F ROSE MARY CARPENTRY WORKS COIMBATORE Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE Joint Commercial Tax Officer, Coimbatore IV, assessed Messrs F. Rose Mary Carpentry Works, Coimbatore, dealers in radio cabinets, for the year 1960-61, on a turnover of Rs. 35, 106-15 nP. at 7 per cent. This tax was leviable at 7 per cent. under serial No. 5 of the First Schedule to the , which reads :

(2.) THERE is however one more provision, namely, that contained in section 3(3) of the Act, which reads :

(3.) EXPLANATION. - For the purposes of this sub-section, 'component part' means an article which forms an identifiable constituent of the finished product and which along with others goes to make up the finished product." It may be also worthwhile to mention that by Act 44 of 1961, which came into force subsequent to the order of assessment in this case, the explanation above extracted was added to sub-section (3) of section 3.The view of the Joint Commercial Tax Officer, the assessing authority, was that "radio cabinet" was an accessory within the meaning of serial number 5 in Schedule I aforesaid, but it would not be a component part to attract the benefit of the lower rate of 1 per cent. tax under section 3(3). He also held further that when the assessee submitted his return in Form A-1 on 1st May, 1961, he did not send with it the required declaration in Form XVII. But this declaration was submitted by him only on 30th May, 1961, along with another Form A-1 return and the assessee claimed relief of the lower rate of tax under section 3(3) of the Act. The prayer was not conceded as the declarations were not attached to the original return filed, as required by the provisions of rule 22(5) of the Madras General Sales Tax Rules 1959, and also for the reason that radio cabinets were not component parts of radios but only accessories thereto. The assessee appealed to the Appellate Assistant Commissioner (Commercial Taxes), Coimbatore, who reversed the finding of the assessing authority. In the view of the Appellate Assistant Commissioner, radio cabinet forms a component part of a radio because it is in fact used in the manufacture of a "finished radio", which does not undergo change, and is identifiable as such in the finished product. Therefore, he held that the proviso to section 3(3) enabling the lower rate of 1 per cent. would apply to the sales in question. So far as the omission to enclose the declaration in Form XVII along with the return was concerned, the Appellate Assistant Commissioner observed that it was indisputable that the declarations had been filed along with the second Form A-1 return, which, but for the slight amendment of the total turnover remained the same as the one submitted in the first instance, that the taxable turnover was the same in both the returns and that therefore, Form XVII declaration filed by the assessee could be accepted as valid under the Act. The turnover was thus assessed by the Appellate Assistant Commissioner at 1 per cent.The Board of Revenue suo motu took up the case for revision under section 34 of the Act. The Board of Revenue was of the view that as the Government issued a memorandum on 10th November, 1960, which clarified that "radio cabinet" was only an accessory falling under item 5 of Schedule I, what is an accessory of a radio cannot become a component part for the purpose of the proviso to section 3(3). The Board of Revenue also held that even if "radio cabinet" be regarded as a "component part", the assessee failed to attach the declaration in Form XVII to his return as required by rule 22(5) of the Madras General Sales Tax Rules, 1959. There was a failure to comply with the said rule and in the absence of any provision to condone the omission or delay, the assessee was not eligible to the reduced rate of one per cent. Therefore, the Board the Revenue set aside the Appellate Assistant Commissioner's order and restored the order of the Joint Commercial Tax Officer. From this decision of the Board of Revenue, the assessee has filed the present appeal before us.