TMI Blog1984 (8) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... 949. The said company has further been stated to be a registered dealer under the provisions of Bengal Finance (Sales Tax) Act, 1941, as amended (hereinafter be referred to as the said Act). It has also been stated that the business of the said company was and is mainly the growing and manufacture of tea at its own tea estates, for sale, and they sell tea direct to their customers and also by auction through M/s. W.S. Cresswell Company (P) Ltd., who were respondent No. 5 in the rule, and who were not appearing in this appeal, in terms of or in accordance with the age-old rules, regulations, practice, procedure, convention, custom and usages for the necessary auction sales as framed and/or followed by the Calcutta Tea Traders' Association, who were respondent No. 6 (hereinafter be referred to as the said association) in the rule and who are not also appearing in this proceeding. It has also been stated that the said respondent No. 5, is a broker-member of respondent No. 6 as mentioned above and they are hereinafter be referred to as the said broker and the said Association respectively. The said company has also stated that following such age-old practice as mentioned above an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auction held in Calcutta under the auspices of the said association. In fact, the said company has stated that finally an amount collectively at Rs. 7,25,002.71 was claimed under the provisions of the said Act as mentioned above. The provisions of rule 3(30)(a) which was available and applicable at the relevant time are quoted hereunder: "(30) Sales of tea made at auction held in Calcutta under the auspices of the Calcutta Tea Traders' Association on or after the 28th October, 1959, to a registered dealer: Provided that a dealer who wishes to make under this sub-rule a deduction of his turnover in respect of any such sale from his gross turnover shall, on demand, produce- (a) in the case of a sale made through a broker-member, a copy of the relevant account of sale rendered by the broker-member and a declaration in writing signed by the broker-member or by such other person as may be authorised in writing in this behalf by the broker-member that the goods in question are specified in the certificate of registration of such broker-member and have been sold to registered dealers authorised under their respective certificates of registration to purchase tea either for resale or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of such auction sales. It has further been alleged that besides the concerned accounts sales, the said company also produced before the respondent-Commercial Tax Officer concerned, at the time of the assessment for the year 1964, a letter dated 5th May, 1967, issued by the said broker in reply to the said company's letter dated 2nd May, 1967, for the purpose of explaining to the officer concerned that the age-old practice and procedure by the said broker and other broker-members of the said association and which indicated that sales of tea by auction was fully implemented by compilation of accounts sales as shown to the said officer by the said company and the same also fully satisfied the terms of the proviso to sub-rule (a) of rule 3(30) of the Rules. The copies of the correspondences as mentioned above, have been disclosed with the original petition. The said company have stated that on enquiry, they have learnt that on production of similar accounts sales furnished by the said broker and other broker-members of the said association, the claims of other fellow dealers and/or manufacturers of tea like that of the said company, deductions have been allowed under section 5(2)(a)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected their claim under section 5(2)(a)(vi) of the said Act read with rule 3(30) of the Rules, although the books of account with supporting evidence as claimed for in terms of the proviso (a) to that rule, were duly produced and on the basis whereof, the prodecessor-in-interest of the concerned respondent-Commercial Tax Officer allowed such claim in the earlier assessment orders till 1963 and similar allowances have also been given to other sister organisations. It has been stated that thereafter, on due demand of justice being made, the said company moved two applications under article 226 of the Constitution of India for the two years ending 31st December, 1960, and 31st December, 1964. It has also been stated that those rules as obtained, were numbered as Civil Rule Nos. 4235 (W) of 1968 and 4244 (W) of 1968. It was also the case of the said company that in those two rules their prayers for the grant of injunction were allowed, initially without any condition for a limited period and it was directed that such injunction as issued, would continue on furnishing bank guarantees. The said company has stated on furnishing guarantees, the interim orders as made, were directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted service and selling charges. In fact, for such inaction or inappropriate action, the said company has claimed to have suffered doubly for no fault on their part. It would appear from the statement as made in the petition that in terms of the concerned impugned assessment order as mentioned above, the respondent-Commercial Tax Officer had also served the said company on 27th November, 1969, a demand notice in form VII and bearing No. SG/368A/5438 dated 21st November, 1965, under rule 55 of the concerned Rules, demanding Rs. 20,520.23, for the balance of the assessed tax after adjustment of the tax of Rs. 231.40 as already paid by the said company with the return. The affidavit-in-opposition, which was dated 30th May, 1973, was filed on behalf of respondent Nos. 1 to 4 in the rule by Shri Nihar Ranjan Basu, Charge Officer of the office of the Commercial Tax Officer, Siliguri. The deponent has claimed that he is well acquainted with the facts of the case. He has claimed that tea is sold at Calcutta by auction and each lot is either sold separately or independently and thus, the auction of each lot constitutes a separate sale. According to him, at the time of assessment reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. But, Mr. Mukherjee, after having necessary inspection of the records stated that in fact no such appeal has been preferred. We are referring to the above circumstances, as lengthy arguments were advanced by Mr. Mukherjee on application of principles of res judicata or principles analogous thereto in the instant case and claimed that since no appeal has been taken from the determination in Civil Rule No. 4235(W) of 1968 and the present determination has been made on the basis of reasons as shown therein, this appeal should be held and deemed to be not maintainable and that too on the application of the principles of res judicata as mentioned above. Mr. Mukherjee, while on the question of res judicata and the non-maintainability of the present appeal on that ground, stated that as on the same facts and circumstances, a case of the said company and which was decided on merits in Civil Rule No. 4235(W) of 1968 which was relevant for the assessment year ending 31st December, 1960, so section 11 of the Code of Civil Procedure would be a bar in maintaining this appeal, as under that provisions no Court shall try any suit or issue in which a matter has been directly and substantiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, referred to the case of Devilal Modi v. Sales Tax Officer, Ratlam [1965] 16 STC 303 (SC); AIR 1965 SC 1150, where, while dealing with the principles of constructive res judicata and the applicability of the same to writ proceeding, it has been observed that though Courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by the Supreme Court are binding and must be regarded as final between the parties in respect of matters covered by them, must receive due consideration. In that case the assessee challenged the validity of sales tax imposed upon him for a particular year by a petition under article 226. The petition was rejected upon merits. An appeal was also dismissed by the Supreme Court upon merits. The assessee had attempted to raise two more additional gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1961] 41 ITR 685 (SC). In that case, the appellant who was a big zamindar invested his cash surplus in shares and securities. From 1930 to 1941-42 he purchased shares to the value of Rs. 14.92 lakhs and even though he made certain profits by the sale of some shares in 1936-37 and 1939-40 they were not assessed to income-tax. In July, 1940, he borrowed the sum of Rs. 10 lakhs and made further purchases and sales of shares and securities. For the assessment year 1942-43 he made a profit of Rs. 33,174, for 1944-45 Rs. 2,62,000 and odd, for 1945-46 Rs. 3,95,000 and odd, for 1946-47 Rs. 1,57,000 and odd, for 1917-48 Rs. 1,33,000 and odd, and for 1948-49 Rs. 76,000. Considering the magnitude and frequency of the transactions and the ratio of sales to purchases and total holdings the Appellate Tribunal held that the appellant must be regarded as a dealer in shares and securities and that the profits for the years 1914-45 to 1948-49 were assessable to income-tax, and the High Court, on a reference, held that there was sufficient material to support the finding of the Appellate Tribunal and on appeal to the Supreme Court it has been observed (i) that if on the evidence which was before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of whether a notice was issued to the other side or not before such decision was given. The petitioner's only proper remedy in such a case would be to come in appeal from such a speaking order passed on merits. Fifthly, Mr. Mukherjee referred to the observations in the case of State of Punjab v. Bua Das Kaushal AIR 1971 SC 1676 which lays down that the decision in a writ petition operates as res judicata in subsequent suit on the same matter and plea of res judicata is not waived if necessary facts were present in the mind of the parties and such facts were gone into by the Court. It has also been observed in that case that the absence of specific plea in written statement and framing of specific issue of waiver by Court would be immaterial. The sixth case to which reference was made while on this point, was that of Metal Corporation of India Ltd. v. Union of India AIR 1970 Cal 15. In that case a mining company which was sought to be acquired by the Central Government under the Metal Corporation of India (Acquisition of Undertaking) Act filed a petition before the Supreme Court under article 32 of the Constitution for a rule nisi and the ground of attack in that petition was that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of joint Family of Udayan Chinubhai v. Commissioner of Income-tax, Gujarat [1967] 63 ITR 416 (SC) and lastly and ninthly, he referred to the observations in the case of Burmah Shell Refineries Ltd. v. G.B. Chand (Income-tax Officer) [1966] 61 ITR 493. While dealing with section 141(1) of the Income-tax Act, 1961, it has been observed by the Division Bench of the Bombay High Court in that case, that under sub-section (1) of section 141 of the Income-tax Act, 1961, the Income-tax Officer, for the purpose of making a provisional assessment, has to proceed on the basis of the return made by the assessee. The correctness of the return as to the factual position stated in the return has to be accepted for the time being and the assessment should be made on the basis that the facts stated in the return are correct. He has no jurisdiction to enquire into questions of mixed fact and law and if he does so, the assessment and the demand notice based thereon can be quashed by the High Court by issuing a writ. That was a case where the assessee, the Burmah Shell Refineries Ltd., submitted a return and claimed a rebate of 35 per cent on the ground that it was a company engaged in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, where it has been laid down that as a general rule the principle of res judicata is not applicable to decisions of income-tax authorities. An assessment for a particular year is final and conclusive between the parties only in relation to the assessment for that year and the decisions given in an assessment for an earlier year are not binding either on the assessee or the department in a subsequent year. But this rule is subject to limitations, for there should be finality and certainty in all litigations including litigation arising out of the income-tax Act and an earlier decision on the same question cannot be reopened if that decision is not arbitrary or perverse, if it had been arrived at after due inquiry, if no fresh facts are placed before the Tribunal giving the later decision, and if the Tribunal giving the earlier decision has taken into consideration all material evidence. A Tribunal like the Appellate Tribunal, should be extremely slow to depart from a finding given by an earlier Tribunal apart from, holding that there is also a further limitation, namely, that the effect of revising a decision in a subsequent year should not lead to injustice and the Court must alw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of entertaining the submissions on res judicata as put forward by him in the instant case would have application only when there were no such exception as mentioned in the concerned Bombay judgment reported in H.A. Shah Co. v. Commissioner of Income-tax and Excess Profits Tax, Bombay City [1956] 30 ITR 618 and not otherwise. On the basis of such determinations, Mr. Mukherjee submitted that such submissions of Mr. Dutta as mentioned hereinbefore, would be of no avail or any assistance, as admittedly this case would not come within the few exception as mentioned in the concerned Bombay judgment and there has admittedly been no new documents or any facts. While replying to the submissions of res judicata or the application of principles analogous thereto, apart from his submissions as quoted hereinbefore, Mr. Dutta also contended that the each assessment must be considered to be a separate one and as such should be deemed to be separate proceeding. In support of such submissions he first referred to the observations in the case of Dwarkadas Kesardeo Morarka v. Commissioner of Income-tax, Central Bombay [1962] 44 ITR 529 (SC). This was a determination dated 25th January, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in Mod. Serajuddin v. State of Orissa [1975] 36 STC 136 (SC) that such purchases were not purchases in the course of export and were therefore not exempt from tax, the Deputy Commissioner of Commercial Taxes invoking section 20 of the Andhra Pradesh Act issued notices proposing to revise the orders of the Assistant Commissioner granting exemption for the years 1956-57 and 1957-58. The petitioner thereupon filed petitions under article 226 of the Constitution and contended (1) that there was no illegality in the order of the Assistant Commissioner and merely because the Supreme Court changed its view or laid emphasis on certain aspects of the matter, it could not be said that there was an illegality requiring revision under section 20 of the Andhra Pradesh Act, (2) that as similar purchases were exempted by the Sales Tax Appellate Tribunal in the appeals filed by the petitioner for the years 1958-59, 1960-61 and 1963-61 and as the question of exemption of such purchases was pending before the Sales Tax Appellate Tribunal for the year 1969-70, the revisions were barred under section 20(2-A) of the Andhra Pradesh Act and on, such facts it has been held (i) that in Mod. Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1965 SC 1150 would not also apply in this case or the principles as laid down therein, should not be applied in this case, more particularly when, in that case, the question for decision was whether in a writ proceeding the principles of res judicata would apply or not and such determinations would have no application in a proceeding relating to assessments arising out of either income-tax or sales tax proceedings, the more so when, each assessment should be deemed to be and considered as a different assessment or proceeding. While dealing with the determination in Raja Bahadur Visheshwara Singh v. Commissioner of Income-tax, Bihar and Orissa [1961] 41 ITR 685 (SC), Mr. Dutta contended that the principles of res judicata as enunciated therein would not apply in this case since there is no such thing as res judicata in incometax matter and more particularly when each assessment, as mentioned hereinbefore, should be deemed to be a separate one. Mr. Dutta further contended that cases as cited by Mr. Mukherjee do not relate to subsequent events or later years as such, the assessment as made in the instant case for later year cannot be said to be barred by res judicata or princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no change in the provisions with regard to the requirements that a broker-member will have to give a declaration without disclosing the necessary and other particulars of the individual buyers, to whom the concerned sale have been effected. On the basis of the determinations and the cases as cited at the Bar, that each assessment, be it under the Income-tax Act or under the Sales Tax Act, should be considered as separate proceedings and the decision arrived at in a previous assessment proceeding on the materials before a taxing officer cannot be regarded as binding in the assessment for subsequent years or in other words, in tax matters, the decision given in respect of one assessment year is not ordinarily binding in respect of a subsequent assessment year and that too even on the same question. We have consciously used the word "ordinarily" hereinbefore and in this determination, in view of the decision of the Bombay High Court in the case of H.A. Shah Co. v. Commissioner of Income-tax and Excess Profits Tax [1956] 30 ITR 618 and their obiter even though that is not binding as in the case of Burmah Shell Refineries Ltd. v. G.B. Chand [1966] 61 ITR 493, as we feel that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular period, as made in the case of Instalment Supply (Private) Ltd. v. Union of India [1961] 12 STC 489 (SC). While on the merits of the appeal, Mr. Dutta contended after placing rule 3(30)(a) as available at the relevant time and as quoted hereinbefore that the exemption in this case was appropriately refused as separate account and declaration forms from the said broker were not produced by the said company and they had failed and neglected to duly comply with such obligations. It was the admitted case that the said company had produced the consolidated account sales statement and declarations, from the said broker and that according to Mr. Dutta, was not the requirement of the concerned Rules. That rule, according to him, required the production of separate accounts and declaration forms and that being the position, it was claimed by him that the exemption in the instant case has been rightly refused. Mr. Dutta also contended that in holding otherwise than above, in this determination as impeached in the appeal, the learned Judge was also wrong in not holding that each delivery of the chests which were included in one lot constituted separate sales and as such there were m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered by more than one delivery orders as more than one transaction. It was observed that the consignments delivered by more than one delivery orders sold in one lot in auction do not constitute sales of each consignment delivered by separate delivery orders and all tea chests sold in each lot can only be treated as one transaction and in such view of the matter, it has also been observed that one declaration form may cover all the consignments delivered by different delivery orders but sold in one lot and thus one bill can be made containing several delivery orders. It was claimed by the said company, at the time of the hearing of the rule, that in the tea auctions in Calcutta, lots of tea are put up for auction by the tea brokers are and each lot is subject to separate auction and each lot is a separate sale and the findings of the Commercial Tax Officer concerned, that it was for the said company to produce separate account of sales and declaration forms, which was not done, were improper. The learned judge, on reproduction of the account sales statement of the said broker or as issued by them, has also observed that the said broker had also certified that the tea sold in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements were not produced, which as indicated hereinbefore, was the specific requirements of rule 3(30). In support of his submissions as indicated hereinbefore or on the requirements in this case under rule 3(30), Mr. Dutta referred to the case of Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer [1965] 16 STC 607 (SC), where it has been observed that hardships or inconvenience is no basis for construction of a statute. In that case it has been specifically observed that a dealer may have lost some declarations by pure accident such as fire, theft, etc., yet he will be penalised for something for which he was not responsible, apart from observing that it is for the legislature or the rule-making authority to interfere to soften the rigour of the provisions and it is not for the Court to do so where the provisions are clear and unambiguous. Reference to such decision and the determinations was made by Mr. Dutta as according to him, the defence or stand taken by the said company for non-production of the relevant declaration forms and the account sales statement, was not proper and available to them in the facts and circumstances of the case and more particularly on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicated hereinbefore. Before dealing with the replies of Mr. Mukherjee on merits, we should also deal with some of his other submissions. Mr. Mukherjee claimed that the paperbook in the instant appeal was not in form or the same was defective, as the impugned judgment or the order on the basis whereof the determination was made by the learned judge has not been incorporated. Admittedly the order and judgment which has been printed in this paper-book referred to the determinations made by the learned judge in Civil Rule No. 4244 (W) of 1968 which is the subject-matter of F.M.A. No. 666 of 1977 and the other Rule being Civil Rule No. 4235 (W) of 1968, from which no appeal has been preferred. Since the judgment and order in the instant case has referred to the reasons in the judgment which has been printed in the paper-book of F.M.A. No. 666 of 1977. We cannot agree with the submissions of Mr. Mukherjee, that this paper-book is not in form or is defective, as we feel further that the judgment and order as printed in another paper-book, in an appeal between the same parties can be looked into and that too when the judgment and order as incorporated in the present paper-book has refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso be on the basis of the law as it is, but not as it should be. For the purpose of establishing the last limb of his submissions as mentioned, Mr. Mukherjee referred to the case of Nathmull Poddar v. Salil Kumar Chakraborty (1970) 74 CWN 793. That was a case where the learned judge had occasion to deal with the provisions of the Employees State Insurance Act, 1948, and on construction of the relevant provisions, it has been observed by him that the requirements of legislation based on socioeconomic needs of the society cannot be over-emphasised. But the judges should discuss all cases in accordance with law as it is and not in accordance with law as it should be. It has also been observed that the Court should not transgress the bounds of law. The reference to the above determination was made by Mr. Mukherjee as at one point of time, we had observed that if necessary we can direct the form of account sales statement as was produced at the relevant time by the said broker changed so that the particulars of registered buyers of tea are furnished in that statement for the benefit of the Revenue or for enabling them to know the particulars of such registered dealers in tea, to whom t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tands. Thirdly, Mr. Mukherjee relied on the case of Commissioner of Income-tax, Madras v. Ajax Products Ltd [1965] 55 ITR 741 (SC) which is also reported in AIR 1965 SC 1358 and where it has been observed that where the proviso is construed as restricting the main provision or as a substantive clause, it cannot be divorced from the provision to which it stands as a proviso. It must be construed harmoniously with the main enactment. Such determination was made by the Supreme Court while construing the second proviso to section 10(2)(vii) of the Income-tax Act, 1922. While on the point, lastly, Mr. Mukherjee referred to the Maxwell on the Interpretation of Statutes (11th Edition) and relied on the observation on beneficial construction. As indicated earlier, we again restate that the law as laid down on the question of ambiguity and beneficial construction and to which reference has been made by Mr. Mukherjee, cannot be doubted and disputed and in fact, Mr. Dutta also agreed to that but contended that a view of law should be given and taken which can be supported. In fact, he submitted that the rule regarding beneficial construction as submitted by Mr. Mukherjee would really help the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when it addressed the letter dated 25th June, 1970, to the Government. Moreover, there is no presumption that every person knows the law. It was, therefore, not possible to presume, in the absence of any material placed before the Court, that the appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated 25th June, 1970. He then referred to the case of Gurdial Kaur v. Mangal Singh AIR 1968 Punj 396, where, while dealing with the custom regarding succession amongst Jats of Punjab or the validity of the same and the effect of remarriage of the mother, it has been observed that the custom amongst Jats of Punjab prevailing prior to enactment of the Hindu Succession Act under which a mother was disinherited on her remarriage is a valid custom. It does not discriminate against Jats merely on ground of caste or race as compared to other Hindus governed by their personal law. Nor does the fact that it disinherits a mother alone on remarriage and not the father who continues to be an heir of the estate of his predeceased son in spite of remarrying, render it as discriminatory merely on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto, are inapplicable in this case, more particularly when each assessment would be a separate and distinct one and these decisions were not on taxing statutes. In fact, all the determinations excepting the one in the case of Burmah Shell Refineries Ltd. v. G.B. Chand [1966] 61 ITR 493, were claimed by Mr. Dutta to be not applicable in this case and he also stated that Burmah Shell's case or the findings therein do really support the contentions of the appellants and not those of the said company with particular reference to the determinations in the case of Motilal. Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh [1979] 44 STC 42 (SC); AIR 1979 SC 621. Mr. Dutta contended that the rule of promissory estoppel would have no application to this case and furthermore, such rule cannot be claimed to be adhered to by the said company, as there is admittedly no pleading that on such or any promise, the said company has acted to its detriment and prejudice. Mr. Dutta also contended that in this case, there has been no evidence to establish the fact that because of any promise the said company, viz., the promisees, had acted to their detriment or had altered the position to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the pen of his son and on consideration of the validity, propriety and permissibility of such signature, it has been held when the statute permits signature by an agent, the writing of the name of the principal by the agent is regarded as the signature of the principal himself. But this result follows when it is permissible for the agent to sign the name of the principal. If, on a construction of a statute, signature by an agent is not found permissible, then the writing of the name of the principal by the agent, however clearly he may have been authorised by the principal, cannot possibly be regarded as the signature of the principal for the purposes of that statute. If a statute requires personal signature of a person, which includes a mark, the signature of the mark must be that of the man himself. There must be physical contact between that person and the signature or the mark put on the document. Mr. Mukherjee also referred to the case of Sant Ram v. Labh Singh [1964] 7 SCR 756. In that case, in a suit filed by the respondent, the Munsif though holding that there was a general custom of pre-emption in the locality and that the respondent had a right to pre-empt under that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal must not be entertained. We have made an observation on the submissions on res judicata or the application of the principles analogous thereto and we do not feel inclined to have such views and observations changed even on consideration of the other case on the point as referred to by Mr. Mukherjee and the particulars whereof have been mentioned hereinbefore. As indicated earlier, on the basis of the cases cited at the Bar, we reiterate that each assessment proceeding under the said Act like those under the Income-tax Act, being separate and distinct proceeding, the determinations in earlier proceedings would not ordinarily operate as a bar on application of the rule of res judicata or principles analogous thereto on subsequent proceedings and the exceptions as indicated in the case reported in H. A. Shah Co. v. Commissioner of Income-tax and Excess Profits Tax [1956] 30 ITR 618 could be of no avail and assistance in this case. It also appeared to us that there is no ambiguity in rule 3(30)(a) of the Rules as quoted hereinbefore and such ambiguity is not available even on comparative study of the said rule with rule 3(30)(b), which was also referred to by Mr. Mukherj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een effected. The language as used clearly suggests the intention of the legislature to empower the Commercial Tax Officer concerned, to obtain due and necessary particulars of such purchasing registered dealers in tea, to protect the interest of Revenue and to check evasion of tax. The aspect, as above, was really overlooked by the learned trial judge and the use of the words that "the respondents were hypertechnical in rejecting the claim under section 5(2)(a)(vi)", was perhaps not correct and appropriate. We are further of the view that Mr. Mukherjee was not correct in his submissions that since the practice of filing account sales statement from the broker-member has been continued for a long time prior to the period as involved in this appeal or subsequent thereto, the authorities were estopped from taking recourse to rule 3(30) and for such action on their part, the practice in question should be deemed to have the stamp of law by virtue of the application of the rule of custom and antiquity. In any event, we feel that if the earlier officers had committed a mistake, that would not debar the subsequent taxing officers from demanding due compliance with the statute and ask for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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