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TMI Blog1965 (4) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941 (Bengal Act VI of 1941), hereinafter called the Act. The material facts are as follows: The appellant is a public limited company registered as a dealer under the Act, having its registered place of business at Calcutta. In respect of the accounting year ending with 31st December, 1954, in the return for the year the assessee had shown its gross turnover at Rs. 70,99,928-10-0 and claimed exemption under two heads, namely, (i) under section 5(2)(a)(i) of the Act, Rs. 1,33,730-6-6; and (ii) under section 5(2)(a)(ii) thereof, Rs. 69,65,979-9-6. After deducting the said amounts from the gross turnover the assessee showed its taxable turnover at Rs. 218-9-0 and deposited the tax of Rs. 9-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November 21, 1957, the Commercial Tax Officer made an order of assessment disallowing the assessee's claim for exemption in respect of the said sales made to the purchasing registered dealers amounting to Rs. 22,46,006-0-6 and levied on it additional tax of Rs. 1,49,778-4-6. The assessee there- after filed a petition under Article 226 of the Constitution in the High Court of Calcutta for issuing an order directing the respondents, i.e., the Commercial Tax Officer and the Commissioner of Commercial Taxes, West Bengal, not to implement the said assessment order. The said application came up, at the first instance, before Sinha, J., who dismissed the same. On appeal, a Division Bench of the said High Court confirmed the order of Sinha, J. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion shall on demand produce such a declaration in writing signed by the purchasing dealer. Sub-rule (2) thereof enjoins on a dealer not to accept and on the purchasing dealer not to give a declaration except in the form prescribed. The other rules make stringent provisions to prevent the misuse of the said forms. The argument of Mr. A.V. Viswanatha Sastri, learned counsel for the appellant, may be briefly stated thus: The substantive part of section 5(2)(a)(ii) of the Act provides for the exemption in respect of certain sales to a dealer if the sales are made to a registered dealer for the purposes mentioned thereunder. The proviso to the said sub- clause prescribes in effect that the declaration form in the manner prescribed is the best e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling dealer covered by the terms of sub-clause (ii) will be exempted provided a declaration in the form prescribed is furnished. To put it in other words, a dealer cannot get the exemption unless he furnishes the declaration in the prescribed form. It is well-settled that "the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it": see "Craies on Statute Law", 6th Edn., p. 217. If the intention of the Legislature was to give exemption if the terms of the substantive part of sub-clause (ii) alone are complied with, the proviso becomes redundant and otiose. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. They provide only safeguards against abuse of the declaration forms by the purchasing dealers; they do not enable the selling dealer to either directly apply or to compel the purchasing dealers to apply for duplicate forms; nor do they enjoin the appropriate authority to give the selling dealer a duplicate form to replace the lost one. We realise that the section and the rules as they stand may conceivably cause unmerited hardship to an honest dealer. He may have lost the declaration forms by a pure accident, such as fire, theft etc., and yet he will be penalised for something for which he is not responsible. But it is for the Legislature or for the rule-making authority to intervene to soften the rigour of the provisions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act in question, but there was no proviso to that section in the Orissa Act similar to the one found in the present section. That makes all the difference, for it is the proviso that imposes the condition. But under rule 27(2) made under the Orissa Act " a dealer shall produce a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealer's certificate of registration as being required for resale by him or in the execution of any contract. " This Court held that the said mandatory provision was inconsistent with section 5(2)(a)(ii) of the Orissa Sales Tax Act; and to avoid that conflict it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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