A.N.Sen, J. - (1.) In this reference under Section 21(1) of the Bengal Finance (Sales Tax) Act, 1941, the following question has been referred to this court: Whether, on a true and proper construction of item No. 2 of Schedule I of the Bengal Finance (Sales Tax) Act, 1941, as it stood before its amendment by West Bengal Act 14 of 1963, the word 'flour' occurring in the said item included 'barley powder' and as such barley powder was exempt from sales tax or whether barley powder was included in item No. 1 of the said schedule and taxable.
(2.) The facts which give rise to the present reference have been fully set out in the statement of the case. The facts material for the purpose of this reference may be briefly stated. M/s. Atlantis (East Limited) was a registered dealer under the Bengal Finance (Sales Tax) Act, 1941, having its Registration Certificate No. B. H/327B. In respect of the assessment for the 4th quarter ending on 31st October, 1959, the assessee raised the contention that the sum of Rs. 17,80,028 realised by the assessee from sale of barley powder in sealed containers should be exempted from tax as barley powder comes within flour mentioned in item No. 2 of the schedule of exemptions appended to the Act. It is to be noted that this contention was raised for the first time in appeal preferred by the assessee before the Assistant Commissioner against the order of the Commercial Tax Officer. The Assistant Commissioner did not accept the contention of the assessee and by his order dated 16th January, 1965, held that "flour" mentioned in item No. 2 of the schedule did not include "barley powder". Against the aforesaid order of the Assistant Commissioner of Commercial Taxes, the assessee filed a petition for revision before the Commissioner of Commercial Taxes, West Bengal. The Additional Commissioner of Commercial Taxes observed in his order dated 25th April, 1966, that nobody would include barley in the term "flour" either in common parlance or in trade circles and dismissed the assessee's petition. The assessee then filed a further revision petition before the Board of Revenue, West Bengal. After citing certain case-law, the assessee urged before the Board that the recognised meaning of the expression "flour" which it carried in the English speaking world should be attributed to it when used in the schedule of the Bengal Finance (Sales Tax) Act, 1941, and that the substance "barley powder" which was nothing but fine soft powder of barley or finely-ground meal of barley grain, should fall within the recognised meaning of the expression "flour" as used in the said schedule. The Board of Revenue observed by its order dated 19th July, 1968, that the fact remained that item No. 2 in question was later amended by the legislature to read "wheat flour including atta and suji" which showed that the intention of the taxing authority was really to exempt "wheat flour" at the time and not to exempt any other kind of soft powder. The Board also held by its order that in this State, as a commercial commodity barley powder sold in sealed containers never was or is understood, in common parlance to be a type of flour and therefore cannot be exempted from tax as flour under item No. 2 of the said schedule. The Board, therefore, rejected the revision petition filed before the Board. On the application of the dealer, the assessee in question, the Board has referred to this court the question, which has already been set out.
(3.) The real question that falls for determination in the instant reference is whether, on a true interpretation of the Act and the schedule and in particular the word "flour" occurring in item No. 2 thereof, it can be said that the legislature intended to include "barely powder" within the said item No. 2 and the said item No. 2 "flour" can be construed to mean "barley powder".;