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TMI Blog1968 (1) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... t it paid the tax due before the 31st July, 1961; but the return was actually filed by it on the 1st August, 1961. The taxing authority held that, for the purpose of eligibility for rebate under section 15 of the Act, the assessee must fulfil two conditions, viz., (1) the tax due for the quarter must be paid before the end of the succeeding month, and (2) the return also must be filed by the end of the succeeding month. Hence, the claim for rebate was rejected. 3.. Section 14(1) of the Act requires a registered dealer to furnish the return within the prescribed period. Rule 10(2) of the Bihar Sales Tax Rules, 1959, says that the return shall be filed within one calendar month of the expiry of the period to which it relates. Hence, under normal circumstances the return for the quarter ending the 30th June, 1961, should be filed by the 31st July, 1961. But sub-section (3) of section 14 confers power on the taxing authority to extend the period for the submission of the return if the dealer satisfies the authority that he was unable to furnish the return within the prescribed period for a reasonable cause. Under section 16 of the Act, assessment is made mainly on the basis of the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return is filed, the question of allowance of the rebate by the authorities will not arise; but a distinction should be made between the right to claim rebate on the one hand and the date when the authority concerned will allow the claim. Subsection (2) of section 20 clearly envisages a situtation where the full amount of tax is first paid by the dealer and then the return is submitted by him to the taxing authority, enclosing with the return a receipt from the treasury showing payment of the said amount. Thus, the Legislature clearly recognises that, between the date of payment of the tax due and the date of submission of the return, there may be an appreciable interval depending on the obtaining of the receipt from the treasury showing payment. Delay may occur if the treasury does not pass the chalan promtly. It is not proper to construe section 15 in such a narrow way as to disentitle a person from claiming rebate due to delay caused by some other agency, over which he has no control. The reference to the return in section 15 is for the purpose of ascertaining the amount of tax admitted to be due, and it is not meant to restrict his right to claim rebate. I would, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Calcutta office and subsequently sold at Baripada and Cuttack in Orissa. The total sale price of the bran was Rs. 51,137.50. The dealer claimed exemption from sales tax in respect of the said sale of bran outside Bihar on the ground that, inasmuch as it was an external sale, it was not liable to sales tax under the Bihar Act. The Sales Tax Tribunal, however, rejected this claim, and allowed that sum to be added to the turnover of the assessee, relying on the second proviso to clause (b) of sub-section (2) of section 7 of the Act. The Tribunal thought that, though bran was not expressly mentioned in Schedule II to the notification (quoted above), it was a byproduct of the process of milling wheat, and must be deemed to have included in column 2 of Schedule II, and that this dealer was, therefore, guilty of contravention of the declaration given by him while purchasing wheat tax-free. Hence, the Tribunal thought that the proviso to clause (b) of sub-section (2) of section 7 would directly apply. 7. Section 4 of the Act is the well-known exemption section, and sub-section (3) of that section empowers the State Government by notification to exempt certain classes of sales from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commerce or export out of the territory of India; Provided that in the case of such sales a declaration in the prescribed form duly filled up and signed by the registered dealer to whom the goods are sold, or by his manager declared under section 10, is furnished in the prescribed manner by the selling dealer: Provided further that where any goods, specified in the certificate of registration of a dealer, are purchased by him after furnishing a declaration as aforesaid, but are utilised by him for any purpose other than those specified in sub-clause (i) or (ii) the sale price of the goods so purchased shall, without prejudice to any action which is or may be taken under section 38, be deducted from the gross turnover of the selling dealer but shall be included in the taxable turnover of the purchasing dealer." (I may mention that this section has been completely recast by the Bihar Finance Act, 1966; but we are concerned with the section as it stood prior to the amendment). 8.. The two provisos (quoted above) appear to be provisos to clause (b) of sub-section (2) only and not to the whole of sub-section (2). This is clear by the special reference to sub-clauses (i) and (ii) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export out of the territory of India or for use by him in the packing of goods [sub-clauses (i) and (ii) of clause (b)], the sale price on account of such sales may be excluded from the turnover of the selling dealer. But the second proviso is in the nature of a provision for preventing evasion. If the purchasing dealer, after obtaining them from the selling dealer free from sales tax, utilises the goods for purposes other than those mentioned in his declaration, he is penalised by the inclusion in his taxable turnover of the sale price of the goods so purchased. This liability is in addition to other penalties provided in the Act for contravention of a declaration made under the provisions of the Act. 10.. This view gains support from a close scrutiny of rule 8 of the Bihar Sales Tax Rules, 1959. It is a well-known principle of statutory construction that, where the language of a statute is ambiguous and difficult to construe, the Court may, for assistance in its construction, refer to rules made under the provisions of the Act (see Craies on Statute Law, 6th Edition, page 157). Exemption claimed under clause (b) or clause (c) of sub-section (3) of section 4 is dealt with separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the declaration, the sale price of that product should be added to the taxable turnover of the purchasing dealer. This is clear from the language "sale price of the goods so purchased" mentioned in the proviso. Hence, the Tribunal was not justified in adding the sale price of bran to the taxable turnover of the assessee merely because, though he purchased wheat as raw material free of sales tax, he contravened the declaration as regards the sale of one of the wheat products. 13.. Thus, in any view of the case, the Tribunal was not justified in adding the sale price of bran sold outside Bihar in the taxable turnover of the petitioner-assessee, relying on the second proviso to clause (b) of subsection (2) of section 7 of the Act. My own view, however, is (as stated in paragraph 10) that purchase of raw materials by a dealer free of sales tax would come under clause (a) of sub-section (2) of section 7, and that clause (b) of that sub-section (including the proviso) will apply only to those sales of goods to a registered dealer who subsequently sells them (without their undergoing any change) to other persons for the purposes mentioned in sub-clauses (i) and (ii) of that claus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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