TMI Blog1954 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... by the customer-vendee. In such circumstances, can the cost of railway freight be considered as 'separately charged' for the purpose of the definition contained in section 2(h)(i) of the Sales Tax Act?" 3.. In Miscellaneous Civil Case No. 4 of 1953 the reference was made under sub-section (3) of section 23 at the instance of the assessee who moved this Court and obtained an order to the Board of Revenue for referring the following question to this Court: "Whether the transactions between the petitioner and its selling agents outside the Province were 'sales' within the meaning of the Act." 4.. The assessee is a concern manufacturing and dealing in biris in Jabalpur. For the purposes of assessment of sales tax on its dealings it submitted a return in respect of the period 1st June, 1947, to 12th November, 1947. In that return it showed (omitting annas and pies) Rs. 12,71,817 as the gross turnover of the business by way of sales other than in execution of contracts. From that gross turnover it claimed deductions of Rs. 16, 147 by way of cost of freight, delivery, etc., Rs. 16,453 on account of cash discount (commission to agents), and Rs. 12,38,597 on account of specified goods s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he additional evidence sought to be adduced in the form of four affidavits filed before it, two by its authorized agent one Khan Mohammad and the other two by persons in Uttar Pradesh. The Board took the view that these affidavits were belated attempts to go back upon the statements contained in the solemn affirmation of Maksudali before the Assessing Officer. This matter forms the subject matter of the reference in Miscellaneous Civil Case No. 4 of 1953. 6.. The Board allowed the assessee's objection relating to "trade discount" or cash discount, both of which the Board was inclined to treat on the same footing. It took the view that there was no distinc- tion between these two under the Sales Tax Act, the reason given being that such a distinction "would appear to be contrary to the spirit behind the entire section 2(h) of the Act". It also took into consideration that "there is the obvious injustice in levying a tax on an amount which not only the dealer has not received, but which he has foregone". The Board, therefore, "both on grounds of law and of equity" held that the assessee was entitled to a deduction on that account. This forms the subject-matter of the first question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the con- tracts of sale were made when the goods were situate in this Province? (2) Is it not more in consonance with the evidence that the contracts were made by the agents of the assessee when the goods were out of this Province? (3) Whether all the transactions had been rightly dealt with on a single basis? (4) Whether the Board should not be called upon to state a further case in respect of what had actually happened? (5) Whether this Court had not inherent power to order a fresh investigation of the whole case? 9.. In our opinion, it is now too late to go behind the finding recorded by the Board of Revenue. There is no doubt that the ques- tion whether there was any evidence in support of a particular finding is a question of law; but the attempt made by the learned counsel for the assessee to raise that question is belated. He never suggested to the referring authority to frame any such question; at no stage of the proceedings before the Sales Tax Authorities was this question mooted. It is true the assessee made an attempt to show before the Board of Revenue by filing the four affidavits referred to above that the facts were different from what the Assistant Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the amount covered under this head was not actually payable to or received by the dealer. The facts have not been properly stated so far as this question goes; but the learned Advocate-General who argued this part of the case on behalf of the Department did not ask for any further or fresh statement. We must therefore go upon the consideration that the facts as stated by the Board are that the amount in question was not as a matter of contract between the parties payable to or receivable by the dealer. It was for the Department to show clearly that the basis for the decision of the Board, so far as this question is concerned, was wrong, and as we are not satisfied on that score we must answer the question in the affirmative, that is to say, in favour of the assessee. 12.. It remains now to consider the second question referred, whether the amount covered by railway freight actually paid by the purchaser is liable to be excluded from "sale price." The first sentence in the question as framed itself answers the question; that is to say, if the contract between the parties was that it was to be a free delivery, all costs incidental to handling the goods up to the other end wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods to be supplied. 14.. It may sound a little unjust, as the President, Board of Revenue, observed in his opinion, that the amount covered by railway freight should be charged against the dealer when that amount did not really become his property. But such considerations do not weigh with the Court in construing a fiscal statute where the words of the statute have to be construed in their natural sense, irrespective of considerations of hardship. In this connexion the following observations of Lord Cairns in Partington v. The Attorney-General(2) are instructive: "I am not at all sure that, in a case of this kind-a fiscal case- form is not amply sufficient; because, as I understand the principle of all fiscal legislation it is this: If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hard- ship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute, what is call ..... X X X X Extracts X X X X X X X X Extracts X X X X
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