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TMI Blog1994 (7) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner in respect of the rejected wheat sold by them as registered dealers to the petitioner during the assessment year 1983-84. A writ in the nature of mandamus, who also prayed for restraining the Sales Tax Officer, Sector 3, Moradabad, respondent No. 4, from taking any assessment proceedings for the assessment year 1983-84 till the requisite forms III-C(2) are issued to the petitioner by the respondents Nos. 2 and 3 in respect of the rejected wheat purchased by the petitioner during the assessment year 1983-84. 2.. Levy of purchase or sales tax on certain goods have been mentioned in section 3-D of the U.P. Sales Tax Act, 1948, which reads as under: "3-D. Levy of purchase or sales tax on certain goods.-(1) Except as provided in sub-section (2), there shall be levied and paid, for each assessment year or part thereof, a tax on the turnover, to be determined in the prescribed manner,- (a) of first purchases of opium, at such rate not exceeding twenty-six per cent; (b) of first purchases of such other goods, at such rate not exceeding- (i) the maximum rate for the time being specified in section 15 of the Central Sales Tax Act, 1956 (Act 74 of 1956), in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7)(a) Every purchase within Uttar Pradesh by a dealer, either directly or through another, whether on his own account or on account of any one else, shall, for the purposes of sub-section (1), be deemed to be the first purchase, unless the dealer proves otherwise to the satisfaction of the assessing authority after having furnished such declaration or certificate, obtained from the selling dealer, in such form and manner and within such period, as may be prescribed. (b) Every sale within Uttar Pradesh by a dealer, either directly or through another, whether on his own account or on account of any one else, shall, for the purposes of sub-section (2), be deemed to be a sale to a person other than registered dealer, unless the dealer selling the goods proves otherwise, to the satisfaction of the assessing authority after having furnished such declaration or certificate, obtained from the purchaser of such goods, in such form and manner and within such period, as may be prescribed. (8) Every notification made under this section shall, as soon as may be after it is made, be laid before each House of the State Legislature, while it is in sessions for a total period of not less th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be his. In view of sub-section (7) of section 3-D it was contended that every purchase within Uttar Pradesh by a dealer, either directly or through another, whether on his own account or on account of any one else, shall, for the purposes of sub-section (1), be deemed to be the first purchase, unless the dealer proves to the satisfaction of the assessing authority after having furnished such declaration or certificate, obtained from the selling dealer, in such form and manner and within such period, as may be prescribed. In this regard the attention of the court was drawn towards sub-rule (1) of rule 12-B of the U.P. Sales Tax Rules, 1948 which provides that "the certificates or declarations referred to in sub-section (7) of section 3-D shall be in forms III-C(1), III-C(2), III-C(3), III-C(4) and III-C(5)". Sub-rule (12) of rule 12-B of the U.P. Sales Tax Rules also provides that "any dealer, who wishes to claim exemption from tax under sub-section (7) of section 3-D, shall submit to the Sales Tax Officer the portion marked 'original' of the certificate, received by him under sub-rule (6) or (7) from other dealers, in respect of such claim up to the first date on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion II was added with retrospective effect by U.P. Act No. 23 of 1976. It is specifically in respect of purchase of foodgrains in pursuance of the orders made under section 3 of the Essential Commodities Act." 7. In the light of the aforesaid decisions, it would be necessary for us to examine as to whether the aforesaid Government orders were issued under the authority vested to the State under section 3 of the Essential Commodities Act. Section 3 of the Essential Commodities Act, 1955 deals with the powers of the Central Government to control production, supply, distribution, etc., of essential commodities. We do not find that the aforesaid orders were issued either under Central Government or the State Government in accordance with the provision contained in article 162 of the Constitution of India, have issued under section 3 of the Essential Commodities Act. In the case of Food Corporation of India [1988] 69 STC 374 (All.); 1987 UPTC 1258, the Division Bench held that the Food Corporation of India was neither a department of the Government nor did it perform any Government function. Its activities are purely business. The question of earning profit is wholly immaterial. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to purchase the rejected wheat in accordance with the provisions of section 3 of the Essential Commodities Act or to assert any clear promise that the Regional Food Controller, Moradabad, purchased the rejected wheat from the farmers after the same was rejected by the F.C.I. in accordance with the provisions of section 3 of the Essential Commodities Act. 10. The learned Standing Counsel has further drawn the attention of this Court towards the letter of one Sri Shail Kumar Mukharji, Secretary, Government of Uttar Pradesh, addressed to the Regional Food Controller dated September 3, 1985 wherein it was indicated that as in the years 1981-82 and 1982-83 under the price support scheme, orders were passed in accordance with the provisions of section 3 of the Essential Commodities Act, 1955, hence after obtaining the opinion further from the law department, the liability to pay the tax would be on the roller mills in accordance with the provisions of Explanation II of subsection (1) of section 3-D of the U.P. Sales Tax Act. 11. Before deciding this question as to whether the Regional Food Controller is the first purchaser or not within the meaning of either Explanation II of sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods described in sub-section (3), the tax shall be only 4 per cent of the turnover. In the light of the aforesaid circumstances, it was held that when the Act envisages that only a tax of 4 per cent is leviable in the case of inter-State sales and not 10 per cent under the Andhra Pradesh General Sales Tax Act in respect of such sales and entitles the registered dealer to pay this concessional rate of tax and prescribes the mode by which he can claim this concessional rate, it could not have been the intention of the Legislature to defeat this provision at the sweet will and pleasure of the purchaser of the goods. Form C can be signed only by the purchaser of the goods and it is only by filing such forms, the registered dealer can take advantage of the provisions contained in section 8 of the Act; and that right cannot be defeated by the volition of another registered dealer who is the purchaser. It cannot be the intention of the Legislature to deny this benefit upon the refusal of the purchaser to issue C forms and it is made clear by providing under sub-rule (3) of rule 12 that in case the original forms issued by the dealer are lost, the seller can demand the purchaser to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India reported in 1991 UPTC 241, the case of the petitioner is that when Ganesh Flour Mills vested in the corporation, the responsibility to issue form III-Kha was that of the corporation and so also to make payment of the outstanding bills. Further the outstanding payments were duly made by the corporation. The corporation also initially supplied form III-Kha in respect of some transactions for different periods to different petitioners and for the remaining it kept assuring the petitioners that the same shall be supplied to them in due course. A voluminous correspondence has been filed by these petitioners making demand for form III-Kha and the reminders sent to the Corporation in that regard from time to time. Due to the refusal on the part of the Hindustan Vegetable Oil Corporation to issue form III-Kha to the petitioners and consequent to their non-submission before the sales tax authorities at the time of their respective assessments, the petitioners of the second group have also been subjected to sales tax assessments resulting in heavy demand running into several lacs which also includes a huge amount of penal interest. 18. In the case of Union of India v. Godfr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd we express our disagreement with the observations in Jit Ram case [1980] 3 SCR 689; AIR 1980 SC 1285 to the extent that they conflict with the statement of the law in Motilal Padampat Sugar Mills case [1979] 44 STC 42 (SC), and introduce reservations cutting down the full width and amplitude of the propositions of law laid down in that case. 19. There is no dearth as far as the doctrine of promissory estoppel is concerned, which we have not multiplied. It has been a settled position that when an assurance or promise is made by a person or a group of persons, may be the state, the person making such assurance, promise or representations cannot be resile from it. 20. In the light of the aforesaid circumstances, the Division Bench of this Court indicated that: "Our conclusion is further fortified by another feature of the statute, namely, the absence of any requirement that the selling dealer must obtain form III-B from the purchasing dealer simultaneously or prior to the supply of the goods to the purchasing dealer. This is made amply clear by clause (5) of rule 25-B which states that the selling dealer may furnish to the sales tax officer the original of the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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