TMI Blog1967 (2) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... as it imposes or authorises the imposition of, a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely: (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed two per cent. of the sale or purchase price thereof, and such tax shall not be levied at more than one stage; (b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State." 4.. In the light of the provisions of clause (a) tax leviable at the point of first purchase in respect of these goods under section 5(4) of the Mysore Act is limited to two per cent. The mandate of clause (b) of section 15 of the Central Act was given effect in the Mysore Sales Tax Act by the addition of a proviso to sub-section (4) of section 5 in the following terms: "Provided that where tax has been paid in respect of sale or purchase of any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... publication of this rule in the Official Gazette, if the due date for the submission of the return of turnover for the said period has already elapsed. (4) The burden of proving the claim preferred shall be on the dealer. (5) On receipt of the statement in Form 4-A, the assessing authority shall, if it is satisfied after such scrutiny of the accounts and after such enquiry as he considers necessary that the claim is admissible, pass an order refunding the tax. (6) If the statement submitted appears to the assessing authority to be incorrect, incomplete or otherwise not in order, it shall, after making such enquiry as it considers necessary and after giving the dealer an opportunity of being heard, pass such orders thereon as it thinks fit." 7.. The principal argument about the validity or effectiveness of this rule as well as to some extent the proviso itself is that whereas the condition prescribed as condition precedent by section 15(b) of the Central Sales Tax Act for a person to become entitled to receive refund of State tax paid by him in the sale of goods in the course of inter-State trade, rule 39-A has proceeded beyond that and imposed an additional condition preced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or purchase, must be subject to such restrictions as the Parliament may prescribe and those restrictions at present are the ones found in section 15 of the Central Sales Tax Act. 10.. Hence, the simple question is one of merely ascertaining the meaning of the language employed in the said section without any predilection or suggestion derivable from what different people may regard as the object of the statute. 11.. As we have already stated, we have no doubt that the one and the only condition for the refund of the State tax is that the goods should have been sold in the course of inter-State trade. To say further, as sub-rule (1) of the impugned rule 39-A says, that the assessee claiming refund must have paid tax under the Central Sales Tax Act in respect of such sale, is to add a further condition precedent to the acquisition of right to refund itself. Such a result cannot be achieved in exercise of the powers given to prescribe conditions subject to which the refund may be claimed. Such conditions to be valid, must be conditions which do not add to the condition precedent to the acquisition of right to refund, but may deal with such matters as form of application, time of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the second proviso appended to rule 18(1)(b) and sub-rule (2) of rule 21 of the Mysore Sales Tax Rules, tax as calculated by the assessee or admitted to be due, has to be paid along with the return. Nevertheless it is argued that the tax so paid on an assessment may not be the actual tax as assessed ultimately by the officer. In such a case, there may not be tax actually paid, at any rate, on turnover in respect of which tax had not been paid. If such a situation should arise, it appears to us that the proper view to take is that as the necessity for actual payment is followed by a statutory claim for refund, the assessing authority should either make an adjustment in calculation or regard so much of the turnover assessable under section 5(4) of the State Act as is subject of refund under section 15(b) of Central Act, is not amenable to the said levy. In any event a form cannot be depended upon to invalidate a rule or the provision of the statute. The normal and well understood principle is that all forms should be read as intended to give effect to the relevant rule or statutory provisions and are also liable to modification or alteration to suit the circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pass such order as may be correct and just in the circumstances of the cases. There should however be and there will be a separate order in each of these cases directing refund of Central sales tax collected which becomes immediately refundable in view of the decision of the Supreme Court. 20.. In the other four writ petitions Nos. 2463, 2464, 2465 and 2466 of 1966, which refer to different periods, the position on facts is similar. 21.. But before dealing with them, we should record that the Government Pleader has taken notice on behalf of not only the State Government but also the two assessing authorities impleaded as first and second respondents, because the point involved is the same as in other cases and may be dealt with conveniently at one hearing. 22.. In all these four matters, the Central sales tax paid by the assessee has not been adjusted, but a separate demand made for payment of Mysore sales tax under sub-section (4) of section 5. 23.. Hence the proper order to make in each of these cases is the following and we order accordingly: The assessing authority is directed to refund Central sales tax paid by the petitioner in each of these cases. He is further ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
