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TMI Blog1972 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... under the law or at any rate to make the enforcement of that right unduly difficult. - C.A. Nos. 2215, 2216, 2217 of 1969, W.P. Nos. 417, 418, - - - Dated:- 30-10-1972 - HEGDE K.S., JAGANMOHAN REDDY P. AND KHANNA H.R. JJ. R.B. Datar, Advocate, for the appellant in C.A. Nos. 2216 and 2217 of 1969. None appeared for the respondents. S.T. Desai, Senior Advocate (R.B. Datar, Advocate, with him), for the appellant in C.A. No. 2215 of 1969. -------------------------------------------------- Civil Appeals Nos. 2215 to 2217 of 1969. Appeals by special leave from the judgment and order dated September 18, 1968, of the Mysore High Court in W.P. Nos. 417 and 418 of 1967 and S.T.R.P. No. 43 of 1967. The judgment of the Division Bench of the Mysore High Court consisting of A.R. SOMNATH IYER and AHMED ALI KHAN, JJ., in W.P. Nos. 417 and 418 of 1967 and S.T.R.P. No. 43 of 1967, dated 18th September, 1968, is as follows: The judgment of the court was delivered by SOMNATH IYER, J.- These three matters raise the same question, and so could be disposed of by a common judgment. The petitioner in W.P. Nos. 417 and 418 of 1967 is a dealer in hides and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in Form 4-A. (3) The statement referred to in sub-rule (2) shall be submitted so as to reach the assessing authority not later than the date on which the return of turnover for the period in respect of the sale in the course of inter-State trade or commerce referred in sub-rule (1) is due: 3.. The petitioner in W. P. Nos. 417 and 418 of 1967 which is a firm called Mallick Hashim and Company did not present any application in form 4-A to which rule 39-A(2) refers, and the petitioner in S. T. R. P. No. 43 of 1967, which is another firm did make an application in form 4-A, but did not make it within the time prescribed by sub- rule (3). So the Commercial Tax Officer refused the refund sought by them. From that order the petitioner in S.T.R.P. No. 43 of 1967 preferred two unsuccessful appeals to the Deputy Commissioner and the Sales Tax Appellate Tribunal. The petitioners ask us to quash those orders by which the refund claimed by them was disallowed and ask for a mandamus to the Commercial Tax Officer that he should make the refund claimed by them. 4.. It is undisputed that the declared goods which were purchased by the petitioners were subsequently sold by them in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe that the conditions authorised by the proviso are not conditions subject to which a claim to a refund could be made, but conditions subject to which a refund shall be made. While the proviso authorises the procedure to be adopted by the Commercial Tax Officer in the disposal of a claim for refund, it does not authorise the imposition of fetters on the exercise of the right to a refund to which a dealer who has subsequently made an inter-State sale has become absolutely entitled. If the proviso says that the tax paid in that situation shall be refunded, it is not within the competence of Government to make a rule that that tax shall not be refunded unless an application is made within the period of limitation prescribed by them. 8.. In Thirumurthi Chettiar v. State of Madras[1968] 21 S.T.C. 489., the High Court of Madras expressed the opinion that there was nothing in the proviso to section 4 of the Madras General Sales Tax Act, the provisions of which correspond to the proviso to section 5(4) of the Mysore Sales Tax Act, which could bestow power on Government to make a rule prescribing a period of limitation for a claim to a refund which could be made under the proviso. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l thus be seen that although it would be convenient for a dealer who makes an application for a refund to specify the information to which the form refers so that the Commercial Tax Officer may expeditiously dispose of the application on the basis of the form which is self-contained, it is clear that the requirement that the application should be made only in that form is merely directory and not mandatory. 12.. That being so, the omission to make an application in the form prescribed cannot lead to the nullification of the absolute right to a refund expressly created by the proviso to section 5(4) of the Act. If the Commercial Tax Officer requires any information which is not already known to him and which has relevance to the claim for a refund, he could always call upon the dealer to furnish that information, but he could not, in our opinion, refuse the refund on the ground that information has not already been furnished or that it is not furnished in a particular form. 13.. It is, we think, plain that the requirement that the application should be made in a particular form is really one of form and is therefore not imperative. It is not contended in the cases before us that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State." Section 5(4) of the Mysore Sales Tax Act, 1957, provides: "Notwithstanding anything contained in sub-section (1) a tax under this Act shall be levied in respect of the sale or purchase of any of the declared goods mentioned in column (2) of the Fourth Schedule at the rate and only at the point specified in the corresponding entries of columns (4) and (3) of the said Schedule on the dealer liable to tax under this Act on his taxable turnover of sales or purchases in each year relating to such goods: Provided that where tax has been paid in respect of the sale or purchase of any of the declared goods under this sub-section and such goods are subsequently sold in the course of inter-State trade or commerce, the tax paid under this Act shall be refunded to such person in such manner and subject to such conditions as may be prescribed." Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are declared goods under section 14 of the Central Sales Tax Act, 1956. It is also not disputed that at the time of purchase of those goods the dealers in question had paid the purchase tax. Further it is admitted that these goods were sold in the course of inter-State sale transactions. It is not denied that the petitioners had a right to apply for refund of the taxes paid by them but the objections raised by the State is those refund applications were not filed within the period mentioned in rule 39-A(2) and (3) and further in two cases it is contended that the applications were not made in the prescribed form. The High Court has taken the view that rule 39-A is ultra vires the rule-making power. It has opined that the rules made under section 5(4) of the Mysore Sales Tax Act, 1957, are those which must relate to the manner and conditions under which refund has to be made and such a rule cannot in substance deprive the dealer of the right to get refund to which he is entitled to under section 15 of the Central Sales Tax Act, 1956, as well as section 5(4) of the Mysore Sales Tax Act, 1957. We have not thought it necessary to go into that question as, in our opinion, sub-rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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