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TMI Blog2006 (4) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(v) thereunder? " To buttress the arguments, the petitioner cited a Division Bench judgment of this court in State of Haryana v. Liberty Footwear Company [2006] 145 STC 532; [2005] 25 PHT 427 to state that the question similar to one, which is sought to be raised by the petitioner in the present petition, has already been answered in the abovesaid case in favour of the assessee and against the Revenue. The petitioner is a dealer registered under the provisions of the 1948 Act. During the assessment year in question, he sought exemption in respect of turnover representing transaction of sale of goods to the State Trading Corporation of India (hereinafter referred as, "the STC") in the course of export outside India. This was disallowed by the authorities below on the ground that the sale by the dealer to the STC was not an export sale since the State Trading Corporation did not act as an agent of the assessee as the transaction between the assessee and STC was a completed transaction of sale in the course of inter-State trade and commerce having no relevance with the export. While rejecting the claim of the petitioner, the judgment of the honourable Supreme Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be given to the appellant. Also rule 29(v) of the Punjab General Sales Tax Rules, 1949 cannot be invoked to supersede and circumvent the explicit provisions of section 5 of the Central Sales Tax Act, 1956. . . " The relevant paras of the division Bench judgment of this court in Liberty Footwear's case [2006] 145 STC 532; [2005] 25 PHT 427 are extracted below (page 541): "21. I am unable to accept the view of the District Attorney that in fact the words used in rule 27 of the 1949 Rules are identical with the words used in section 5(1) of the Central Sales Tax Act, 1956 and that the Supreme Court while giving in the Mod. Serajuddin v. State of Orissa [1975] 36 STC 136, its interpretation of the aforesaid rule 27 also to which rule 29(v) must be considered sub-servient. Firstly, rule 27 refers only to sale of goods 'in the course of inter-State trade or commerce or export out of the territory of India' whereas section 5 further qualifies this by clarifying that the sale of goods 'shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted directly by a dealer or indirectly through any other intermediary or through consecutive sales. In this case the goods in question have admittedly been exported out of the territory of India. Therefore, the appellant is entitled to deduct from his gross turnover the goods of the value of around Rs. 49.97 lacs, which have been exported out of India . . ." In view of the judgment of this court in State of Haryana v. Liberty Footwear Company [2006] 145 STC 532; [2005] 25 PHT 427 and since the authorities below have wrongly applied Mod. Serajuddin v. State of Orissa [1975] 36 STC 136 (SC) which is held to be not applicable to the facts of the case in hand, we find that the view taken by the authorities is erroneous and is not in conformity with law. Now when on the facts found by the Tribunal and considering the settled position of law, as referred to above, the answer to the question is available, should this court still give a direction to the Tribunal to make a reference to this court as per section 9(2) of the 1956 Act read with section 22(2) of the 1948 Act. In our view the same would not serve any purpose as it would result in avoidable loss of time and money without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 ITR 478 (SC) and Commissioner of Income-tax v. T.V. Sundaram Iyengar and Sons Ltd. [1996] 222 ITR 344 (SC). The honourable Supreme Court had given the decision without directing the High Court to call for the statement of the case. 9.. Undoubtedly, their Lordships have much wider powers than this court. However, it appears that a similar course has also been adopted by the Delhi High Court in the case of Commissioner of Income-tax v. Maharishi Ved Vigyan Vishwa Vidya Peetham [1998] 232 ITR 170. It was held that it was not imperative to follow the 'unnecessary and cumbersome part of the procedure' which in the opinion of their Lordships was 'directory'. Thus, the court had proceeded to 'straightaway . . . answer the question'. Similar view has also been taken by the Orissa High Court in State of Orissa v. Mahabir Prasad Agrawalla [1990] 79 STC 163 and Maharana and Maharana v. State of Orissa [1991] 82 STC 242. 10.. We are also of the view that while construing the provisions of a statute, the principle of 'updating construction' should be adopted. It means that 'a construction that continuously updates' the working of an on-going Act has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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