TMI Blog2001 (1) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... 27, 2000, issued by the Commissioner of Taxes, Manipur, by which all traders dealing in cement, iron and steel of all sizes and chemical fertilisers are required to pay lump sum advance sales tax as detailed in the said office memorandum. 4.. The facts briefly, as stated in the writ petition, are that the petitioner is a sole proprietorship firm engaged with the retail sale of iron rod and cement having its registered office at Bishnupur Bazar, Bishnupur, Bishnupur District, Manipur. The petitioner-firm is registered under the Central Sales Tax Act, 1956 as well as under the Manipur Sales Tax Act, 1990, hereinafter referred to as the Act which is applicable to the petitioner. 5.. It is stated that a notification dated January 5, 1999 was issued by the State Government after causing due publication in the Official Gazette as required under sub-section (2) of section 6 and sub-section (2) of section 7, the provisions of which will be discussed below for convenience, by which certain amendments were made in the rates in Schedules I, III and IV of the Act and the same is annexed as annexure A/4 to the writ petition. The said notification was issued by the Principal Secretary (Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. 10.. Mr. H.N.K. Singh, learned Senior Counsel, further, submits that the writ petitioner being a dealer under Sales Tax Registration No. CST/M/7977 is liable to pay sales tax in a manner at the rate of 4 per cent of the value of the goods, namely, iron and steel and as regards cement, sales tax at the rate of 8 per cent of the value of the goods is liable to be paid by every dealer. Mr. H.N.K. Singh urges that the State respondents have to resort to such office memorandum only on the ground that if the sales tax are not recovered or taken either at the gate or at the godown, the tax so liable to be paid cannot be recovered from the dealers. It is, further, contended that the impugned office memorandum being the official instruction, is not contrary to power conferred under the Act and the Rules is practically supplementary and as such it is quite legal, valid and enforceable. Moreover, it is submitted that the petitioner is not at all prejudiced by the said impugned office memorandum inasmuch as what is the petitioner paying as sales tax in terms of the earlier office memorandum/notification dated January 5, 1999, the same would be exactly the same amount of sales tax t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reupon, such Schedule or Schedules shall be deemed to have been amended accordingly. (3) Notwithstanding anything contained in sub-section (1) or subsection (2), the State Government, after giving in the Official Gazette such previous notice as may be considered reasonable of its intention so to do may, by like notification provide that, in respect of goods specified in such notification, tax shall be levied at any point of sale within the State other than the first point or the last point or at any one or more points of sale or purchase within the State and also the rate or rates for such levy and the deductions that may be allowed while determining the net turnover liable to tax." "7. Exemption.-(1) Subject to the conditions and exceptions, if any, set out in Schedule III attached to this Act, the sales of goods specified therein shall be exempted from taxation under this Act. (2) The State Government, after giving in the Official Gazette such previous notice as may be considered reasonable of its intention so to do may, by like notification, add to, amend or otherwise modify, the said Schedule and thereupon the said Schedule shall be deemed to have been amended accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or liquidating other charges, the purchased goods of which is to be determined at a later date. Thus, the stark reality is that when the authorities going to touch any taxing provisions, it must be acted upon within the permissible limit of a specific provision under the statute, but in the instant case the Act itself is very silent as regards the imposition of the advance tax. 14.. In an effort to justify the issuance of this impugned office memorandum in total absence of any statutory sanction, Mr. H.N.K. Singh, learned counsel for the Revenue, has drawn attention of this Court to an authority of the apex Court reported in (1999) 8 SCC 449 (Dr. Mrs. Sandhya Jain v. Dr. Subhash Garg) saying that the executive decision/instruction is permissible in the absence of any specific provision in that regard. The said case relates to service matter dealing promotional aspect from Lecturer to Reader under Madhya Pradesh Medical Education (Gazetted) Service Recruitment Rules, 1987. Mr. Singh, the learned Senior Counsel for the Revenue, further submits that as the Act is silent in the present case, the executive instruction by way of the said impugned office memorandum can be accepted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, iron and steel, cement, chemical fertilisers are taken to be the subject-matter for imposing advance tax. I am of the view that the authority has only singled out these items leaving the other items and such action suffers from arbitrariness and deserves to be discouraged. 18.. I have found force on the submissions made on behalf of the petitioner and accordingly I am inclined to accept the same. Taking into account of the provisions of law as mentioned hereinabove and materials on record made available in the case in hand, it would clearly show that the impugned office memorandum was issued without any authority of law inasmuch as there is no provision in the Act for imposing of such advance tax. Therefore, it can be safely held that the present executive instruction in the shape of this impugned office memorandum deserves to be quashed and set aside. Moreso, the Commissioner of Tax has no power, authority or jurisdiction to issue such office memorandum. Being a departmental head, the Commissioner of Tax is not authorised by the statute to issue such office memorandum. It is within the exclusive domain of the State Government to impose advance tax, if any, under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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