9911796707
TMI Blog1990 (3) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of 30 days from the date of the receipt of the said goods or within a reasonable time the requisite Central sales tax declaration form duly filled in and signed in respect of and covering the said goods so sold and delivered, failing which the defendant would be liable to pay to the plaintiff further sums towards Central sales tax at the rate of 10 per cent on the price of goods. The plaintiff duly submitted to the defendant eight bills covering the said goods and the defendant accepted the said bills without raising any objection and paid the sum inclusive of Central sales tax at 3 per cent as charged therein. The defendant failed and neglected and ultimately on or about 9th January, 1976, refused in writing to submit to the plaintiff the requisite Central sales tax declaration form in respect of and covering the said goods on a frivolous pretext notwithstanding demands by the plaintiff. By and under two separate assessment orders dated 12th December, 1974 and 12th December, 1975 and consequential two separate demand notices dated 31st December, 1974 and 23rd December, 1975, received by the plaintiff from the appropriate Commercial Tax Officer, the plaintiff was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the materials on record the learned Judge has found that there was an implicit agreement between the plaintiff and the defendant that the defendant would bear the burden of Central sales tax at 10 per cent in case they failed to supply the sales tax declaration form and that the defendant failed to submit the said form in contravention of the agreement between the parties. The learned Judge has also found in favour of the plaintiff that the court had territorial jurisdiction to try the suit. The lower court has also found in favour of the plaintiff that the plaintiff was entitled to recover a sum of Rs. 15,131.15 towards Central sales tax paid by the plaintiff. The learned Judge has, however, found in favour of the defendant that the suit was barred by limitation inasmuch as the claim was not preferred within 3 years from the date of supply of the goods or even from the date of payment of the last bill relating to the transactions. In the opinion of the learned Judge the fact that the defendant failed to furnish the sales tax declaration form as per agreement did not extend the period of limitation inasmuch as when the sales tax declaration form was not supplied to the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material time. But a commodity of the description referred to in section 8(3) is liable, under section 8(1)(b) to pay tax at a concessional rate, of three per cent at the material time, on that part of his turnover. In order to qualify himself for that rate of tax, he has to furnish to the prescribed authority within the prescribed time a declaration duly filled and signed by the registered dealer to whom the goods are sold. Such a declaration must contain the prescribed particulars in the prescribed form obtained from the prescribed authority. If the selling dealer fails to furnish the declaration in the prescribed form (C form) he is liable to pay tax at the general rate provided for in section 8(2). Similarly, section 5(2)(a)(ii) of Bengal Act 6 of 1941 provides that the taxable turnover would be the amount which remains after deducting sales to a registered dealer of goods of the classes specified in the certificate of registration of such dealer as being intended for resale by him in West Bengal or for own use by him in the manufacture in West Bengal of goods for sale, and/or containers and/or other materials for the packing of the goods of the class or classes so specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here, therefore, there is no cause of action, on which the suit can rest or upon which it can be brought, no question of limitation arises and time would not and cannot run, or, in other words, the law of limitation for its application postulates a suit, i.e., a cause of action otherwise subsisting. So, the question is when the right of the plaintiff to recover the Central sales tax at the general rate of 10 per cent less the amount already paid at the concessional rate of 3 per cent could arise in this case. Could the plaintiffs right to sue arise on the date of delivery of the goods or on the date of the payment of the last bill as urged by Mr. Bhattacharjee, learned advocate for the respondent and as held by the court below. In our opinion, the answer must be given in the negative. If the defendant submitted the necessary declaration form duly filled in and signed before the assessment of the turnover of the plaintiff as per contract between the parties, there would have been then no cause of action for the present suit. It was only for the failure of the defendant to submit the declaration form that the plaintiff could acquire a right to sue the defendant. Now, the defendant's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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