Sinha, J. - (1.) The facts in this case are shortly as follows: The petitioner is the Kedar Nath Jute Manufacturing Co. Ltd., a public limited company incorporated under the Indian Companies Act, having its principal place of business in Calcutta. It is a dealer registered under the Bengal Finance (Sales Tax) Act (VI of 1941) (hereinafter referred to as the "Act"). In respect of the accounting period ending with 31st December, 1954, the petitioner submitted a return to the Commercial Tax Officer on 21st October, 1955. In this return, the gross turnover was shown to be Rs. 70,99,928-10-0. Of this sum, exemption was claimed under two headings. One was under Section 5(2) (a) (i), for goods included in the schedule of exemptions amounting to Rs. 1,33,730-7-6. In this application we are not concerned with this. What we are concerned with is the exemption claimed under the second heading, namely, under Section 5 (2) (a) (ii), amounting to Rs. 69,65,979-9-6, which practically wiped off the entire liability, and, indeed, the taxable turnover that remained amounted to the sum of Rs. 218-9-0 upon which the tax payable was Rs. 9-12-6, the amount being deposited in the treasury. It will be necessary presently to examine the provisions of Section 5 (2) (a) (ii) somewhat closely, but for the time being, it will be sufficient to say that this provision of law gives exemption in respect of sales to a registered dealer, of goods of the class or classes specified in the certificate of registration of such dealer as being intended for resale by him, etc., provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are sold is furnished in the prescribed manner by the dealer who sells the goods. On 22nd April, 1955, notice in Form VI of the Act was issued by the respondent No. 1 fixing 4th August, 1955, as the date for hearing the petitioner's assessment case for the period ending 31st December, 1954. On 27th February, 1956, the petitioner company filed a return for the period ending 31st December, 1955. On 4th September, 1956, the Commercial Tax Officer, respondent No. 1, issued notice in Form VI fixing 21st January, 1957, for hearing of the petitioner's assessment case for the period ending 31st December, 1955. With regard to the assessment for the period ending 31st December, 1954, a copy of the order sheet has been filed and marked as Ex. "1". It appears from the order sheet that on 21st April, 1955, the Commercial Tax Officer made an order that no return having been filed for the year ending 31st December, 1954, notice should be issued under Sections 4 (1) and 14 (1) of the said Act, and also a show-cause notice why penalty should not be imposed for non-submission of return in time. On 4th August, 1955, the petitioner company appeared through its agent and applied for an adjournment on the ground that the books were not finally adjusted. The matter was adjourned till November, 1955, and thereafter until February, 1956. On 1st February, 1956, the petitioner's agent applied for further adjournment on the ground of the illness of their accountant. The matter was adjourned till April, 1956, and thereafter to January, 1957. On 21st January, 1957, the petitioner's agent appeared and for the first time prayed for time on the ground that the dealer was not in a position to produce some declaration forms on that date in support of the claim under Section 5(2)(a)(ii). The case was accordingly adjourned to 7th March, 1957. On 7th March, 1957, the petitioner's agent again appeared and prayed for time on the same ground. The matter was adjourned to 28th March, 1957. On 28th March, 1957, the petitioner's agent appeared and represented that some declaration forms received from the purchasing dealers had been misplaced. He further said that the dealer was trying to obtain duplicate declaration forms from the parties concerned, and prayed for time. The case was adjourned till 3rd May, 1957. At or about this time, the petitioner company approached the Commissioner of Commercial Taxes intimating that certain declaration forms had been lost. Between 16th May, 1957, and 1st August, 1957, the Commissioner of Commercial Taxes notified in the Calcutta Gazette about the loss in respect of some of the alleged purchasing dealers whose declaration forms are said to have been lost. On 3rd May, 1957, the petitioner's pleader appeared before the respondent No. 1 and prayed for further time for obtaining duplicate declaration forms. The case was adjourned to 20th July, 1957. On 20th July, 1957, the petitioner's pleader prayed for further time to obtain the duplicate declaration forms. The matter was adjourned till 20th August, 1957. On 20th August, 1957, the authorised Advocate of the petitioner appeared and prayed for action under Section 21-A of the said Act, which empowers the Commissioner or any person appointed to assist him, to enforce the attendance of any person and examine him or to compel production of documents etc. The assessment of the case including the consideration of the application was adjourned till August and then till September, 1957. On 27th August, 1957, the petitioner company made an application before the Commissioner of Commercial Taxes, praying that the Commissioner should declare that it was entitled to receive duplicate declaration forms from the dealers concerned, and for an order directing these dealers to furnish duplicate declaration forms. On 30th August, 1957, the Commissioner rejected this application, stating that he had no jurisdiction to compel the dealers to issue duplicate declaration forms. The petitioner company thereupon made an application for revision under Section 20(3) of the said Act, to the Board of Revenue, West Bengal. On 10th December, 1957, the Board summarily rejected the petition, holding that it was an administrative matter and the Board could not interfere. The matter of the assessment for the year ending 31st December, 1954, came up for hearing before the Commercial Tax Officer on 21st November, 1957. On this date a further attempt to adjourn the matter on behalf of the petitioner company was unsuccessful and the assessment was made. A copy of the assessment order is Ex. "T" to the petition. This will show that in so far as the petitioner claimed exemption under Section 5(2) (a) (ii), those items were allowed for which the petitioner could produce declaration forms or duplicate declaration forms. The petitioner company could not produce declaration forms in respect of nine registered dealers who are specifically mentioned in the assessment order, in respect of whose dealings the total amount concerned was Rs. 22,46,006-0-6. In respect of the transactions for which the petitioner could not produce declaration forms, exemption was refused. It has been stated by the respondent No. 1 in his affidavit affirmed on 7th March, 1958 (paragraph 27), that the assessment was actually made on 23rd November, 1957. On 22nd November, 1957, letters were written to the respondent No. 1 requesting that the books should be looked into and that if necessary, evidence should be heard in respect of the alleged loss of declaration forms but these applications were not successful. On or about 26th November, 1957, notice of demand was served on the petitioner and on 3rd February, 1958, this Rule has been issued. In this application the principal attack is on the assessment order dated 23rd November, 1957, and the principal point urged is in respect of the amount disallowed, for which the petitioner company could not produce declaration forms and yet claimed exemption under Section 5(2) (a) (ii)of the Act. The case of the petitioner company is briefly as follows: It is stated that in respect of the nine registered dealers mentioned in the assessment order, all of them had issued declaration forms in respect of the sales. It is further stated that in the majority of cases, payments were made by crossed cheques and the dealers themselves admit the transactions, and the issue of declaration forms. It is stated that sometime in June, 1955, the petitioner company shifted its principal place of business from 34, Jatindra Mohan Avenue, to 13, Syed Sally Lane, Calcutta. It is stated that when the notice in Form VI dated 4th September, 1956, in respect of the assessment of the period ending 31st December, 1955, was served upon the petitioner company fixing the hearing on 21st January, 1957, the petitioner, sometime in the second week of January, 1957, started sorting out and segregating its relevant books of account, papers and documents for the purpose of producing the same before the Commercial Tax Officer. In course of doing so, it is alleged that the petitioner company discovered that a certain file containing as many as 147 declaration forms received by the petitioner from various dealers registered under the Bengal Finance (Sales Tax) Act, 1941, in respect of goods purchased from the petitioner, was missing. In spite of thorough searches conducted by the petitioner to trace out the said file, the petitioner failed to discover the same and the circumstances indicated that the said file might have been mislaid somewhere and/or lost in course of the shifting of the petitioner's office as aforesaid. Thereafter, the petitioner wrote letters to the various registered purchasing dealers whose declaration forms had been found missing, to issue confirmatory letters about the purchases. Many of the dealers gave such confirmatory letters. The petitioner company was thereupon advised to obtain not mere confirmatory letters but duplicate declaration forms. Thereupon, letters were written to the purchasing dealers requesting them to issue to the petitioner duplicate declaration forms. It appears that three of the purchasing dealers issued duplicate declaration forms but the petitioner company has been unable to obtain duplicate declaration forms from the others. On 1st May, 1957, the petitioner lodged information with the Officer-in-charge, Jorasanko Police Station, regarding the loss of the said declaration forms. A copy of this information is Ex. "G" to the petition. It merely stated that a file containing 147 sales tax declarations obtained from parties to whom the petitioner company sold goods have been lost. The Officer-in-charge of the thana was asked to do the needful in the matter. On 3rd May, 1957, the petitioner company inserted advertisements notifying the loss, in the newpapers-Statesman, Amrita Bazar Patrika and Sanmarg. Thereafter, the petitioner company applied to the Commissioner of Commercial Taxes to direct these dealers to issue duplicate declaration forms and also applied to the Commercial Tax Officer under Section 21-A of the Act, to summon these dealers for production of their books and generally to give evidence for the purposes of proving the transactions as well as the fact that declaration forms which had been lost were actually issued. The complaint is that the first prayer was rejected and so far as the second prayer is concerned, it was never decided although the assessment was made. Complaint is also made that not only did the respondents decline to assist the petitioner in obtaining duplicate declaration forms but actually when these dealers in their turn contacted the respondents, they were asked not to supply the duplicate declaration forms. It is thus argued that although the petitioner company due to reasons beyond its control, lost a number of declaration forms, the respondents have refused to grant to it any means of redress. It is finally stated that it would be grossly unfair and unjust to compel the petitioner company to pay about a lakh of rupees in sales tax in respect of transactions for which it should get exemption under the Act and which transactions could be proved to the hilt from the books of account of the dealers themselves and/or their evidence and it could be proved that the dealers had actually issued the declaration forms which had unfortunately been lost.
(2.) Briefly put, therefore, the petitioner's case is as follows : It is a registered dealer. It had transactions with other registered dealers. In respect of sales made to these other registered dealers, it would get exemption provided that in the case of such sales a declaration was furnished, duly filled up and signed by the registered dealer to whom the goods have been sold. This declaration had to be on a prescribed form obtainable from the prescribed authority. The petitioner company alleges that it sold the goods and the purchasers duly handed over declaration forms in respect of such sales. In its return which was filed, exemption was claimed under Section 5(2) (a) (ii) of the Act. But when it came to the production of the declaration forms it was found that a considerable number of declaration forms which were in a file had been lost, presumably, while the company was moving its head office from one address to another. Since the original declaration forms were not available, the company approached the registered dealers who confirmed in writing about the transactions and the issue of declaration forms. However, the petitioner was informed that this was not enough and duplicate declaration forms will be necessary. It therefore approached the dealers requesting them to issue duplicates. A few dealers issued duplicate declaration forms but most of the others wrote to their respective Commercial Tax Officers asking for permission to do so. This asking of permission meant that these registered dealers were agreeable to give duplicate declaration forms, provided that in lieu of those declaration forms which they would issue, the Commercial Tax Officer would issue a new set to them. The Commercial Tax Officers were not agreeable. Being unable to obtain duplicate declaration forms, the petitioner company moved the Commissioner to make an order upon the registered dealers compelling them to issue duplicate declaration forms. This the Commissioner refused to do, saying that he had no jurisdiction to compel the registered dealers to issue duplicate declaration forms. The petitioner company then made an application under Section 21-A of the Act, asking that the Commercial Tax Officer should summon the registered dealers to produce their books and generally to give evidence showing that declaration forms had been duly issued. This application was really not heard at all, but the assessment was made and the entirety of the amount not covered by declaration forms has been disallowed. Therefore, the short point is as to whether under such circumstances it is open to the Commercial Tax Officer to allow the exemption upon being satisfied upon evidence that the declaration forms have been issued and that the transactions were in fact effected, and whether he can be compelled to follow this procedure. So far as the facts are concerned relating to the transactions, it is alleged by the petitioner company that it has a strong case inasmuch as the registered dealers have admitted in writing that the transactions did take place, and that declaration forms had in fact been issued. It is further stated that most of the transactions are covered by crossed cheques so that there would be no difficulty whatsoever in proving the transactions. It is argued that it would be grossly unjust to compel the petitioner company to pay sales tax for an enormous amount simply because of an accident whereby certain declaration forms have been lost. On the other hand, it is argued on behalf of the respondents that the merits of the case or the factum of the alleged transactions are not relevant at all. The jurisdiction of the Commercial Tax Officer to make an assessment or to allow an exemption flows from the terms of the statute. It is argued that under the relevant provisions of the Act and the Rules, it is not open to the Commercial Tax Officer to grant an exemption, unless a declaration form is furnished in the manner laid down. If the declaration form cannot be produced for any reason whatsoever, the condition-precedent laid down in the statute is not fulfilled and, therefore, whatever the merits of the case and the hardship suffered by a party, the Commercial Tax Officer is helpless, and must disallow the exemption. Therefore, the point is in a small compass and it is necessary to look into the provisions of the Act and the Rules.
(3.) The exemptions are contained in Section 5 of the Act. The relevant part of Section 5 (2) is set out below : - (2) In this Act the expression 'taxable turnover' means in the case of a dealer who is liable to pay tax under Section 4, that part of his gross turnover during any period which remains after deducting there-from - (a) his turnover during that period on- (i) the sale of goods declared tax-free under Section 6 ; (ii) sales to a registered dealer - of goods of the class or classes specified in the certificate of registration of such dealer, as being intended for re-sale by him, or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract ; and of containers or other materials for the packing of goods of the class or classes so specified : Provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are sold and containing prescribed particulars on a prescribed form obtainable from the prescribed authority is furnished in the prescribed manner by the dealer who sells the goods.;