M/S. INDIAN TRADES AND INDUSTRIES CORPORATION AND ORS. Vs. SUPERINTENDENT OF TAXES AND ORS.
HIGH COURT OF GAUHATI
M/S. Indian Trades And Industries Corporation And Ors.
Superintendent Of Taxes And Ors.
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Goswami, C.J. -
(1.) THE above Civil Rules are directed against the Respondents to Show cause why the proviso to Rule 21 of the Assam Sales Tax Rules, 1947, should not be declared null and void. In the first two Civil Rules, there was an additional prayer by amendment to declare the proceedings before the Sales Tax Authority as illegal and without any authority of law inasmuch as the sales in question were effected in the course of inter -State trade or commerce. This latter point is not canvassed in the other two Rules, namely Civil Rules Nos. 164 and 316/66.
(2.) IT is enough to take the facts of the Civil Rule No. 161 of 1966 for the purpose of deciding the points raised in these Rules. The Petitioner -firm is a registered dealer under the Assam Sales Tax Act, 1947 (hereinafter called 'the Act') and its registration number is J.C.R. 1543. The Petitioner -firm carries on business of sale and supply of parachute to the Director of Supply and Transport, North -East Frontier Agency (NEFA). The Head Office of the Petitioner firm at Kanpur, on receipt of orders for supply of parachute, dispatches the goods from Kanpur by rail or other transport for delivery to NEFA Administration. There is a branch office of the Petitioner at for hat, which looks after the sale and supply of the goods. The Petitioner -firm has been submitting half yearly returns in the prescribed forms to the Superintendent of Taxes, for hat, under the provisions of the Assam Sales Tax Act and the Rules framed hereunder and were also assessed to tax by the said authority, and the firm also paid the assessed taxes. The Petitioner states that it is required to furnish returns of the total turnover on half yearly basis as prescribed under Rule 21 of the Assam Sales Tax Rules, 1947 (hereinafter referred to as 'the Rules'). That on 1 -3 -66 the Superintendent of Taxes, for hat called upon the Petitioner to submit return and pay tax up to 28 -2 -66 within 9 -3 -66 in the purported exercise of powers under the proviso to Rule 21. The Petitioner takes exception to this notice as, according to it, it could not be called upon to furnish return for a period earlier than half yearly. According to it, it was liable to submit return for a period ending 31 -3 -66 within April, 1966. The Petitioner ultimately submitted the return on 18 -3 -66 under protest and claimed exemption under Section 7 of the Act in respect of the sales of parachute made during the period from 1 -10 -65 to 28 -2 -66. The Petitioner, however, did not take any objection before the Superintendent of Taxes on the score of his want of authority to tax, alleging the sales being in the course of inter -State trade or commerce. It appears that the Superintendent of Taxes made the assessment order on 19 -3 -66 under Section 17(4) of the Act In respect of the return period up to 28 -2 -66, the notice of demand directed the Petitioner to pay the tax amounting to Rs. 55,974.44 p. on or before 23 -3 -66. It is in the above circumstances that the Petitioner obtained the rule. It is contended on behalf of all the Petitioners that the proviso to Rule 21 is beyond the power given to the State Government under Section 16, read with Section 52(2)(f) of the Act. It is further submitted that the proviso is violative of Articles 14 and 19(1)(e) of the Constitution of India. In the first two Civil Rules, there is a further contention that the sales in question are in the course of Inter -State trade and commerce within the meaning of Section 3(a) of the Central Sales Tax Act. 1956 and as such the Superintendent of Taxes had no authority to assess in respect of these sales.
(3.) REGARDING the first submission, we may read Section 16(1) of the Act which is the material provision and runs as follows:
Every registered dealer shall furnish such returns of his total turnover by such dates and to such authority as may be prescribed.
under Section 2(9) 'prescribed' means prescribed by rules made under this Act. Section 52 confers power on the State Government to make rules and the material provisions may be set out:
(1) The State Government may, subject to the condition of previous publication, make rules for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may, in particular, prescribe -
X X X
(f) the dates by which, and the authority to which returns shall be furnished;
X X X
(j) any other matter which is required to be or may be prescribed.
In exercise of the powers conferred by Section 52, the Governor made the Assam Sales Tax Rules, 1947 "for carrying out the provisions of the same Act". Since the rules have got to be made by the State Government for fixing the dates by which returns are to be furnished by a registered dealer and also as to which authority these have got to be presented. Rules 20 and 21 have been made keeping the mandate of Section 16 in view. These two Rules may be set out:
20. Every registered dealer shall furnish returns of his total turnover under Section 16 to the Superintendent in Form II.
21. The returns, during the first year of operation of the Act, shall be furnished for such period and within such times as may be notified by the Commissioner in the Official Gazette and thereafter half -yearly and within thirty days of completion of the half -year in respect of which returns are to be filed.
Provided that the Commissioner may, by order in writing direct any such dealer to submit returns for periods less than a half -year at such intervals as may be specified in the order and may likewise, at any time, modify or annul his order.;
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