Sinha, J. - (1.) The facts in this case are briefly as follows:--The petitioner is a well-known company dealing with the manufacture and supply of aluminium utensils and has its registered office in Calcutta. The petitioner submitted tenders for the supply of aluminium utensils required for military purposes by the Government of India in its Directorate of Supplies and Disposals. The tenders were made to the Director of Supplies and Disposals, Ministry of Works, Housing and Supply at 6, Esplanade East, Calcutta. The tenders having been accepted, a contract came into existence. The following particulars in the schedule to the acceptance of the tender are important and are set out below:-- JUDGEMENT_478_STC16_1965Html1.htm
(2.) The general conditions contained in W.S.B. 133 contain inter alia the following conditions:-- II Delivery (v) (a) Place of delivery.--The contractor shall as may be required by the Secretary, Department of Supply, deliver the stores either free at, or F.O.R. the place or places detailed in the schedule hereto and not later than on the dates specified in the Acceptance of Tender. 15. System of payment. (i) Unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form. (ii) Payment for the stores or for each delivery will be made to the contractor on submission of bills in accordance with the procedure laid down by the Secretary, Department of Supply (now Ministry of Works, Housing and Supply) as detailed below:-- (a) 90 per cent. of the price of each consignment will be paid on proof of despatch of stores to the consignee and on production of an inspection note issued by the Inspector. The balance of 10 per cent. will be paid on receipt of consignment in good condition by the consignee, with his certificate to that effect endorsed on the copy of the inspection note which shall accompany the bill submitted by the contractor. (d) Where the Inspector also acts as the consignee or where inspection is carried out by the consignee himself at destination and in all cases of local delivery full payment shall be made on submission of 'final 100 per cent. bill' supported by the Inspection Certificate and Consignee's Receipt to the Accounts Officer concerned.
(3.) The goods were delivered to the A.I.I.G.S., Hastings on the 13th September, 1955, 21st September, 1955, and 8th October, 1955. On the very same date, the petitioner submitted his bills to the Deputy Accountant-General, Industries and Supplies at P-2, Mission Row Extension, Calcutta, for the whole of the value of the goods supplied. The petitioner is a dealer under the West Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the 'said Act'). In its return submitted before the Commercial Tax Officer, Lyon's Range Charge, for the assessment year ending 31st December, 1955, the petitioner claimed deduction of a total sum of Rs. 21,550 being the amount of the three bills above-mentioned, under Section 5(2)(a)(v) of the said Act. The Commercial Tax Officer by his order dated 27th June, 1956, disallowed the whole sum, treating the amount as subject to the payment of sales tax. Against the said order, the petitioner preferred an appeal before the Assistant Commissioner of Commercial Taxes, Calcutta (South) Circle. By order dated 23rd March, 1957, the appeal was rejected. Against the said order of rejection the petitioner preferred a revision petition before the Additional Commissioner of Commercial Taxes, West Bengal. The order of the Assistant Commissioner was confirmed and the revision petition was rejected. Against the decision of the Additional Commissioner of Commercial Taxes, the petitioner filed a revision application before the Additional Member, Board of Revenue, Government of West Bengal. By his order dated 1st August, 1960, the revision application was rejected. In all these orders, it was held that the sale was completed within the State of West Bengal and was liable to payment of sales tax. The petitioner thereupon filed a reference before the Additional Member, Board of Revenue, West Bengal, under Sub-section (1) of Section 21 of the said Act for referring certain questions of law to the High Court. The said application was rejected as being out of time. The petitioner then filed a reference application in this High Court under Sub-section (2) of Section 21 of the said Act. The application was not entertained on the ground that it was out of time. Thereupon, the petitioner made this application and a rule was issued on the 17th May, 1961, calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued directing the respondents to forbear from giving effect to the illegal order of assessment dated 27th June, 1956, and why a writ in the nature of certiorari should not be issued setting aside the several orders mentioned hereinbefore, and for other reliefs. I have mentioned above that the petitioner seeks to bring its case under the provisions of Section 5(2)(a)(v) of the said Act. That provision states that in the turnover during the relevant period for the purpose of calculation of the sales tax payable under the said Act, sales of goods which are shown to the satisfaction of the Commissioner to have been despatched by, or on behalf of dealer to an address outside West Bengal are to be exempted. Section 27 of the said Act runs as follows:-- 27. (1) Notwithstanding anything contained in this Act-- (a) a tax on the sale or purchase of goods shall not be imposed under this Act, (i) where such sale or purchase takes place outside the State of West Bengal, (ii) where such sale or purchase takes place in the course of import of the goods into or export of the goods out of, the territory of India. (b) a tax on the sale or purchase of any goods shall not, after the 31st day of March, 1951, be imposed where such sale or purchase takes place in the course of inter-State trade or commerce.;