ALLIED SHABIR & CO Vs. STATE
HIGH COURT OF JAMMU AND KASHMIR
Allied Shabir And Co
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(1.) THE respondent No. 1 has amplified sub rule(99) of rule -6 of the General Sales Tax Act (Jammu & Kashmir) rules 1958 vide SRO 297 dated:
16th Dec. 1992 which reads as under:
GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECRETARIAT -FINANCE DEPARTMENT NOTIFICATION Jammu the 16th Dec. 1992 SRO -297 - In exercise of the powers conferred by sub -sections(3),(4) and(5) of the section 13 of the Central Sales Tax Act, 1956 (No. 74 of 1956) the Government of Jammu and Kashmir hereby directs that in the Central Sales Tax (Jammu and Kashmir) rules 1958 at the end of sub rule (aa) of rule 6 Ëœfull stop(.)â„¢ shall be substituted by semicolon (;) and thereafter the following proviso shall be added: Provided that if the registered dealer at the time of making an application for supply of Forms has defaulted in furnishing any return or revised return together with receipted challan or challans showing payment of the tax due from him according to such return or revised return the Assessing Authority after giving him a reasonable opportunity of being heard may, for reasons to be recorded in writing, withhold the issue of such forms to him till he furnishes such return or revised return together with such receipted challan or challans. By order of the Government of Jammu and Kashmir. Sd/ - Director Finance Department.
(2.) THE registered dealers of the valley have challenged the aforementioned SRO through several writ petitions and relevant
particulars of these writ petitions are reflected in the schedule
appended to this judgment. In these petitions similar questions of law
are involved, therefore, I proceed to dispose of bunch of petitions by
this common judgment.
(3.) THE learned counsel for the respondents have defended the state action on the ground that the petitioners obtain the forms and avail of
the benefit of concessional rates of tax but are not prepare to furnish
the information which is relevant for imposing Tax. It is contented that
the Govt. has evolved an amnesty scheme as well but petitioners have not
chosen to avail of its benefit and continue to detain the forms on the
strength of interim directions passed in the writ petitions by the court
which interim directions work detrimental to the interests of the State.
Mr. Advocate General has placed reliance on commercial Tax Officer, Rudha
Bazar Vs. Bengal Poultries Ltd. (1986) 61 STC 219 in which case a
question had arisen as to whether commercial officer had the jurisdiction
to with -hold the declaration forms under rule 27 AA (2)(c) of the Bengal
Sales Tax Rules unless the returns are filed whereas in the case in hand
challenge is thrown to the impugned insertion to sub rule (aa) of rule 6
of Central Sales Tax (J&K). Rules 1958. Thus controversy is slightly
different in the case in hand and with a view to address to the
contentious legal issues same are set out hereunder for purposes of
i. The SRO is outside the scope of subsection (3), (4) and (5) of section 13 of the General Sales Tax Act 1956.
ii. The SRO impugned has imposed unreasonable restrictions which are violative of article 19(1) (g) of the Constitution of India.
It is appropriate to notice here that insertion to sub -rule (aa) of rule -6 authorises an Assessing Authority to with -hold the forms
till such registered dealer furnishes the return or revised return
together with receipted challan or challans showing payment of the tax
due from him according to the return or revised return. The SRO does not
levy any charge by itself but envisages furnishing of returns as a
condition precedent so as to prevent evasion of tax and the question
which is raised in the these petitions is whether such condition could be
imposed and to have an answer to this question it is relevant to refer to
section 13 (3) (4)(e) which reads as under:
(3) The State Government may make rules, not inconsistent with the provisions of this Act and the rules made under sub -section (1), to carry out the purposes of this Act.
(4) In particular and without prejudice to the powers conferred by sub -section (3) the State Government may make rules for all or any of the following purposes, namely: -(e) the authority from whom the conditions subject to which and the fees subject to payment of which any form of certificate prescribing under clause (a) of the first proviso to sub -section (2) of section 6 or of declaration prescribed under sub -section (1) of section 6 A or sub -section (4) of section 8 may be obtained, the manner in which such forms shall be kept in custody and records relating thereto maintained and the manner in which any such form may be used any such certificate or declaration may be furnished;
The sub -section (3) makes it amply clear that State Government has
the power, to make rules which are not inconsistent with the Act. and
(SIC) Clause (e) begins with the words the authority from which the
conditions subject to which and..... any form... may he obtained..." and
a plain reading of the rule read with sub -section (3) reveals that the
State Government has the power to impose conditions subject to
fulfillment of which forms can be issued and a condition has been
introduced by the State Government vide SRO 297 which condition is
consistent with the mandate of the Act, obviously insertion so made at
the end of sub rule (aa) of rule -6 is not incompetent. The averment of
the petitioners is otherwise also unfounded because a statue is enacted
to make the tax law workable and once the liability is fixed by the Act
the statue has to make liability effective and to achieve this object the
respondents have opted for the insertion which falls within the ambit of
section 13 (3), (4) and (5) of the General Sales Tax Act 1956.;
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