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TMI Blog1972 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... question, and so could be disposed of by a common judgment. The petitioner in W.P. Nos. 417 and 418 of 1967 is a dealer in hides and skins. The petitioner in S.T.R.P. No. 43 of 1967 is a dealer in copra and coconuts. Their turnover during the relevant assessment years was subjected to sales tax under the Mysore Sales Tax Act, but the goods which were purchased by these two dealers and which were declared goods within the meaning of section 5(4) were subsequently sold in the course of inter- State trade and commerce. So they claimed a refund of the tax which had been paid by them. That refund is what is claimable under the proviso to section 5(4) of the Mysore Sales Tax Act, which reads: "5. (4) Notwithstanding anything contained in sub-section (1) a tax under this Act shall be levied in respect of the sale or purchase of any of the declared goods mentioned in column (2) of the Fourth Schedule at the rate and only at the point specified in the corresponding entries of columns (4) and (3) of the said Schedule on the dealer liable to tax under this Act on his taxable turnover of sales or purchases in each year relating to such goods: Provided that where tax has been paid in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is undisputed that the declared goods which were purchased by the petitioners were subsequently sold by them in the course of inter- State trade or commerce. So they became entitled to the refund of the tax paid by them on their purchases inside the State under the proviso to section 5(4) of the Mysore Sales Tax Act, whose provisions are similar to the provisions of section 15(b) of the Central Sales Tax Act. That the goods purchased by the petitioners and subsequently sold by them are declared goods within the meaning of section 5(4) of the Mysore Sales Tax Act is also not controverted. So the only question which arises for decision is whether the Commercial Tax Officer could have refused the refund on the ground that no application was presented by the petitioners before us within the time allowed by rule 39-A(3). 5.. Mr. Srinivasan appearing for the petitioners asks us to say that that part of rule 39-A which prescribes the form and the period of limitation within which the claim should be made is not authorised by the proviso to section 5(4) of the Mysore Sales Tax Act. We are of the opinion that he is right in making the submission that that part of rule 39-A, which prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to make a rule prescribing a period of limitation for a claim to a refund which could be made under the proviso. We respectfully concur in the view expressed in that case. So the claim to a refund could not have been refused by the Commercial Tax Officer on the ground that it was not made within the period of limitation prescribed by rule 39-A(3). 9.. The next question is whether in the case of the petitioners in the two writ petitions before us the refund could have been refused on the ground that they did not make an application in form 4-A of which rule 39-A(2) speaks. Although the petitioner in S.T.R.P. No. 43 of 1967 did make an application in form 4-A, the petitioner in the other two writ petitions did not. What he did was to merely make an application in the usual way for a refund. But we do not think that the omission on his part to make an application in the prescribed form disentitled him to the refund claimed by him. 10.. It will be seen that the particulars to be specified in form 4-A are those which at the stage when that application has to be made are fully known to the Commercial Tax Officer or could be otherwise gathered. Column 1 asks the applicant to mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular form is really one of form and is therefore not imperative. It is not contended in the cases before us that any information which was necessary to enable the Commercial Tax Officer to make the refund to which the dealers were admittedly otherwise entitled, was not furnished by them. The only ground on which the refund was refused by the Commercial Tax Officer was that the applications were not made within time, and that they were not made in a particular form. 14.. Any other view would result in the defeat of the right to ask for an adjustment, of the amount of which a refund could be claimed under the proviso against the tax payable by him under section 5(4) which is recognised by the decision of this court in Bhandari Rajmal Kusalraj v. State of Mysore (1967) 11 Law Rep. 877., would stand defeated (sic). Such adjustment could not be claimed on the view taken by the Commercial Tax Officer unless the dealer made the application within the prescribed period of limitation and in form 4-A. 15.. That being so, we quash the orders of the Commercial Tax Officer in the two writ petitions and the order which was made against the petitioner in S.T.R.P. No. 43 of 1967 and direct the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refunded to such person in such manner and subject to such conditions as may be prescribed." Apparently in exercise of the powers conferred by section 5(4) of the Mysore Sales Tax Act, 1957, the Government of Mysore framed rule 39-A. That rule reads: "Refund of tax in the case of certain types of sales of declared goods.- (1) The tax levied under sub-section (4) of section 5 in respect of the Page No: 363 sale or purchase inside the State of any goods specified therein shall, if such goods are sold in the course of inter-State trade or commerce, be refunded in the manner and subject to the conditions prescribed in this rule to the dealer who has made the inter-State sale and has paid tax under the Central Sales Tax Act, 1956 (Central Act 74 of 1956), in respect of such sales. (2) Every such dealer who claims a refund under the rule, shall within the time allowed in sub-rule (3), submit to the assessing authority a statement in Form 4-A. (3) The statement referred to in sub-rule (2) shall be submitted so as to reach the assessing authority not later than the date on which the return of turnover for the period in respect of the sale in the course of inter-State trade or commer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not thought it necessary to go into that question as, in our opinion, sub-rules (2) and (3) of rule 39-A are wholly unreasonable rules and consequently these cannot be sustained. Sub-rule (3) of rule 39-A provides that before a person is entitled to refund under section 15 of the Central Sales Tax Act, 1956, as well as under section 5(4) of the Mysore Sales Tax Act, 1957, he must have made the refund application within the time before which he should have submitted his sales tax return. In many States the dealers have to submit quarterly returns. Under rule 18 framed under the Mysore Sales Tax Act, 1957, we are informed that a dealer will have to submit his annual return within 30 days of the end of the financial year. That means even if a sale in the course of inter- State trade has been made on the 31st March of a year, the refund application will have to be made within 30 days from that date. The position will be worse still if the dealer is required to submit quarterly returns. The learned counsel for the State was not in a position to tell us whether in the Mysore State the dealers have to file quarterly returns. In our opinion the impugned rule is merely an attempt to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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