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COMMISSIONER, TRADE TAX UP LKO. versus S/S NATIONAL SURGICALS

High Court of Judicature at Allahabad

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Commissioner, Trade Tax Up Lko. v. S/S National Surgicals - SALES/TRADE TAX REVISION DEFECTIVE No. 1886 of 1998 [2006] RD-AH 20307 (30 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.22

TRADE TAX REVISION NO.(1886) OF 1998

AND

TRADE TAX REVISION NO.(1888) OF 1998

AND

TRADE TAX REVISION NO.(1895) OF 1998

AND

TRADE TAX REVISION NO.(1897) OF 1998

AND

TRADE TAX REVISION NO.(1898) OF 1998

AND

TRADE TAX REVISION NO.(1900) OF 1998

The Commissioner, Trade Tax, U.P., Lucknow.        ....Applicant

Versus

S/S National Surgicals, Khurja. ...Opp. Party

***************

Hon'ble Rajes Kumar, J.

These six revisions under section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act")  are directed against the order of Tribunal dated 22.02.1997 relating to the assessment years 1984-85, 85-86, 86-87, 87-88, 89-90 and 90-91.

Brief facts of the case are that the dealer/opposite party (hereinafter referred to as "Dealer") was carrying on the business of manufacture and sale of surgical cotton. During the years under consideration, dealer had claimed to have sold surgical cotton to the Government departments and claimed the benefit of concessional rate of tax under section 3-G of the Act. Admittedly, Form 3-D, which is required under Rule 12 C of U.P. Trade Tax Rules, 1948 (hereinafter referred to as "Rules") for the claim of benefit of concessional rate could not be furnished. In the absence of Form 3-D assessing authority rejected the claim of the benefit of concessional rate of tax. The view of the assessing authority has been upheld in first appeals. Tribunal, however, allowed the benefit of concessional rate of tax on the ground that furnishing of Form 3-D is not mandatory. Tribunal held that the dealer had filed the affidavit stating therein that the supply were made to the Government departments.

Heard learned Standing Counsel. Despite the service of notice, no one appears on behalf of the dealer.

Learned Standing Counsel submitted that the Tribunal has erred in holding that the furnishing of Form 3-D is not mandatory for the claim of benefit of concessional rate of tax under section 3-G of the Act. He submitted that the submission of form for the claim of exemption or the benefit of concessional rate of tax has been held mandatory by this Court in the case of M/s Govind Ram Tansukh Rai & Co. Vs. Commissioner of Sales Tax, U.P., reported in 1985 UPTC, 1060 which has been upheld by the Apex Court in the case of Commissioner of Sales Tax Vs. Prabhudayal Prem Narain, reported in 1988 UPTC, 1204.

I have perused the order of the Tribunal and given my anxious consideration to the argument of learned Standing Counsel.

Section 3-G of the Act read as follows:

"Section 3-G. Special rate of tax on certain sales---

(1) Notwithstanding anything contained in section 3-A or section 3-D or section 3-F, and subject to the provisions of sub-section (2) and such conditions and restrictions, if any, as may be specified by the State government by notification, the tax on the turnover of sales of goods to a department of the Central Government of a State Government or to a Corporation or Undertaking established by or under a Central Act or an Uttar Pradesh Act, or to a Government Company as defined in section 617 of the Companies Act, 1956 (not being a Nagar Mahapalica, Municipal Board, Zila Parishad, Town Area Committee, Notified Area Committee, Cantonment Board, a University or an educational institution or an institution managed for the time being by an authorized controller) shall, if the dealer furnishes to the Assessing Authority a declaration obtained from such Department, Corporation, Undertaking or Company in such form and manner, and within such period, as may be prescribed, be levied and paid at the rate for the time being specified in sub-section (1) of section 8 of the Central Sales Tax Act, 1956, or at such rate as the State Government may, be notification, specify in relation to any sales, unless the goods are taxable under any other section of this Act at a rate lower than the said rate.

(2) The provisions of sub-section (1) shall not apply to the sale of any goods which are purchased by such Department, Corporation, Undertaking or Company for re-sale or fur use in the manufacture or packing of any goods, other than electrical energy, for sale, or if such Department, Corporation, Undertaking or company has no office or establishment situated in Uttar Pradesh.

(3) If after purchasing the goods against the declaration referred in sub-section (1), any such Department, Corporation, Undertaking or Company uses or disposeses of the same in the manner mentioned in sub-section (2), such Department, Corporation, Undertaking or Company shall, without prejudice to any other action, including the imposition of penalty, that may be taken under this Act, be liable to pay an amount equal to the difference of tax calculated at the rate otherwise applicable to the purchase or sale of such goods under this Act, and that the applicable under sub-section (1)."

Rule 12-C of the Rules read as follows:

"Rule 12-C. Special rate of tax on certain sales.

(1) The declaration to be obtained under sub-section (1) of section 3-G shall be in Form III-D. The declaration shall be duly filled in and shall be signed by the principal officer.

Explanation ---

Principal Officer means the drawing or disbursing officer, or the Head of the office or department, as the case may be, or an officer duly authorized by any general or special order of the competent authority or by a resolution of the Board of Directors of the Company, Corporation or Undertaking, as the case may be, to make purchases of the goods at a time on behalf of such department, company, corporation or undertaking as the case may be, at least upto the amount specified in the declaration.

(2) A dealer who claims to have sold any goods to any department of the Central Government or of a State Government or to a Company, Corporation or Undertaking owned or controlled by the Central Government or by a State Government for any purpose other than that referred to in sub-section (2) of section 3-G shall obtain a declaration referred to in sub-rule (1) and shall submit the same to the assessing authority in the manner and within the time specified in sub-rule (2) of Rule 12-A.

(3) The provisions of sub-rules (3) to (22) of rule 12-A shall mutates mutandis apply for purposes of rule 12-C."

Section 3-G of the Act provides that the tax on the turn over of sales of goods to a department of the Central Government or of a State Government or to a Corporation or Undertaking established or constituted by or under a Central Act or an Uttar Pradesh Act, or to a Government Company as defined in section 617 of the Companies Act, 1956 (not being a Nagar Mahapalika, Municipal Board, Zila Parishad, Town Area Committee, Notified Area Committee, Cantonment Board, a University or an education institution or an institution managed for the time being by an authorized controller) shall, if the dealer furnishes to the assessing authority a declaration obtained from such department, corporation etc. be levied and paid at the rate for the time being specified in sub-section (1) of section 8 of the Central Sales Tax Act, 1956, or at such rate as the State Government may, by notification, specify. Under section 8 (1) of the Act rate of tax provided is 4%.  The certificate, which is required to be furnished for the purpose of section 3-G of the Act is Form 3-D prescribed under Rule 12-C of the Rules. A bare perusal of the aforesaid section, it is clear that the furnishing of certificate, for the benefit of concessional rate of tax, is condition precedent and, therefore, it is mandatory. In the case of Commissioner of Sales Tax Vs. Prabhudayal Prem Narain, reported in 1988 UPTC, 1204 (Supra) on consideration of similar provisions, Apex Court held that the filing of form for the benefit of exemption or concessional rate of tax is mandatory. Similar view has been taken in In Trade Tax No.(660) of 1998, The Commissioner, Trade Tax, U.P., Lucknow Vs. S/S Escort Limited, Surajpur Industrial Area, Noida, decided on 06.11.2006.

In  view of the law laid down by the Apex Court and this Court referred hereinabove order of the Tribunal is erroneous and is liable to be set aside.

In the result, all the revisions are allowed. Order of the Tribunal dated 22.02.1997 is set aside.  Tribunal is directed to pass appropriate order under section 11 (8) of the Act.

Dt.30.11.2006

R./


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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