TMI Blog1959 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... r a provisional licence on 21st February, 1953, having paid a provisional licence fee of Rs. 25 and rule 6(4)(a) and (c) of the rules. He was granted a licence on 13th May, 1953. At the end of the year the turnover of the petitioner was Rs. 3,27,214 with respect to his sales which were exclusively made to the dealers in the Madras City. His turnover in respect of such sales till the date of the formation of the Andhra State, i.e., 1st October, 1953, amounted to Rs. 99,774 and from the date of the formation of the Andhra State to the end of the assessment year, viz., 31st March, 1954, was Rs. 2,25,424. With respect to these sales made after the formation of the Andhra State he was assessed to sales tax on the ground that they were exported outside the State and the licence fee on that turnover was fixed at Rs. 350 and he was called upon to pay the balance of Rs. 325, Rs. 25 having been paid towards provisional licence fee as stated above. Several contentions were raised by the assessee before the Sales Tax Appellate Tribunal which were, however, rejected by the Tribunal. The contentions were: (1) that all his purchases in raw hides and skins were from unlicensed dealers and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as the department, therefore, are (i) as to whether a licensed dealer has a right to change his mind and demand that he should be taken on the footing of an unlicensed dealer at his choice and (ii) if so, within what time he can do so, after he obtained the licence? Normally no man is allowed to benefit by his own default but with regard to a licence under the provisions of the taxing statute the only consequence contemplated by the default appears to be to tax him on the footing that he had not taken a licence at all and when the defaulter himself courts that consequence or penalty there seems to be no apparent reason why his fault should be condoned simply because he voluntarily prays for it. The only two points urged before us now are, (1) that he should be treated as an unlicensed dealer because he has option to be so treated, and that if he has not paid the balance of the licence fee, the privilege which conferred on him an advantage cannot be given to him, and that this is a matter of his choice and the assessing authorities must therefore assess him as an unlicensed dealer; and (2) even if he is treated as a licensed dealer, as he has purchased his hides and skins i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any such evidence, we must assume that both licensed and unlicensed dealers bring their hides and skins to the shandies for sale. If so, it is for the assessee to establish that he purchased only from the unlicensed dealers. Whether he disclosed the names of the persons from whom he purchased or otherwise, there is no escape from the burden of establishing that those from whom he purchased were unlicensed dealers. Merely to establish that the purchases were made in the shandies does not satisfy the requirements of proof for obtaining the benefit of exemption. That apart, the assessee had in the beginning of the assessment year, obtained a licence and intended to get the exemptions as a licensed dealer would be entitled to from purchases made from unlicensed dealers. In these circumstances, it would have been quite possible for him to have noted the names and addresses, particularly when the purchases at each shandy were in several thousand rupees. The assessee's admitted inability to prove the purchases of Rs. 11,476-5-3 worth of hides and skins from unlicensed dealers itself supports the view that he has not been exclusively purchasing from unlicensed dealers. In these circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On receipt of the return in Form VI or Form VII or the return or returns submitted under rules 11, 13, or 15 of the Madras General Sales Tax (Turnover and Assessment) Rules, the licensing authority shall, if he is satisfied after such scrutiny of the accounts of the licensee and after making such enquiries as he considers necessary, that the return or returns are correct and complete, determine on the basis of the return or returns the turnover of dealings in respect of which the licence was issued and finally assess the licence fee payable for the year to which the licence related in accordance with the scale laid down in sub-rule (4). (b) If no return or returns are submitted, or if the return or returns submitted appear to the licensing authority to be incorrect or incomplete, the licensing authority shall, after following the procedure laid down in rules 8 and 9 of the Madras General Sales Tax (Turnover and Assessment) Rules determine the turnover dealings in respect of which the licence was issued and finally assess the licence fee payable for the year to which the licence related in accordance with the scale laid down in sub-rule (4). (c) If the licence fee as finally ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t transaction. If he intended to be taxed on a single point he is required to apply for licence by paying the licence fee and by maintaining the accounts in a particular manner as indicated in the licence itself. It is no doubt a choice given to the dealer, but if the choice is made by him he cannot be permitted, before the expiry of that licence, to change his mind and say that he will not be liable under that scheme of taxation unless of course as a penalty he is precluded from taking advantage of it. In the case of State of Andhra Pradesh v. Mohammad Azam Abdul Bari Co. [1958] 9 S.T.C. 231., a Full Bench of this Court to which one of us was a party, held that under the Act and the Rules framed thereunder, a licensed tanner is not liable to pay sales tax on the amount for which hides and skins were bought by him from an unlicensed dealer. Similarly a licensed dealer who purchased the said goods for export outside the State from an unlicensed dealer is not liable to tax on the amount for which the said goods were bought by him. It further held that section 3 of the Act is the charging section. Section 5 exempts certain commodities from taxation under section 3(1) and gives some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the business covered in the licence. But once he exercises the privilege or engages in the business on the terms of that licence, he cannot withdraw from it, nor can the Sales Tax Authorities refuse to give him the privilege, if he fulfils the conditions of the licence. The statute provides for the cancellation of the licence or for treating the assessee as an unlicensed dealer if he omits to do what he is liable to do under the licence. That is quite a different thing from saying that he has an option to ask to be treated as an unlicensed dealer. In this case, the assessee carried on the business as a licensed dealer till the end of the period of the licence. A licence under rule 16(1) of the rules enures for a whole year and it is only at the time of the assessment, seven months after the expiry of the period of the licence, that the assessee wanted himself to be treated as an unlicensed dealer, which in effect is asking the authorities to cancel the licence retrospectively for an omission deliberately committed by him, viz., by not paying the balance of the licence fee which was determined at the time of the assessment. It may be seen that under rule 6(11)(a) it is only at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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