- (1.) This appeal by special leave arises from a judgment of the High court of Calcutta in a reference made to it under Suction 21 (J) of the Bengal Finance (Sales Tax) Act, 1941 (Act VI of 1941). That was a reference made by the Board of Revenue, West Bengal in pursuance of the directions given by the High court. After stating a case. the Board referred three questions to the High court at the instance of the assessee company. The assessee informed the High court that it did not want any answer to the third question. The High court answered questions Nos. (i) and (ii) in favour of the assessee company. Aggrieved by that order the Board of Revenue has come; up in appeal to this court.
(2.) The material facts are these: Messrs. Phelps and Co. (P) Ltd. the assessee is a company incorporated under the Indian Companies Act, 1913 having its Registered office in New Delhi. It is carrying on business, amongst other places, at Calcutta. 122 It was registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941 and was carrying on the business of tailors, drapers, out-fitters and industrial "gloves' manufactures.
(3.) In respect of the assessment for the four quarters ending on 31/03/1957 the said dealer in its claim for exemption under S. 5 (2) (a) (ii) of the Act, included the following transactions : (1) Sales to Messrs. The Indian Iron and Steel Go. Ltd. for Rs. 51,554-8-0. (2) Sales to Messrs. Indian Standard Wagon Go. Ltd. for Rs. 20,150-1-0. (3) Sales to Messrs. The Hoogly Docking and Engineering Go. Ltd. for Rs. 546-2-0. The Commercial Tax Officer, Esplanade Charge, who assessed the dealer found that the above transactions related to the sales of different types of 'hand gloves' which the purchasing dealers purchased for the purpose of the same being used by their workers while being engaged in work in the factories. He by his order, dated 4/12/1957 observed that the purchase of hand gloves could not be called as being required for the purpose of manufacture of goods for sale, and, accordingly, disallowed the dealer's claim for exemption of Rs. 72,250-11-0. That order was affirmed by the Assistant Commissioner of Commercial Taxes in appeal as well as by the Board of Revenue. Thereafter the assessee company filed a petition under S. 21 (1) of the Act asking the Board of Revenue to refer certain questions of law to the High court. The Board refused to refer those questions. Dissatisfied by the order of the Board, the dealer moved the High court of Calcutta under S. 21 (2) of the Act for direction to the Board to state a case. The High court accepted that petition and directed the Board to state a case and submit the questions that the assessee company wanted it to submit to the High court. The Board accordingly stated a case and submitted the following three questions : (I) "whether "gloves' put on by the purchasing Companies workmen engaged in hot jobs or in handling corrosive substances in the course of manufacture can be stated to have been used in the manufacture of goods for sale as understood by the provisions of S. 5 (2) (a) (ii) of the Bengal Finance (Sales Tax) Act, 1941. (Ii) Whether the item "mill stores' appearing in the certificate of registration of the Indian Iron and Steel Company Ltd. , covers "gloves'. (Iii) Whether a selling dealer claiming exemption under S. 5 (2) (a) (ii) of the Bengal Finance (Sales Tax) Act, 1941 read with Rule 27-A of the Bengal Sales Tax Rules, 1941 is required to ascertain after receipt of a declaration in Statutory form No. XXIV from a purchasing registered dealer if the tatter's certificate of registration covers the goods purchased. ";