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TMI Blog1975 (12) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... December, 1959, and the said declaration form was alleged to have been obtained by the petitioner on 18th June, 1960, although according to the purchasing dealer's application dated 21st December, 1959, declaration forms issued on 17th December, 1959, had already been exhausted by that time. The petitioner, thereafter, preferred a revision application before the Additional Commissioner, Commercial Taxes. The Additional Commissioner, Commercial Taxes, by his order also confirmed the decision of the Commercial Tax Officer. Against the impugned order the petitioner moved the Member, Board of Revenue, West Bengal. The Member, Board of Revenue, by an order dated 9th May, 1972, dismissed the said revision application. The petitioner, thereupon, on 12th January, 1973, moved this court and obtained a rule nisi in this application under article 226 of the Constitution. The petitioner's ground of challenge to the impugned orders is that the petitioner, having complied with all the conditions necessary under section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941, as well as rules 27A and 27AA of the Bengal Sales Tax Rules, 1941, was entitled to deduction as claimed for the transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of 9 transactions on the ground that the purpose of the purchase had not been specified in the relative statutory declarations. The Board of Revenue in rejecting the revision did not apply its mind to the reasons of the appellate authority but had based its decision on the ground of suspicion which weighed with the Commercial Tax Officer. It was held that the Board in proceeding on mere suspicion had committed not an error on a mere question of fact or law, but an error touching and concerning jurisdiction and the remedy provided by section 21 was in no way alternative remedy to article 227 of the Constitution. The facts of that case, in my opinion, are significantly different from the facts of the instant case as would be noticed later. Reliance was placed also on the decision of the Supreme Court in the case of State of Madras v. Radio and Electricals Ltd.[1966] 18 S.T.C. 222 (S.C.). There the Supreme Court was dealing with section 8(1) read with section 8(3)(b) of the Central Sales Tax Act, 1956. The Supreme Court observed that reading section 8(1) with section 8(3)(b) of the said Act it was clear that the legislature intended to grant the benefit of concessional ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place, but no such finding could be arrived at simply from the fact that the registration certificate of a purchasing dealer had been subsequently cancelled by the taxing authorities. If the assessing authorities in an appropriate case were satisfied on proper evidence that the concerns were not in existence when the alleged sales were made to them, it was open to such authorities to come to such a view. But the subsequent cancellation of the registration certificate did not ipso facto lead to the conclusion that the dealer was not in existence at the time when the transactions took place. The law did not require that in order to claim deduction under section 5(2)(a)(ii) of the Act the sales should not be made on cash payment. Therefore, in order to be entitled to deduction, it must be established by the dealer that he had "sold goods' to a registered dealer. In the instant case, the Assistant Commissioner had observed, inter alia, as follows: "In the aforesaid facts and circumstances, I am also not satisfied as to the bonafides of the alleged sales to the United Commercial Agency and for that matter the question of allowing any claim in respect of sales will not arise, the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in the Calcutta Gazette, no single declaration in form XXIV shall cover- (a) more than one transaction of sale, or (b) any amount exceeding that which the appropriate Commercial Tax Officer may, in issuing the form, specify thereon to be the limit of the total value of purchase to be made in a single transaction of sale, and a declaration in a form in contravention of the provisions of clause (a) or clause (b) shall not entitle the dealer who accepts such declaration to make any deduction under this sub-rule on the strength thereof." In the facts of this case, the following materials have emerged: (1) That the registration certificate of the purchasing dealer was cancelled on 7th October, 1960; (2) The alleged transaction of the petitioner with the purchasing dealer took place on 18th June, 1960; (3) The purchasing dealer had obtained the declaration form in question on 17th December, 1959, and the said dealer had made a declaration along with the application dated 21st December, 1959, that the declaration forms issued on 17th December, 1959, were exhausted by the 21st December, 1959 (4) The petitioner produced the cash memo; (5) The transaction was alleged to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of the amount of stock on the alleged date of the transaction would be a relevant piece of evidence. If in these background the authority, having jurisdiction to decide this question, takes the view that the transaction did not represent genuine sale with a registered dealer, in my opinion, it cannot be said that the authority has acted without jurisdiction. Mere production of the evidence as contemplated by rule 27A of the Bengal Sales Tax Rules does not exonerate the dealer from producing other evidence if relevant and if required nor does it absolve the assessing authority from finding out whether the transaction in question was a genuine one or not. In that view of the matter, in my opinion, the impugned order cannot be challenged as either being on no evidence or on erroneous principle of law. The learned Member, Board of Revenue, was, therefore, justified in rejecting the revision application. Counsel for the respondent contended that, in any event, the petitioner was not entitled to move this application as the petitioner did not resort to the alternative remedy provided by the Act. In the view I have taken, it is not necessary for me to embark on this aspect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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