TMI Blog1961 (5) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5(2)(a)(ii) of the Act, can the same sales tax be recovered over again from the selling dealer and will not such recovery amount to an abuse of the process of law? (3) In the facts and circumstances of the case was not the Tribunal justified in taking the declaration Ex. A into consideration under clause (c) of sub-rule (1) of rule 61 of the Orissa Sales Tax Rules, 1947, as amended after the Amendment Act XX of 1957?" 2.. The relevent facts are as follows: The opposite party is a dealer in betel leaves; he was assessed on a gross turnover of Rs. 20,704 and a taxable turnover of Rs. 5,400 under section 12(5) of the Orissa Sales Tax Act for the quarter ending 31st December, 1951. On first appeal, the assessment was enhanced in that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument as evidence and allowed the deduction under section 5(2)(A)(a)(ii). Therefore, the State Government made an application for reference of certain questions to this Court under section 24(1) of the Act for decision. The Sales Tax Tribunal made an order of reference on the said application whereby it referred the said questions of law, hereinbefore quoted, for opinion of this Court. 3.. In the present context, the settled legal position as laid down by this Court-so far as relevant for the purpose of answering the said questions-is this: Where on the strength of a certificate of registration of a registered dealer in which certain goods were specified as being intended for resale in Orissa, the registered dealer purchased those goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts necessary to establish exemption under section 5(2) (a)(ii) of the Orissa Sales Tax Act, 1947, are not found irrespective of whether a declaration was obtained under rule 27(2) of the Orissa Sales Tax Rules, 1947; the production of a declaration under rule 27(2) is not always obligatory on the part of the selling dealer when claiming the exemption; it is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of section 5(2) (a)(ii) of the Act: (Member, Sales Tax Tribunal, Orissa v. S. Lal Co.[1961] 12 S.T.C. 25.; Netrananda v. Commissioner of Sales Tax, Orissa[1961] 12 S.T.C. 169.. 4.. Considered in the light of this legal position, broadly stated above, our answer to the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes, then the dealer, will not get the benefit of the deduction allowed in section 5(2)(a)(ii), and instead the price of goods so utilised shall be included in the dealer's taxable turnover. This interpretation of the section and the proviso is supported by the decisions cited above. Our answer to this question, accordingly, is in the negative, namely, that section 5(2)(A)(a)(ii) of the Act on the one hand and its proviso on the other are not mutually exclusive in their applicability to a particular sale. 6.. Re: question No. 2-In the light of the settled legal position as stated above, our answer to first part of this question is in the affirmative, namely, that if sales tax has been realised from the purchasing dealer, irrevocably, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure Code. In the present case, the State Government had objected to the admission of a document purported to be a declaration under rule 27(2) signed by the purchasing registered dealer on various grounds as aforesaid. The Tribunal, however, overruled the said objection and admitted the document in evidence. In view of the fact, that the tax has already been realised from the purchasing dealer as aforesaid, it is needless to express any opinion on the point. 8.. The result, therefore, is that the answer to question No. 1 is in the negative; the answer to first part of question No. 2 is in the affirmative, and the answer to second part of question No. 2 is in the negative as aforesaid; with regard to question No. 3, apart from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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