(1.)The facts in this case are shortly as follows: The Petitioner is a company incorporated under the Indian Companies Act and carries on the business of manufacture, export and import of motor cars. It is assessed for taxation under the provisions of the Bengal Finance (Sales Tax) Act, 1941. This application relates to the assessment for sales tax in respect of periods 22-6-1946 to 30-8-1946, 30-9-1946 to 31-3-1947 and 31-3-47 to 31-3-1948. For these periods, the Petitioner was assessed for the payment of sales tax. Against the original orders of assessment, the Petitioner preferred appeals to the Additional Commissioner, Commercial Tax, West Bengal. The appeals were numbered 32, 34 and 36 of 1954-55. In the returns filed the Petitioner, claims were, made for exemption from payment of sales tax under Section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the "Act"). Under that provision of law, sales of goods which are shown to the satisfaction of the Commissioner to be despatched by or on behalf of the dealer to an address outside West Bengal are entitled to exemption. In Appeal No. 32 of 1954-55. an order was made by the Additional Commissioner, on March 8, 1956 by which all claims in respect of transport otherwise than by road were allowed, but 75 per cent of the claim on transport by road was disallowed. The disallowance on this head involved a sum. of Rs. 91.898. In Appeal No. 34 of 1954-55 an order was made by the Additional Commissioner on March 9. 1956. In this case also, the claim on transport otherwise than by road was allowed, but 75 per cent, was disallowed on transport by road. This involved a sum of Rs. 1,65,718. In Appeal No. 36 of 1954-55 an order was made by the Additional Commissioner on March 12, 1956. In this case full deduction was allowed on cars valued at Rs. 2,26,5.60, but 75 per cent was disallowed on trans port by road on cars valued at Rs. 21,30,707. So far as transport otherwise than by road was concerned, a sum of Rs. 1,39,539 was allowed and Rs. 7,29,272 was disallowed. In the body of the order, a copy whereof is to be found in the additional brief at page 16, it has been stated that 75 per cent, of the claim was disallowed on 236 cars valued at Rs. 21,39,707 alleged to have been despatched by "rail". This is inconsistent with the particulars given at the bottom of the order. Mr. Mukherji appearing on behalf of the Respondents says that this is a mistake. I directed the original to be produced and in the original also, the word "rail" is used and not "road". Against the assessment for the four quarters ending 31-3-1948 an appeal was preferred on June 26, 1.956 before the Board of Revenue numbered as Petition No. 106 of 1956. Appeals were also filed in. respect of the other two orders, being Petitions, Nos. 107 and 108 of 1956. It was urged before the Member Board of Revenue, who heard the matter, that the provisions of Sales Tax Rules 21(c) framed under the said Act, came into force only a short time before the period of assessment and the Petitioner had not been maintaining records of despatch to addresses outside West Bengal as required by that particular Rule. It was however stated that, the accounts of the company were. audited regularly and if detailed evidence was required after such lapse of time it would be difficult for the assesses to produce the same. They had, however, sufficient materials in "their possession which went to show that the goods in question were despatched by them, or on their behalf, by different agents as would appear from the terms of agreement with the agents.
(2.)The Member, Board of Revenue, in bis Resolution No, 20875-ST. dated 28-11-58 stated as follows:
At first I felt inclined to send the cases back to the Commissioner of Commercial Taxes for farther examination of the evidence on record but that would be a lengthy process and the learned Counsel for the Petitioners suggested that instead of 25 per cent, of the claims for deduction on account of sale under Section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act, 1941, in respect of the first and second periods 50 per cent, might be deducted. I think this is a very reasonable proposition considering the antecedents of the Petitioners and the nature of their business as well as the periods to which the assessment relates. A similar deduction may be made in respect of claims under the same section for the third period also.
(3.)As for the Petitioners' claim for deduction of the proportionate cost of advertisement charges, I am afraid this cannot be allowed, because the taxing authorities are concerned with the sale prices charged by the dealer and not the costing on which such prices are fixed. So this part of the claim of the Petitioners is disallowed.
The petitions are partially allowed. The assessments should be revised after allowing 50 per cent, of the claims for deduction under Section 5(2)(a)(v) of the Act.