GULATI, J. - (1.) AT the instance of the Commissioner of Sales Tax, U.P., Lucknow, the Additional Judge (Revisions), Sales Tax, Gorakhpur, has made this reference under section 11(3) of the U.P. Sales Tax Act on the following question of law : "Whether the sales of foodgrains made during the period from 1st October, 1964, to 31st March, 1965, be also taken into account for determining the turnover of foodgrains under section 3 of the U.P. Sales Tax Act ?"
(2.) THE assessee is a dealer in foodgrains and the assessment year involved is 1964-65. The turnover of foodgrains was liable to tax up to 30th September, 1964. By a notification issued under section 3-D(1) of the Act the first purchases of foodgrains became liable to purchase tax with effect from 1st October, 1964, and, consequently, by virtue of section 3-D(4), the turnover of sales of foodgrains became exempt from sales tax with effect from that date. By an ex parte assessment order the Sales Tax Officer determined the turnover of sales of foodgrains for the period 1st April, 1964, to 30th September, 1964, at Rs. 30,000 and the first purchases for the subsequent period of the assessment year also at Rs. 30,000 and levied sales tax as well as purchase tax. On appeal, the appellate authority found that there were no first purchases liable to purchase tax. He, however, determined the turnover of sales at Rs. 20,000 for the period 1st April, 1964, to 30th September, 1964. Under Notification No. ST-1025/X-1097(1)/58 dated 1st April, 1959, the turnover of foodgrains is not liable to tax unless it exceeds Rs. 25,000. The turnover of Rs. 20,000 as estimated by the appellate authority was less than Rs. 25,000 and, as such, was not liable to tax. But, in his opinion, the turnover of sales for the period subsequent to 30th September, 1964, could also be taken into consideration in order to determine the liability of the assessee to pay tax. He accordingly estimated the turnover for the period 1st October, 1964, to 31st March, 1965, at Rs. 10,000. As the aggregate sales for the whole year was more than Rs. 25,000 he levied tax on the turnover of Rs. 20,000. The revising authority did not agree with the appellate authority. In his opinion, the turnover of sales for the period subsequent to 30th September, 1964, could not be taken into consideration and as the turnover for the period ending 30th September, 1964, was less than Rs. 25,000, he annulled the appellate order. The Commissioner of Sales Tax is aggrieved and hence this reference at his instance. Section 3 is the charging section, which provides that : "Section 3. Subject to the provisions of this Act, every dealer shall, for each assessment year, pay a tax at the rate of .... on his turnover of such year, which shall be determined in such manner as may be prescribed : Provided that a dealer shall not, except as otherwise provided in section 18, be liable to pay the tax, if his turnover of the assessment year is less than Rs. 12,000 or such larger amount as may be notified by the State Government in that behalf either in respect of all dealers in any particular goods, or in respect of a particular class or category of such dealers ...."
(3.) AS has been pointed out above, in 1959, the Government raised the non-taxable limit of turnover of foodgrains to Rs. 25,000. Rule 8 of the Rules framed under the Act provides that the dealer's liability to pay tax under the Act shall be determined on the basis of his gross turnover, provided that the turnover in respect of the transactions of forward contracts in which goods are not actually delivered shall not be included in the gross turnover.;