Uttar Pradesh and were notsales or "inside sales" qua the State of Madhya Pradesh. As regards the direct supplies to destinations other than branches or depots but accounted for against the branches or depots being item (c) above, it was found that the petitioners despatched the goods and billed them to depot managers who were responsible for the collection of the orders and then the railway receipts and bills were sent there. The managers prepared other bills adding incidental or other charges and delivered the railway receipts to the customers to whom the goods were sent from the State of Madhya Pradesh. Here also the despatches of the goods were made from the State of Madhya Pradesh by the petitioners to their depot managers and it was the depot managers who in their turn prepared and submitted their own bills and handed over the railway receipts to the respective customers appropriating the goods themselves to the contracts of sale which had been entered into by them with the latter and completing the sales in the State of Uttar Pradesh. These transactions also were, therefore, sales effected in the State of Uttar Pradesh and did not fall within the category ofsales or "inside sales" qua the State of Madhya Pradesh.The direct supplies to Stations or destinations having branches or depots owned by the proprietors of the firm, Kanpur, Bombay, Lucknow and Faizabad being item (d) above, also were outside sales qua the State of Madhya Pradesh inasmuch as the branch managers asked the petitioners to send stocks of goods to execute the orders which they had obtained from the customers to make their own supplies to them. As a matter of fact it was found that several consolidated indents were placed by the depot managers with the petitioners in respect of the previous orders which had been collected by them and the petitioners supplied the goods to the depots or branches in pursuance of such indents. If this was the true position qua these supplies, these sales also were completed in the State of Uttar Pradesh by the depots or branches supplying the goods in their turn to several customers. There could be no sales as such between the petitioners on the one hand and their depots or branches on the other hand and the State of Madhya Pradesh could certainly not be at all in a position to tax the same.12. The whole theory, therefore, of "inside sales" falls to the ground and the only thing which we are left with is that these transactions weretransactions in which as a direct result of such sales the goods were actually delivered for the purpose of consumption in the State of Uttar Pradesh. The Explanation to article 286(1)(a) determined the State of Uttar Pradesh to be the State in which the sales took place and which alone was entitled to tax these transactions, the State of Madhya Pradesh becoming an "outside" State for the purpose.13. Apart from the ban imposed on the State of Madhya Pradesh under article 286(1)(a) and the Explanation thereto, these transactions were also in the course oftrade or commerce and were hit by the ban of article 286(2). The Presidents order no doubt lifted that ban but was not competent to lift the ban under article 286(1)(a) and the Explanation thereto with the result that in spite of that order the State of Madhya Pradesh was not in a position to impose a tax on these transactions during theperiod.The assessment of these transactions to tax for theperiod, therefore, is invalid and cannot be sustained. The assessment, moreover, is a composite one covering theperiod as well. The case, therefore, falls within our judgment in Civil Appeals Nos. 132, 133 and 137 of 1955 just delivered, and following the reasoning contained therein, we are of the opinion that the order dated the 14th July, 1954, made by the Deputy Commissioner, Sales Tax, Madhya Pradesh, Respondent No. 3, in Sales Tax Appeal No.should be set aside.