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TMI Blog1957 (11) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... skins and had contended that rule 23(5) of the rules under the Mysore Sales Tax Act, 1948, which pertained to the sales of hides or skins by dealers other than licensed dealers in hides or skins, was ultra vires. The learned Magistrate took the view that this rule was in conflict with section 5(vi) of the Act and was therefore ultra vires, and that the non-payment of the tax due under the assessment made under that rule was no offence. Consequently he acquitted all the accused in the said three cases. The question of the validity of rule 23(5) being common to all these three cases, these appeals were all heard together. Rule 23(5) runs as follows: "(5) Sale of hides or skins by dealers other than licensed dealers in hides or skins shall, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case were licensed dealers who were unaffected by the said sub-rule, and also because the learned Advocate-General of Madras did not dispute before the High Court and the Supreme Court that rule 16(5) was repugnant to section 5(vi) of the Madras General Sales Tax Act. It may be stated that the contentions urged on behalf of the appellants are all based on grounds which have been accepted in a case, Abdul Rahman v. State of MysoreI.L.R. 1956 Mys. 266; 8 S.T.C. 205.(which was a case decided by the High Court of the former State of Mysore) and in a decision of the Andhra High Court, V.M. Syed Mohamed and Co. v. State of Andhra [1956] 7 S.T.C. 465. Sri Ullal, the learned counsel appearing for the respondents has based his arguments on a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to tax, have been set out in rules 22 and 23. Where the dealers in hides and skins choose not to subject themselves to such conditions and restrictions, then the sales of hides and skins by them will be covered by sub-rule (5) of rule 23. The contention of Sri Ullal on behalf of the respondents is to the effect that the benefit of liability to be taxed at only a single prescribed point in a series of sales of hides and skins, is a benefit which is available under clause (vi) of section 5 to all dealers in hides and skins and that no restrictions or conditions can be imposed in the rules so as to take away this benefit. The benefit of liability to tax at only a single prescribed point, under clause (vi), is not an unconditional or unres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rward on behalf of the appellants. In these circumstances, we prefer to adopt the reasonings which have been accepted by the High Court of Mysore (of the former State of Mysore) in Abdul Rahman v. State of Mysore and AnotherI.L.R. 1956 Mys. 266; 8 S.T.C. 205. , and by the Andhra High Court in V.M. Syed Mohamed & Co. v. State of Andhra[1956] 7 S.T.C. 465.We are satisfied that sub-rule (5) of rule 23 is intra vires and that the learned Magistrate erred in reaching the conclusion that the said rule was ultra vires. Certain other arguments have also been addressed by the learned counsel for the respondents. It is urged by him in regard to the respondent in Criminal Appeal No. 103 of 1953 that the order of assessment is not a valid order, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four quarters and it was urged that on this ground the order of assessment is not valid. It is seen from the said order of assessment that the assessment of tax has been made separately in regard to the turnover of each quarter. The learned counsel was unable to show any provision, on the strength of which it can be said that an order of assessment like this would be invalid, merely because it pertained to more quarters than four, particularly when for the purpose of the assessment of the tax, the turnover of each quarter had been taken separately into consideration. The learned counsel was also unable to show how any prejudice was caused by this procedure which had been adopted by the Assessing Officer. In any event, this was a matter, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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