.April 21

SUPREME COURT REPORTS

STATE OF ORISSA

v .

M.A. TULWCH AND CO.

[1964}

[K. SUBB~ RAO, J. C. SHAH AND S. M. SIKR•, JJ.] Sales Tax-Sale to Registered deale.r-Claim for deduction- Production of declaratio71. under r. 27(2) if obligatory-Orissa Sales Tax Act, 1947 (Orissa 14 of 1947), s. 5(2)(a) (ii), Orissa Sales;

Tax Rules, 1947 r. 27(2)-0rissa Sales Tax (Amendment} Act (Orissa 10 of 1957).

Assessment orders were passed by the Sales Tax Officer allowing the deductions of two amounts claimed by the respondent-dealer under s. !>(2)(a)(ii) of the Orissa Sales Tax Act in: respect of goods sold to a registered dealer. The respondentdealer filed appeals to the Assistant Collector Sales Tax, challenging the assessment on grounds which were not relevant and against those decisions revisions were filed by the dealer. While the revisions were pending the Orissa Sales Tax Act was amended by Orissa Sales Tax (Amendment) Act (Orissa Act, 10' of 1957) with the result that revisions were treated as appeals to the Sales Tax Tribunal, and it enabled the Government to file cross-objections. In pursuance, the State filed cross-objections challenging the deductions on the ground that the dealer had not produced any declaration as required under r. 27(2) of the Orissa Sales Tax Rules, 1947. The Tribunal upheld this objection and directed that fresh assessments be made.

On statement of the case, the High Court answered that the assessing officer was not wrong in allowing the deductions.

On appeal by special leave).

Held: (i) There is nothing in s. 5(2)(a) (ii) itself that disentitles a selling dealer to a deduction, but if the contingency provided in the proviso occurs, then the price of goods is included in the taxatle turnover of the buying dealer.

(ii) The production of a declaration under r. 7(2) is not always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to tring the transaction w1thin the scope of s. 5(2)(a)(ii). Rule 27(2) must be reconciled with the section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales-tax Officer to be satisfied that, in fact. the certificate of registration of the buying dealer contains the requisite statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in r: 27(2)~

before being entitled to a deduction.

Member, Sales-tax Tribunal, Orissa v. M/s. S. Lal & Co.

(1961) 12 S.T.C. 25, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 507-508 of 1963.

Appeal by special leave from the judgment and order dated November 4, 1950, of the Orissa High Court in Special Jurisdiction Cases Nos. 38 and 39 of 1958.

R. Ganapathy Iyer and R. N. Sachthey, for the appellant (in both the appeals). ·

B. Sen and S. N. Mukherjee, for the respondents (in both 1961 the appeals).

Staie of on ...

April 21, 1964. The Judgment of the Court was delivered JI.A.Tu~'oclrnndCo. by

SJKRI. J.-The respondent, hereinafter referred to as the the dealer, filed a return for the quarter ending June 30, 1951. under the OriGsa Sales Tax Act (Orissa Act XIV of 1947) (hereinafter referred to as the Act). He claimed a deduction of Rs. 2,40,000/- under s. 5(2)(a)(ii) in respect of the goods sold to a registered dealer, named Mis. Lal & Co. Ltd., BA

1335. Similarly, for the quarter ending September 30. 1951, he claimed a deduction of Rs. 15,677 JI/ 3.

By two assessment orders passed under s. 12(2) of the Act, the Sale;> Tax Officer, Cuttack III circle, Jaipur, Orissa, determined the tax payable allowing the deduction of Rs. 2,40.000 /- and Rs. 15,677/1/3, under s. 5(2)(a)(ii). The dealer filed appeals to the Assistant Collector, Sales Tax, challenging the asses;;.

ment on grounds which are not relevant. The dealer later filed revisions against the decision of the Assistant Collector.

While the revisions were pending, the legislature amended the Orissa Sales Tax Act, in 1957, by Orissa Sales Tax <Amendment) Act (Orissa Act XX of 1957). The effect of this amendment was that revisions were treated as appeals to Sales Tax Tribunal, and it enabled the Government to file croos-objections. The State of Orissa, in pursuance of this amendment, filed memorandum of cross-objections challenging the deduction of Rs. 2,40,000/- and Rs. 15,677 JI /3, on the ground that the dealer had not produced any declaration, as required under r. 27(2) of the Orissa Sales Tax Rules, 1947, as evid.nc ed from the Check Sheet kept on record. The Tribunal upheld this objection and directed that freiih assessments be made.

Certain other questions were raised before the Tribunal by the dealer, but as nothing turns on them as far as these appeals are concerned, they are not being mentioned. The Tribunal stated a case to the High Court and one of the questions

eferred. to was "hether the asseiising officer was not wrong m allowing deducl!on of Rs. 2,40,000/- for the quarter ending on•30-6-51 and Rs. 15,6771113 for the quarter ending on 30-9-51. from the respective gross turnover of the applicant." The High Court, following its earlier decision in Member, Sales-tax Tribunal, Orissa v. Messrs S. Lal & Co. Limited(')

anrswered the question in the affirmative. The State of Orissa having obtained special leave from this Court, these appeals are now before us for disposal.

Mr.Ganapathy Iyer, on behalf of the State of Orissa, has contended before us that it is clear that r. 27(2) was not complied with, and, therefore, the Sales Tax Officer was wrong

( 1) (1961) 12 S.T.C. 25.

Silri, J.

~ in. allowing the said deduction. The answer to the question

.fJIJIU of °""" referred depends on the correct interpretation of s. 5(2)(a)(ii),

m ... ~~-' _, 0 . and r. 27(2). They read thus:- Jr.A. , na- O.

.8ilw1, J. "s. 5(2)(a)(ii)-sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration,. as being intended for resale by him in Orissa and on sales to a registered dealer of con tainers or other materials for the packing of such goods.

Provided that when such goods are used by the registered dealer for purposes other than those speeified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover." "Rule 27(2). Claims for deduction of turnover under sub-clause (ii) of clause (a) of sub-section (2) of section 5- A dealer who wishes to deduct from his gross turnover on sales which have taken place in Ori8sa the amount of a sale on the ground that he is entitled to make such deduction under sub-clause (ii) of clause (a) of sub-section (2) of section 5 of the Act, shall produce a copy of the relevant cash receipt or bill according as the sale is a cash sale or a sale on credit in respect of such sale and a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealer's certificate of registration as being required for resale by him or in the execution of any contract: Provided that no dealer whose certificate of registration has not been renewed for the year during which the purchase is made shall make such a declaration and that the selling dealer shall not be entitled to claim any deduction of sales to such a dealer." It ill plain from the terms of s. 5(2)(a)(ii) that a selling dealer is entitled to a deduction in respect of sales to a registered dealer of goods, if the goods are specified in the purchasing dealer's certificate of registration as being intended for re-sale by him in Orissa. No other condition is imposed by the above r, ection. The proviso deals with consequences that follow if the purchasing dealer uses them for purposes other than those specified in his certificate of registration, and directs that, in that event, the price of goods so utilised shall

.. '

be included in his turnQIVer. Therefore, there is nothing in 1964

the section i16eli that disentitles a selling dealer to a deduction, Stale of Orri•sa but if the contingency provided in the proviso occurs, then H..A Tu~ ndO the price of goods is includc; d in the taxable turnover of the _ 0 0 • buying dealer. But Mr. Ganapathy Iyer says, be it so, but Sikri, J. the rule making authority is entitled to make rules for carrying out the purposes of the Act, and r. 27(2) is designed to ensure that a buying dealer's certificate of registration does, in fact, mention that the goods are intended for resale by him, and for that purpose it has chosen one exclusive method of proving the fact before a Sales Tax Officer. He further urges that no other method of proving that fact is permissible. Rule 27(2) is mandatory and if there is breach of it the selling dealer is not entitled to deduction. The learned counsel for the respondent, on the other hand, contends that r. 27(2) is directory.

He points out that the word 'shall' should be read as 'may', in the context. He further says that supposing the selling dealer brought the original certificate of registration of a buying dealer and produced it before the Sales Tax Officer, according to the appellant, this would not be enough, but this could never have been intended. In our opinion, r. 27(2) must be reconciled with the section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales Tax Officer to be satisfied that, in fact, the certificate of registration of the buying dealer contains the requisite statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in r. 27(2), before being enti tied to a deduction.

We are, therefore, of the opinion that the High Court came to a correct conclusion. The High Court is correct in holding that the production of a declaration under r. 27(2) is not always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of s. 5(2)(a)(ii) of the Act In this case, the Sales Tax Officer was satisfied by a mere statement of the dealer and it has not been shown that in fact the registration certificate of the buying dealer, Mis S. Lal & Co., did not contain the statement that the goods were intended for resale by him in Orissa.

The appeais accordingly fail and are dismissed with costs. One set of hearing fee.

Appeat~ dismissed .