9911796707
TMI Blog1977 (5) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... d was whether the credit sales to registered dealers should be deducted for the purpose of arriving at the taxable turnover under explanation to section 5 of the Act irrespective of non-production of declaration under rule 18 of the Bihar Sales Tax Rules, 1949 (as amended in 1956), hereinafter referred to as "the Rules". The Deputy Commissioner, while disposing of the three appeals by a common judgment dated 26th August, 1961, observed that, in claiming deduction on account of sales made to registered dealers, the declarations were required to be produced in respect of cash or credit sales. In the case of credit sales also with effect from 7th April, 1956, declarations were required to be produced. The assessing officer had to be satisfied that the sales had been made to other dealers on credit. In the last paragraph, he further ordered thus: "The order of the court below is, therefore, set aside and proceedings remanded. The appellant should be given an opportunity to show to what extent he had made sales to other registered dealers on credit and to what extent it is permissible by law. In case he fails to appear as done by him previously, the learned assessing officer shall a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low any amount in the absence of necessary declarations at his discretion. In that view of the matter, he came to the conclusion that the claim for the credit sales to registered dealers on the basis of the entries in the seized books did not seem admissible and, therefore, he disallowed it. 4. Aggrieved by those orders the petitioner preferred three separate appeals and the Deputy Commissioner of Sales Tax, who by a common order dated 31st October, 1964, dismissed the appeals (vide exhibit H). Regarding allowance of claim for deduction for sales to the registered dealers, he held that the Board had already given direction that it was obligatory to produce declarations even for credit sales for the period under assessment according to rule 18 read with the amendment. Under the circumstances, it was obligatory for the petitioner to produce declarations even for credit sales for which he was claiming deduction according to the figures revealed by the seized books of account. That obligation for production of the declarations in support of the claim had not been discharged by the petitioner. Therefore, he observed that the Assistant Commissioner was fully justified in rejecting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 to 574 of 1967 (Budhram Kashiram v. State of Bihar[1971] 28 S.T.C. 336 (S.C.). By a consolidated order dated 29th July, 1971, the Supreme Court was pleased to allow the appeals, set aside the orders of the High Court and directed the High Court to readmit the tax cases and to dispose them of in accordance with law. The relevant portion of the said judgment reads thus: "There can be hardly any doubt that the question whether the assessee is entitled to deduct under the provisions of the Act from his total turnover the turnover relating to the sales to the registered dealers is a question of law. But the High Court, before deciding that question, may have to decide whether the decision on that question is barred in view of the decision the Board of Revenue referred to earlier. The question of law formulated by the assessee is broad enough to include that question also. But, if the High Court so decides it can split the question into two questions, i.e., (1) whether, in view of the decision of the Board of Revenue in the revision petition filed by the assessee, it is open to the assessee to claim the deduction asked for and (2) if that decision does not bar the assessee's plea, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se also, it was argued on behalf of the State that rule 27(2) was mandatory and, if there was breach of it, the selling dealer was not entitled to deduction. On behalf of the assessee, however, it was urged that the contents of rule 27(2) were directory. It was also pointed out that the word "shall" should be read as "may" in the context. It was further urged that supposing the selling dealer brought the original certificate of registration of a buying dealer and produced it before the Sales Tax Officer, according to the appellant, that would not be enough but that could never have been intended. Sikri, J., speaking for the court, observed: "...........In our opinion, rule 27(2) must be reconciled with the section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales Tax Officer to be satisfied that, in fact, the certificate of registration of the buying dealer contains the requisite statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other secondary evidence available to the petitioner. In order to find support to his contention he has relied on United Provinces Electric Supply Co. Ltd. v. T.N. ChetterjeeA.I.R. 1972 S.C. 1201 at 1209-1210, para 15. and lie drew our attention to paragraph 15 of the judgment at pages 1209 to 1210. 11.. Learned counsel pointed out that the real test is whether the order in fact finally terminated the proceedings or not. In the present case, the resolution of the Board of Revenue did not finally terminate the proceedings. They were merely remanded with certain observations. The proceedings were terminated only after the final disposal of the three cases an all the points by the assessing officer. He made special emphasis upon paragraph 15 of the aforesaid judgment(2) of the Supreme Court, which reads thus: "That order in fact did not finally terminate any proceedings at all. The proceedings were terminated only by the award against which the present appeal has been brought by special leave. We are unable to see how the decision in the aforesaid case can afford any assistance to the respondents before us. Indeed the case which is more apposite is Satyadhayan Ghosal v. Smt. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery well be that though the interlocutory order is against him, the final order will be in his favour and so it may not be necessary for him to go to the appeal court at all. Apart from the inevitable delay in the progress of the litigation that such a rule would cause, the interests of the other party to the litigation would also generally suffer by such repeated recourse to the higher courts in respect of every interlocutory order alleged to have been wrongly made. It is in recognition of the importance of preventing this mischief that the legislature included in the Code of Civil Procedure from the very beginning a provision that in an appeal from a decree it will be open to a party to challenge the correctness of any interlocutory order which had not been appealed from but which has affected the decision of the case." Finally, on this point in paragraph 22, the learned counsel pointed out that it was held that the order of remand was an interlocutory order and did not terminate the proceedings and so the correctness thereof could be challenged in any appeal from the final order. He submitted that, in this connection, it will also be relevant to refer to Pragash Singh v. Madan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But, on a subsequent inspection of the business premises of the dealer on 24th June, 1959, several books of account of the dealer were seized and with reference to such books of account, assessment for those periods were reviewed and fresh order of assessment was passed. Assessment for the third period from 1958 to 1959 was also made. According to the petitioner's the books of account seized disclosed a considerable amount of credit sales to registered dealers and such sales had been deducted out of the total turnover of the assessee in terms of explanation (a)(ii) below section 5 of the Bihar Sales Tax Act, 1947. The assessee's contention was, however, rejected by the assessing officer on the ground that the declaration as required under rule 18 of the Bihar Sales Tax Rules, 1949, was not produced in support of the claim. The appeal preferred by the assessee was dismissed and when the matter was taken to the Board of Revenue, the Board also by its order dated 8th February, 1962, accepted the view expressed by the authorities below that it was necessary for the dealer to produce the declaration even for credit sales in order to justify the deduction which the dealer sought out of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or for resale or for use in packing of taxable goods for resale as was required under rule 18. In the absence of such material produced before the taxing authority the view expressed by the Tribunal must be accepted as correct and the question must be answered against the assessee. 15.. It may further be observed that the petitioners had withheld the facts and the observations made in Budhram Kashiram v. State of Bihar[1970] 26 S.T.C. 505; 1970 B.L.J.R. 135. before this Court, while the matter of the petitioners in the instant case was pending for direction to the Tribunal to state the case before this court or when it was pending before the Supreme Court in Civil Appeals Nos. 572 to 574 of 1967 (Budhram Kashiram v. State of Bihar[1971] 28 S.T.C. 336 (S.C.). Since there has already been a finding by a Bench of this Court that no attempt was made on behalf of the petitioners to satisfy the taxing authority by reference to any other materials on the record, as referred to above, in my view, the said finding is binding on the petitioners. Against the said finding the petitioner has not preferred any appeal to the Supreme Court and, therefore, the said finding has become conclusive. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
