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TMI Blog1951 (12) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... and ropeway parts to collieries who are registered under the Act. As the articles are not shown in the certificates of registration of the purchasing dealers the exemption claimed was not allowed by the Sales Tax Officer. The assessee then moved the Commissioner of Sales Tax, Chota Nagpur Division, in appeal by petition filed on 28th April, 1948 (Exhibit B) seeking exemption noted above on account of ropeways and ropeway parts. The learned Commissioner of Sales Tax after hearing the parties dismissed the appeal by his order dated 28th March, 1949 (Exhibit C) for the following main reasons: (1) From the details of the sales of ropeways and the ropeway parts during the year in question, it appears that it includes, in addition to ropeways and parts supplied to collieries, ropeways valued at Rs. 9,798 supplied to Indian Copper Corporation Limited and parts valued at Rs. 1,287 and Rs. 750 respectively to steel companies. All the other transactions were with collieries. (2) From the papers available on the record and the arguments on behalf of the appellants, it appears that the ropeways are mainly intended for the purpose of carrying sand to the pits for the purpose of sand-stowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession 'taxable turnover' means that part of a dealer's gross turn- over during any period which remains after deducting therefrom his turnover during that period on sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration as being intended for re-sale by him, or for use by him in the manufacture of any goods for sale". So, one has to see whether- (i) the purchasing dealer has got a certificate of registration; (ii) this certificate of registration has got this kind of goods, men- tioned in it, namely, ropeways and their parts; (iii) these goods are used for the manufacture or production of coal. Practically all the collieries, who are purchasers, have got certifi- cates of registration, but ropeways and their parts are not specified in the certificates. That being the case, can deduction be claimed? As law stands, it cannot. But the petitioner argues that these are neces- sary for production of coal. He depends on the opinion expressed by the Chief Mining Officer. He also quotes the orders of the Assessing Sales Tax Officer, wherein he says: "In other words, only the raw materials required in the manufacture of the articles intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom payment of sales tax. (e) Whether the words 'ropes and strings, bolts, nuts, rivets, rods, angles, electric fittings and appliances etc.' as specified in the list incorporated in the registration certificates cover ropeways and their parts. (f) Whether the Sales Tax Officer was bound to make the usual deduction under Rule 4 of the Bihar Sales Tax Rules." The Board after hearing the lawyers of both the parties rejected the petition for reference by its order dated 16th January, 1949.- (Exhibit G.) Reasons for refusing to state the case on the points are noted below: (a) The applicant had claimed exemption from taxation of rope- ways and their parts. This exemption was not allowed by the Sales Tax Officer, as this item was not mentioned in the purchasing dealer's certificate of registration as being intended for resale or for use by him in the manufacture of goods for sale. It is not contended even now that ropeways and their parts were mentioned in the certificate of registration before 1947, that is during the period of assessment. That being so, there is no point of law in item No. (a) for making a reference to the High Court. (b) It is said that deduction can only b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angles, electric fittings and appliances etc." as specified in the list incorporated in the registration certificates do not cover ropeways and their parts. (5) Whether the Sales Tax Officer was bound to make the usual deduction under Rule 4 of the relevant Bihar Sales Tax Rules. (6) Whether the refusal of the Board of Revenue in its powers of revision to go into point (f) as mentioned in its resolution dated the 16th of November, 1949, rejecting the applicant's application for making a reference to this Court under the provisions of the Bihar Sales Tax Act was warranted by law". Mahabir Prasad and K.N. Moitra, for the assessee. Government Pleader and R. Prasad, for the State of Bihar. JUDGMENT. SARJOO PROSAD, J.- This application arises out of a reference made by the Board of Revenue, Bihar, under Section 21(3) of the Bihar Sales Tax Act of 1944 read with Section 25(3) of the Bihar Sales Tax Act, 1947. The reference has been made in pursuance of an order of this Court dated the 13th of February, 1950, under which the Board of Revenue was asked to state a case in regard to certain questions formulated in that order. The facts giving rise to this application are as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates of registration of the purchasing dealers to claim an exemption on the ground that ropeways and their parts are covered by the words 'colliery stores directly used in the raising of coal'. (3) (a) Whether the Sales Tax Officer had any power to determine the goods or classes of goods by preparing a list of such goods as could be exempted from taxation within the meaning of sub-clause (ii) of clause (a) of sub-section (2) of Section 5 of the Bihar Sales Tax Act (VI of 1944).(b) Whether in any event the list mentioned in the registration certificates of the purchasing dealers was prepared in the prescribed manner as required by Section 5(3) of the Bihar Sales Tax Act (XIX of 1947). (4) Whether the words 'ropes and strings, bolts, nuts, rivets, rods, angles, electric fittings and appliances etc.' as specified in the list incorporated in the registration certificates do not cover ropeways and their parts. (5) Whether the Sales Tax Officer was bound to make the usual deduction under Rule 4 of the relevant Bihar Sales Tax Rules. (6) Whether the refusal of the Board of Revenue in its powers of revision to go into point (f) as mentioned in its resolution dated the 16th of Nov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct.....". It is not disputed that all the collieries who were purchasers from the assessee of ropeways and their parts have got certificates of registration, but the Department has held that these articles were not specified in their certificates, and, therefore the assessee was not entitled to claim any deduction on that account. A copy of the certificate of registration of one of the collieries which has been printed in this paper book, namely, the Burrakur Coal Company Ltd., shows that for purposes of manufacture "colliery stores directly used in the raising of coal will be free from tax". Subsequently after the passing of the Act of 1947 these colliery stores were specified and a list of such stores was added to the registration certificate of the collieries. The specifications catalogue a large number of articles including ropes and strings, bolts, nuts, rivets, rods, angles, electric fittings and appliances etc. The Sales Tax Officer in refusing the deduction claimed took the view that ropeways and their parts were neither specifically mentioned in the certificate of registration nor could they be included in the list of colliery stores directly used in the raising of coal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact. The evidence of an expert like the Chief Inspector of Mines on a point like this may be very relevant and entitled to great weight, but if after consideration of the evidence the Sales Tax Authorities are unable to hold in favour of the assessee and to allow the deduction on that account, this Court on a reference cannot possibly interfere. It is then argued that the Sales Tax Authorities have not con- sidered the case in its correct perspective. It is true that they have held that ropeways are not specified in the certificate of registration, nor do they come under colliery stores directly used in the raising of coal; but they have not considered whether the various components of ropeways would not be included under the heading of colliery stores directly used in the raising of coal. In this connection it is further submitted that the Sales Tax Authorities have made use of the list of 1947 to the detriment of the assessee and not with a view to under- stand the meaning of the expression "colliery stores directly used in the raising of coal". The argument is attractive but not substantial. The decision of the Sales Tax Officer shows that some such argument was advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining operations, and for that reason exemption was claimed. The Board rejected this contention. It is true that all these officers did refer to the list of 1947, but they did so, because reliance was placed upon the enumeration of articles specified in the list to show that some of these items would cover the ropeways and their parts but the point which is now raised before us was not directly raised before the Board of Revenue either. That being so, it is now too late for the assessee to raise this contention before us. It may also be observed that even in the points suggested by the assessee or in the points formulated by this Court, the contention does not appear to arise. I might as well refer at this stage to the various questions formul- ated by this Court. The first question has to be answered in the negative obviously for the reason that the list prepared in July, 1947, and incorporated in the registration certificate of the purchasing dealers was after the period of assessment, and such a list could not govern the assessment in the present case. I have already pointed out that the Sales Tax Authorities did not utilise this list as governing the assessment in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n regard to question No. 1. I would be loath to answer any hypothetical questions of this kind, because whether the list of 1947 was or was not validly prepared was hardly germane to the legality of the present assessment. For the same reason question No. 4 also, having regard to the answer to question No. 1, becomes irrelevant. The only other questions of some importance are questions Nos. 5 and 6. These questions involve a consideration of the fact as to whether the assessee company was entitled to a certain percentage of deduction on account of labour charges in fitting up or installing the ropeways in the various collieries. The Member, Board of Revenue, has unfortuna- tely not given the relevant facts bearing on these questions. All that one finds from his resolution dated the 16th of November, 1949, dis- posing of the application of the assessee for reference to this Court is that the Board thought that point (f) in the assessee's petition of appeal which had a bearing on this deduction was purely a question of fact, viz., whether a deduction under rule 4 of the Sales Tax Rules for labour should have been made. The unfortunate part of it is that this ques- tion was for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect of the case and considered whether such an allowance should be made in favour of the assessee. As the materials stand, I am unable to hold that in the circumstances of the present case the Sales Tax Officer was bound to make the usual deduction, or that the Board of Revenue was bound to consider this point in the exercise of its powers of revision in reject- ing the assessee's application for making a reference to this Court. Question No. 5, therefore, has also to be answered in the negative and question No. 6 in the affirmative. For the above reasons, the reference is answered accordingly. As the assessee has failed on all the substantial questions raised, it is liable to pay the cost of this hearing to the Sales Tax Authorities which is assessed at five gold mohurs. DAS, J.-I agree with my learned brother that the questions should be answered in the manner indicated by him. I wish to add a few obser- vations only with regard to questions (2), (5) and (6). It is rather unfortunate that in this case the questions have been mooted in such a way that some of them do not arise out of the order passed by the Board of Revenue, and some, if they arise out of such order, are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s referable to Section 2(h) of the Act of 1944 which defines "sale price" as meaning, inter alia, the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion as may be prescribed, of such amount representing the usual proportion of the cost of labour etc. in carrying out the contract. The word "contract" has a special meaning in the Act, unless the context indicates otherwise; see clause (b) of Section 2. The assessee did not claim exemption on this ground in his return. He did so at a late stage, without getting any finding whether a ropeway, used collectively, comes within the special meaning of the word "contract". Question (6)-Though the claim of a deduction under rule 4 was mentioned in the grounds of revision, it is not clear to me if this ground was pressed before the Board. The Resolution of the Board dated the 21st July, 1949, by which the revision petition was dismissed, does not mention this point. The point is mentioned as point (f) in the applica- tion for a reference to this Court; the Board then said that it was a question of fact. Though I do not understand what the Board meant by saying that it was a question of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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