Decided on January 16,1961



- (1.) THE petitioner, which is a company, carries on business at Calcutta and Bombay, the registered office being situate in Bombay. It is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941. In paragraph 3 of the petition, it is stated that the petitioner's business consists, inter alia, of purchasing from registered dealers in West Bengal, commodities like gunnies, Hessians, sugar, tea and gold and partly selling them in West Bengal and partly dispatching them to its Bombay office for resale there. The particular grievance that has been made in this application is that in respect of the transactions which are set out in annexure "d" to the petition, the respondents are not granting to the petitioner the requisite declaration forms, without which, the petitioner cannot get exemption from the payment of sales tax. The question of declaration forms arises under section 5 of said Act. Briefly speaking, in the case of sales to registered dealers, the transaction would be exempted from being included in the taxable turnover, 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 the prescribed particulars, in a prescribed form, obtainable from the prescribed authority, is furnished, in the prescribed manner, by the dealer who sells the goods. The petitioner states that in respect of the transactions mentioned in annexure "d", being sales between registered dealers the petitioner company asked the respondents to issue the requisite declaration forms but they have failed and neglected to do so. So far as this point is concerned, assuming that what the petitioner states is true, there is no defense. In Shanti Gopal Mukherjee v. R. K. Mukherjee, judgment dated 18th March, 1957 in. Matter No. 26 of 1955, I have held that under the rules as they stand at present, the Commercial Tax Authorities, upon being satisfied, that there were transactions between registered dealers, must issue declaration forms asked for, subject of course to their availability in a physical sense. If there is any apprehension of any misuse of declaration forms, there is a provision for safeguarding the same, namely, section 7 (4a) (ii) of the said Act, which enables the Commercial Tax Authorities to impose an order for security for the proper use of declaration forms. I have held that where security is not imposed, the Commercial Tax Authorities cannot arbitrarily withhold declaration forms.
(2.) COMING now to the facts of this case, Mr. Mazumdar, appearing on behalf of the respondents, has pointed out two things. He points out that the question of taxable turnover comes under section 5 (2) of the said Act. It is provided therein that the taxable turnover will not include sales to a registered dealer of certain class of goods, provided that declaration forms are produced. He points out, however, that by virtue of Bengal Finance (Sales Tax) Amendment Act, 1959 the provisions of section 5 (2) (a) (ii) have been altered. The relevant alteration is as follows :- " (ii) sales to a registered dealers-all goods of the class or classes specified in the certificate of registration of such dealer, as being intended for re-sale by him, in West Bengal, or for use by him in the manufacture in West Bengal of goods for sale or for use by him in the execution of any contract in West Bengal. "
(3.) THE words underlined have been added by the Amendment. Therefore, after this Amending Act came into operation on the 28th of October, 1959 the sales that may be the subject matter of declaration forms are sales within the State of West Bengal. In respect of the transactions concerned in this application, the sales were effected before the Amending Act came into operation, but whether they were sales within West Bengal or outside, is a matter of controversy. The Amending Act is not of course retrospective, but after it came into operation, all future transactions will have to be governed by it. The position is more or less accepted by both sides, namely, that prior to the amendment, declaration forms must be issued in respect of transactions mentioned in section 5 (2) (a) (ii) as it stood before the amendment. After the amendment, however, the declaration forms will be confined to transactions or sales inside West Bengal. The second thing that Mr. Mazumdar has pointed out is that upon the question as to whether the sales concerned in this application were sales within of outside West Bengal there is a controversy. With regard to this point, however, the position is quite clear. With regard to the pre amendment sales, no question at all arises as to whether the sales were in West Bengal or outside, because the amendment is not retrospective. Before the amendment declaration forms had to be granted with respect to all sales, whether inside or outside West Bengal. Therefore, the only thing to do is to check up whether the transactions which are set out in annexure "d" are real transactions and whether they can appropriately be the subject matter of declaration forms and whether they were pre amendment transactions. If they are not, then it will have to be determined as to which transactions were sales in West Bengal and which of them were sales outside the State. The declaration forms will only be issued in that event, with regard to those sales which took place inside the State. The petitioner originally asked for 400 declaration forms. During the pendency of this application, certain interim orders were made and the authorities were granting about 10 forms each week to the petitioner.;

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