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TMI Blog1984 (11) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... nlal Sons, the assessing authority, by its order dated 3rd June, 1969, determined that a sum of Rs. 6,910.63, which had already been deposited by the assessee towards tax for the assessment year 1958-59 under the Central Act, was not payable, and that, therefore, it will be refunded under section 23-B of the Rajasthan Act, but only to the person from whom the assessee had realised it. On appeal by the assessee from this order, the Deputy Commissioner (Appeals) modified it directing that the refund may be made to the assessee himself. A single Bench of the Board of Revenue set aside the order of the Deputy Commissioner (Appeals) and restored the order of the assessing authority. The assessee carried the matter to the Division Bench of the Board of Revenue in further appeal under section 14 of the Rajasthan Act. The Division Bench of the Board of Revenue allowed the appeal, set aside the order of the single Bench and restored that of the Deputy Commissioner (Appeals). Thereafter, the assessing authority made the application dated 3rd May, 1976, to the Board of Revenue under section 15(1) of the Rajasthan Act stating that the Board is in error in holding that section 23-B of the Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing authority is not competent to file and maintain the application under section 15(1) of the Rajasthan Act and that therefore the reference applications should be rejected on that ground alone. Their Lordships of the Division Bench are of the opinion that the assessing authority is competent to make the applications mentioned above, but it felt difficulty in finally deciding the reference applications by reason of a contrary opinion on this point expressed by an earlier Division Bench of this Court in Commercial Taxes Officer, Jaipur v. Man Industrial Corporation Ltd. [1970] 26 STC 169. The Division Bench therefore caused the matter to be referred to the Full Bench for resolving the conflict and giving an authoritative opinion as to the competence of the assessing authority to make an application under section 15(1) of the Rajasthan Act in a matter of assessment of tax on inter-State sales under section 9 of the Central Act. In its two orders dated 27th August, 1979, the Division Bench did not formulate any question of law as such for decision by the Full Bench. As we see it, the question which the Division Bench would like us to answer is the one which has been stated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n "general sales tax law" is used in section 9 which, as already stated, deals with procedural matters inasmuch as it sets up the machinery of assessment, collection and enforcement of payment of tax, on inter-State sales. Section 9, sub-section (1), lays down inter alia that the tax payable by a dealer under the Central Act on inter-State sales shall be collected in accordance with the provisions of sub-section (2) of that section in the State from which the movement of goods commenced. Sub-section (2) of section 9 which provides the machinery for assessment, collection and enforcement of payment of such tax is important for our present purpose and should therefore be reproduced herein fully. Omitting the concluding proviso, it reads: "(2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further portions of the sub-section, which have been restated in the form of clauses (iii) and (iv) above, Parliament clearly intended to remove doubts and emphasise that the assessing authorities appointed under the general sales tax law of the State, while making assessment and collection of tax on inter-State sales, may exercise all or any of the powers they have under the general sales tax law of the State and that such powers also include the power of the assessing authority to make an application for reference in accordance with the general sales tax law of the State concerned. 7.. This interpretation of section 9(2) of the Central Act is not disputed by the learned counsel for the assessee. The contention raised by the learned counsel for the assessee, however, is that the assessing authority appointed under the Rajasthan Act is not competent to make an application for reference under section 15(1) of the said Act because there is nothing in the language of section 9(2) of the Central Act, as reproduced and analysed above, which may reasonably be construed as incorporating or adopting section 15(1) as amended by Amendment Act No. 2 of 1963 of Rajasthan. Counsel argued tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is a tax payable under the "general sales tax law " of the State, and that for this purpose the assessing authority of the State may exercise all or any of the powers it has under the general sales tax law of the State, including the power to make an application for reference. Now, the definition of the expression "general sales tax law" as given in section 2(i) of the Central Act which has already been noticed in an earlier part of this judgment means the law for the time being in force in any State or part thereof which Provides for the levy of tax on the sale or purchase of goods generally. Reading this definition into the provisions of section 9, sub-section (2), of the Central Act, and then construing the same, sub-section (2) would mean that the tax on inter-State sales may be assessed and collected by the assessing authority of the appropriate State in accordance with the law for the time being in force in State which provides for the levy of tax on the sale and purchase of goods generally in that State. 9.. The expression "for the time being in force" as used in the definition of "general sales tax law" would show that Parliament had in view not merely the State law, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, which empowered the Appellate Assistant Commissioner to enhance the tax levied by the Sales Tax Officer was not in force at the time when the Central Act came into force, the amendment of section 9(2) in 1969 with retrospective effect from 5th January, 1957, vested the Appellate Assistant Commissioner with the power to enhance the tax on interState sales immediately on the commencement of the Madras General Sales Tax Act, 1959. On the analogy of this ruling, it would be reasonable to hold that though the assessing authority was incompetent to make an application for reference under section 15(1) of the Rajasthan Act, as it existed when the Central Act came into force, the power to make such application came to be vested in the assessing authority immediately on the coming into force of Act No. 2 of 1963 with effect from 29th March, 1963; and the assessing authority may therefore exercise the same power to make an application for reference in the matter of assessment, collection and enforcement of payment of tax on interState sales by virtue of the provisions of section 9(2) as amended by Act No. 28 of 1969, which has been given retrospective effect from 5th January, 1957. 11.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court, there cannot possibly be any valid objection to the incorporation of procedural provisions relating to the machinery for assessment and collection of inter-State sales tax, as adopted by section 9(2) of the Central Act. 13.. We have perused the Division Bench judgment of this Court reported in Commercial Taxes Officer v. Man Industrial Corporation Ltd. [1970] 26 STC 169, in which a contrary view has been taken to the effect that since there is no provision in the Central Sales Tax (Amendment) Act, 1969, laying down that the Rajasthan Act as it stood on the date of coming into force of the Central Sales Tax (Amendment) Act, 1969, will be applicable, therefore the Rajasthan Act as it stood in 1969 is not applicable in disposing of cases under the Central Sales Tax Act, 1956. There is no discussion in the cited judgment of the relevant provisions of law contained in the Rajasthan Act and the Central Act. The Division Bench seems to have arrived at the aforementioned conclusion on the basis of the decision of the Supreme Court in Shama Rao v. Union Territory of Pondicherry [1967] 20 STC 215 (SC). We have carefully studied the judgment in Shama Rao's case [1967] 20 STC 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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