TMI Blog1948 (9) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee's claim, for deduction of Rs. 81,928-5-3 under Section 5(2)(a)(1) of the Act from his total determined turnover of Rs. 94,346-5-6 for the quarter in question. In the opinion of the Sales Tax Officer, as set forth in his order of assessment dated the 16th July, 1945 (copy enclosed Exhibit A), production of the duplicate copies of cash receipts or bills of the kind mentioned in Rule 36(1) of the Bihar Sales Tax Rules, 1944, is man- datory; and non-compliance with the requirements of this rule on the part of a dealer means that he does not wish to claim the deduction under Section 5(2)(a)(1) of the Act. 3.. Being dissatisfied with the aforesaid assessment, the assessee preferred an appeal before the Assistant Commissioner of Sales Tax, Bhagalpur, on the 13th September, 1945, on the grounds stated in the appeal petition, a copy of which is enclosed (Exhibit B). For the reasons stated in his order dated the 5th December, 1945 (copy enclosed C), the Assistant Commissioner confirmed the assessment and dismissed the appeal. It appeared to him highly suspicious why the assessee, being a big dealer, had failed to maintain a stock register of all the purchases that he made durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing repugnant to and inconsistent with certain express provisions of the Act. (2) Whether Rule 36(1) of the Bihar Sales Tax Rules has been framed under the rule making power conferred by the Act and whether its provisions are consistent with the provisions of the Act. (3) Whether Rule 36(1) of the Bihar Sales Tax Rules overrides the express provision of the Act regarding exemption of certain goods from taxation and as such is repugnant to and inconsistent with these provisions of the Act. (4) Whether goods specifically declared to be tax-free under Sec- tion 6 of the Act can be assessed to tax simply by reason of the fact that Rule 36(1) of the Bihar Sales Tax Rules of 1944 was not complied with if there is other evidence in the state of Mahajan books of account to show that a certain amount represented the turnover of tax-free goods. (5) Whether no reliance can be placed on the credit register and other books of account in support thereof if they are not shown to be otherwise assailable simply by reason of the fact that the credit memos required by Rule 36(1) have not been produced. (6) Whether the provisions of Rule 36(1) are mandatory. (7) Whether the sales tax is a tax on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act to allow costs to either party in sales tax cases before the Board. The Board habitually passes orders awarding costs in all classes of cases that come before it, because natural justice requires it to do so, and hitherto its power to do so has not been questioned. The Board has assumed its competence by virtue of the inherent powers of the Court, to award costs in sales tax cases also though there is no express provision in the Act in this behalf. In this particular case the assessee was found to be guilty of laches, for he had failed to produce before the assessing officer or the Assistant Commissioner the cash memos and credit bills in support of his claim for exemption under Section 5(2)(a)(i) of the Act, which caused un- necessary troubles to the opposite party. The Board, therefore, considered it only proper and just that the assessee should bear the cost of the Department. It may perhaps be added that the Board has at times also awarded costs against the Government. (d) As stated in the Board's resolution dated the 15th March, 1947, in Case No. 5 of 1947 (copy enclosed Exhibit I), reference to the High Court on the point contained in question (7) above has been refuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e credit sales, no bills were produced. The evidence produced by the dealer, in his opinion, was not in accordance with Rule 36(1) of the Sales Tax Rules. The dealer appealed to the Assistant Commissioner who upheld the assessment. It was also upheld by the Commissioner in revision. In second revision the Board held that the petitioner was rightly refused exemption in respect of credit sales as the credit memos had not been produced before the Sales Tax Officer, but later, and no reliance could be placed upon them. In regard to the cash sales, as it was the first quarter after the Act came into force, they took the view that as a concession strict compliance with Rule 36(1) need not be insisted upon where there was other reliable evidence to support the assessee's claim to exemption. They, therefore, remanded the case to the Sales Tax Officer for scrutiny of the cash memos, and other papers available, for a fresh assessment upon the evidence. The assessee, dissatisfied, asked the Board for a reference to the High Court upon no less than 10 alleged questions of law, and the Board referred the three questions which I have already set out. Rule 36(1) is as follows: "36. Claims for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the dealer on the basis of such returns. But, if he is not satisfied without requiring the dealer's presence or the production of evidence that the returns in respect of any period are correct and complete, he shall serve on the dealer a notice in the prescribed manner requiring him on a date and at a place to be specified therein either to attend in person or to produce or to cause to be produced there any evidence on which such dealer may rely in support of such returns. On the day specified in the notice or as soon afterwards as may be, the Commissioner, after hearing such evidence as the dealer may produce and such other evidence as the Commissioner may require on specified points, shall assess the amount of tax due from the dealer. Sub-section (3) provides that if a registered dealer, having furnished returns in respect of a period, fails to comply with all the terms of a notice issued under sub-section (2), the Commissioner shall assess, to the best of his judgment, the amount of the tax due from the dealer. This is evidently what happened in the present case. The argument advanced before us on behalf of the assessee is that Section 6 is mandatory, and says in effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no reason why it should not be mandatory once its scope is properly understood. The third question arises out of the fact that costs were allowed against the assessee in the appellate and revisional courts because the Board considered that it was his failure to produce reliable evidence in support of his claim for exemption before the Sales Tax Officer within the specified time that caused unnecessary trouble to the Sales Tax Department. In support of this the Board merely says that it habitually passes orders awarding costs in all classes of cases that come before it because natural justice requires it to do so, and hitherto its power to do so has not been questioned. The Board has assumed its competence, by virtue of the inherent powers of the Court, to award costs in Sales Tax Act cases, though there is no express provision in the Act in this behalf. The learned Advocate-General concedes that there is nothing in the Act authorising any of the sales tax authorities to award costs. The only provision in the Act with regard to costs is that contained in Section 21(6) which provides that where a reference is made to the High Court under this section the costs, includ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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