TMI Blog1960 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... d it is not possible to formulate a definition that would be applicable to all cases. Section 12(5) talks of a period, and the period may consist of more than one quarter. The return has, however, to be submitted in Form IV which read with rule 20 of the Orissa Sales Tax Rules, 1947, requires the assessee to furnish details of his turnover for each quarter. The assessment must, therefore, be made on the taxable turnover of each quarter - unable to hold that the assessment for the last three quarters was bad - Appeal allowed. - Civil Appeal No. 710 of 1957, - - - Dated:- 20-9-1960 - DAS S.K., HIDAYATULLAH M., DAS GUPTA K.C., SHAH J.C, RAJAGOPALA AYYANGAR N. JJ. J.M. Thakar, Advocate, and J.B. Dadachanji, Advocate of Messrs Rajinder Narain Co., for the respondent. R. Gopalakrishnan, Advocate, and J.B. Dadachanji, Advocate of Messrs Rajinder Narain Co., for the intervener. N.C. Chatterjee, Senior Advocate (H.J. Umrigar and T.M. Sen, Advocates, with him), for the appellant. -------------------------------------------------- The Judgment of the Court was delivered by S.K. DAS, J.- This is an appeal on a certificate granted by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and determined the taxable turnover to be Rs. 61,250 for each of the twelve quarters, the first quarter ending on June 30, 1948, and the last quarter ending on March 31, 1951. It also imposed a penalty of Rs. 500 for each quarter. The orders of assess- ment were made on two dates-on July 4, 1951, for four quarters and on August 29, 1951, for the remaining eight quarters. Against these orders of assessment the respondent went up in appeal to the Assistant Collector of Sales Tax, Sambalpur. One of the pleas taken before the appellate authority was that the respondent was not a dealer in Orissa inasmuch as the sales of bidi leaves were not effect in Orissa. In the course of the hearing of the appeal this plea was given up, and it was admitted by the respondent's pleader that "the sales were completed in Orissa". The appeal was then heard on the contentions that- (1) the turnover determined was excessive, and (2) that no penalty should have been imposed. These contentions were rejected by the appellate authority. The respondent then moved in revision, but the revision petition having been filed out of time was rejected by the Collector of Commercial Taxes, Orissa. The responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the appellate authority, was that the sales were completed in Orissa. Section 2(g) of the Act states: "Section 2(g)-'Sale' means, with all its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge or pledge." The admission made in this case clearly brings the sales of bidi leaves within section 2(g) of the Act; and as the sales were completed in Orissa, they were liable to tax under the Act. It was quite unnecessary to go to the second proviso to section 2(g) in view of the admission of the respondent. Learned counsel for the respondent suggested that the admission made by the respondent's pleader was an admission on a question of law and, therefore, not binding on the respondent. We do not agree. The question where a sale is completed depends on facts and is not a pure question of law. It is worthy of note that at no stage subsequent to the admission did the respondent repudiate it or challenge its correctness. Even in the writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..................................................... (iv) On an application for revision. One rupee." The first question is if section 29(2)(s) in so far as it empowers the State Government to make a rule prescribing fees for appeals and applications in revision was within the legislative competence of the Provincial Legislature. The Act was enacted in 1947 and the source of legislative power must be found in the Government of India Act, 1935. Item 48 of List II (Provincial Legislative List) in the Seventh Schedule of the said Act related to "Taxes on the sale of goods" and item 54 read: "Fees in respect of any of the matters in this list, but not including fees taken in any court." Item 1 related inter alia to "constitution and organisation of all courts except the Federal Court, and fees taken therein." The High Court held that the assessing authorities including the Assistant Collector of Sales Tax and the Collector of Commercial Taxes, Orissa, were not courts in the strict sense of the term "Court", though they exercised quasi-judicial functions under the Act. We think that that is a correct view. But it does not necessarily follow that the fees imposed under rule 59 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has come into his possession, the Collector is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless willfully failed to apply for registration, the Collector shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and the Collector may direct that the dealer shall pay, by way of penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount." It has been argued before us that one notice was issued for several quarters and an assessment was made for each quarter separately-four quarters on July 4, 1951, and eight quarters on August 29, 1951. This, it is contended, was illegal. We are unable to accept this contention as correct. Section 12(5) talks of a period, and the period may consist of more than one quarter. The return has, however, to be submitted in Form IV which read with rule 20 of the Orissa Sales Tax Rules, 1947, requires the assessee to furnish details of his turnover for each quarter. The assessment must, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
