9911796707
TMI Blog1962 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... condition. It may be stated that under the provisions of section 3-AA sale of oil-seeds by a dealer to a consumer alone was liable to sales tax. The assessment order relates to the petitioner's assessment for the year 1957-58. At the material time section 3-AA stood as follows: "Notwithstanding anything contained in section 3 or 3-A, the turnover in respect of coal, iron and steel, raw jute, cotton, oil-seeds or raw hides and skins, shall not be liable to tax except at the point of sale by a dealer to the consumer and the rate of tax shall not exceed three pies per rupee. Unless the dealer proves otherwise, a sale shall be presumed to be to a consumer." Subsequently, the above section was amended. The words "unless the dealer proves ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot furnish a certificate in Form III-A, but produced two affidavits and a contract book in order to prove that the sales of oil-seeds by it had been made not to consumers, but to dealers, for resale in the same condition, and as such, the sales were not liable to sales tax. The Sales Tax Officer did not accept this evidence, as he took the view that the certificate in Form III-A required by rule 12-A not having been filed and that being the only mode of proof permissible, the sales were not exempt from sales tax. The only argument which has been addressed to me by the learned counsel for the petitioner is that rule 12-A is ultra vires of the provision in section 3-AA of the the U.P. Sales Tax Act. His point is that section 3-AA gives the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the conclusion may be drawn is a thing quite distinct and apart. It follows that section 3-AA, while it gives the right to a dealer to rebut the presumption or to prove the existence or non-existence of a certain state of facts, does not give him any right as to the choice of the materials on the basis of which the fact may be proved or disproved. So far as rule 12-A is concerned, it in no way takes away from him the right or the opportunity to rebut the presumption. All that that rule does is to lay down that in order to rebut the presumption and to prove a contrary state of facts to exist, a certificate in Form III-A will be the only material or evidence. Thus while the section deals with the right or the opportunity to prove or disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total taxable turnover certain deductions have to be made. The proceeding for assessment has to be initiated, and in due course, to be concluded. In the course of the proceeding, certain conclusions have to be reached on the basis of the evidence and the materials produced therein. From this it is quite clear that a rule providing for the mode of proof or providing for materials on the basis of which a particular fact might be established or a particular presumption rebuted, is a rule for carrying out the purposes of the Act, and can be validly made under sub-section (1) of section 24 in the exercise of the generality of the rule-making power. Further, it seems to me that the impugned rule also falls within the ambit of the particular p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules, the subject of which was quite different from the subject of the section. In support of his submission that a statutory provision cannot be cut down or curtailed by a rule, learned counsel cited before me several cases. There can be no quarrel with this provision but the point does not arise in the case, because as already observed, there was no curtailment of any power or right by the rule. Apart from this, it is wellsettled that a power under a particular proposition can be curtailed where there is a specific provision for the curtailment of such a power under another provision of the statute. In this connection, I may only mention the Full Bench decision of the Madras High Court in Madurai Pillai v. Muthu ChettyA.I.R 1914 Mad. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
