STATE OF MADRAS versus R. NAND LAL & CO.

STATE OF MADRAS

R. NAJ."ID LAL & CO.

April 14, 1967

[J. C. SHAH, S. M. SIKRI AND V. R.AMASWAM!, JJ.]

Central Sales Tax Act, 1956, s. 8(4)-Form 'C' as prescribed by Central Government to be filled by purchasing dealer for selling dealer to get benefit of lower rate under s. 8(1)(b)-Central Sales Tax (Mad-ras) Rules, 1951 R~le 10(1) requiring each declaration in 'J!'orm 'C' to contain one transaction only-Sale by Madras dealer to Pun1ab dealer--Punjab dealer declaring more than one transaction In one form-Whether contravenes Rule 10(1)-State Government does not have power wukr s. 13(3) ands. 13(4) (e) of the Cenlral Act to place such restriction on outside deale1'-Deslrabillty of Central Government making rules uruler s. 13 (1 )(d) in this regard.

The assessee firm was 'dealer' ·in Madras State. For the year 1959-60 the firm was taxed at 7% on certain sales effected to registered dealers in the Punjab on the ground that the declaratfons taken from dealers in Punjab in Form 'C' were not in accordanee with r. 10(1) of the Central Sales Tax (Madras) Rules, 1957. The latter rule required that there must be separate declaration in respect of each transaction whereas the declarations in the present case were in respect of several transactions each. The appellant firm claimed that on the turnover in 9uestion it should have been a"essed at one per cent only, as laid down Ill s. 8(1) of the Central Sales Tax Act, 1956. The claun was turned down by the Sales-tax Authorities and the Tribunal, but the High Court held that r. 10(1) of the Central Sales Tax (Madras) Rules, 1957 appli-ed only to transactions of purchase by dealer in the State of Madras and not to the purchasing dealer in the State Of Punjab, that the Madras State was incompetent to frame rules governing the conduct of the JIU!-chasing dealers in the Punjab, and that in any event r. 10(1) was dtrec-tory and not mandatory. The State appealed.

. HELD: (i) Ex facie r. 10(1) imposes no obligation upon dealer m the State of Madras wishing to sell goods : It applies to clear wishing ''? purchase _goods from another dealer. The High Court was fUrther right m holdmg that under the scheine of the Central Sales Tax Act and the . Rules framed under that Act by the State of Madras the injunction agamst the J>Urchasing dealers in r. 10(1) did not apply to dealers in the State of Pun1ab. [650B-651A] A~cordingly the proviso to r. 10(1) which directs that no single de-clarat10n shall cov~r '!'Ore than one ln!DSaction of sale except in certain cases has no apphcatton to purchasmg dealer outside the State of Madras. Nor does r. 10(2) impose any binding obligation upon the selling dealer in Madras to obtain separate declaration form in respect of each sale transaction. [ 651 C-F]

The appellants were therefore to be taxed at the rate of one per cent and not seven per cent on the turnover in question.

(ii) rule prescribing that declaration by purchasing dealer shall (!fl contam more than one transaction can only be made by the Central overnment under s. 13(l)(d) and the State Governments do not have

power under s. 13(3) and s. 13(4) (e) to make any such rule. The situation which had arisen in this case could have been avoided if instead of each State making its rules requiring that no single declaration shall cover rnol'le than one transaction, the Central Government in exercise of the power under s. 13(1) (d) of the Act had made the rule. [6510-H; 652A-Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 604 of 1966.

Appeal by special leave from the judgment and order dated August 5, 1964 of the Madras High Court in Tax Case No. 131 of 1963 (Revision No. 87).

G. Ramanujam and A. V. Rangam, for the appellant.

K. Srinivasan and R. Gopalakrishnan, for the respondent.

The Judgment of the Court was delivered by

Shah, J.

M/s. R. Nand Lal & Company-hereinafter called

'the assessee'-are dealers in wool at Vaniyambadi in North Arcot District in the State of Madras. In proceedings for assess· ment of sales-tax for the year 1959-60 the assessees were assessed to pay tax at the rate of seven per cent. on turnover of Rs. 2,08,343-05 from sales effected by them to certain registered dealers in the State of Punjab. The assessing authority declined to assess the turnover at one per cent. as prescribed by s. 8 ( 1) of the Central Sales Tax Act, 1956, because in his view the assessees had submitted declarations in Form 'C' covering two or more transactions contrary to the first proviso tor. 10(1_) of the Central Sales Tax (Madras) Rules, 1957. The Appellate Assistant Commissioner and the Sales Tax Appellate Tribunal, Madras confirmed the order of the assessing authority. The High Court of Madras, in exercise of its revisional jurisdiction, set aside the order of the Sales Tax Appellate Tribunal, and declared that the assessees were liable to pay tax on the turnover in dispute at the lower rate. The State of Madras has appealed to this Court with special leave.

Section 8 of the Central Sales. Tax Act, 1956 (as amended by

Act 31 of 1958) insofar as it is material provided :

"(1) Every dealer, who in the course of inter-State

trade or commerce--

(b) sells to registered dealer c;>t~er than the Goy-

ernment goods of the description referred to in sub-section ( 3) ;

shall be liable to pay tax under this Act, which shall be one per cent. of his turnover.

( 2) The tax payable by any dealer on his turnover in so far

as the turnover or any part thereof relates to the sale of goods

in the course of inter-State trade or commer4:e not falling within sub-section (1 )-

(b) in the case of goods other than declared goods, shall .be calculated at the rate of seven per cent. or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher;

" ( 4) The po visions of sub-section ( 1 ) shall not apply to any sale in the course of ~r.State trade or commerce unless the dealer selling the ~oods furnishes to the prescribed authority in the prescribed manner-

( a) declaration duly filed and signed by the regis-tered dealer to whom the goods are sold con-D taining the prescribed particulars in prescribed form obtained from the prescribed authority; or

It is common ground that the turnover was in respect of goods ·

of the class specified in the certificate of registration of the regis-tered dealer purchasing the goods as being intended for resale by him or for use by him in the process of manufacture of goods for sale. registered dealer selling goods in the course of inter.State trade or commerce of the description referred to in sub-s. ( 3) is liable under s. 8 (1) of the Central Sales Tax Act, to pay .tax only r at the rate of one per cent. on his turnover. But to qualify him• self for that rate of tax he has to furnish to the prescn'bed autho-rity declaration duly filled and signed by the Tegistered dealer to whom the goods are sold. Such declaration must contain the prescribed particulars in the prescribed form obtained from the prescribed authority. If the selling dealer fails to furnish the declaration in the prescribed form, he is liable to pay tax at the higher rate mentioned in sub-s. (2)(b) of s. 8.The respondents did furnish declarations in Form 'C' pres-cribed under the Rules framed by the Central Government in exercise of the powers ve&ted bys. 13 (1) (d) of the Central Sales Tax Act. But each such declaration covered more transactions of 8 sale than one and the aggregate value of the transactions record• ed in each declaration exceeded Rs. 5,000/-The sales-tax authorities and the Tribunal were of the view that these declara· lions contravened the express direction of the rule made by

SUPRBMB COURT RBPORTS

the Madras State in exercise of the ~wers under s. 13(4)(e) of the Central Sales Tax Act. The Htgh Court held that r. 10(1) of the Central Sales Tax (Madras) Rules, 1957, applied orily to transaction of purchase by dealer in the State of Madras, and not to the purchasing dealer in the State of PU!!jab; that the Madras State was incompetent to frame rules governing the con-duct of the purchasing dealers in the Punjab; that since the cor-responding rules framed by the State of Punjab under s. 13 ( 4) ( e) of the Central Sales Tax Act did not include provision requiring separate form to be used for each sale transaction, the purchasing dealers were not obliged to comply with r. 10(1) of the Madras Rules, and that since the Madras selling dealers could not compel the purchasing dealers to comply with the rules relating to furnish-ing of separate declaration forms ordained by the Madras Rules, the declarations were not defective. In any event, the High Court held, r. 10 (1 ) of the Madras Rules was directory and not man-datory.

The assumption made by the High Court that no rule was framed by the State of Punjab under s. 13 ( 4 )_ ( e) ~f the Central Sales Tax Act requiring tho purchasing dealers in the State of Punjab to issue separate declaration form in respect of each individual transaction is erroneous. It is conceded before us that the Punjab Government had in purported, exercise of the powers under sub-ss. (3) & (4) of s. 13 of the Central Sales Tax, 1956, made r. 7(2-A) with effect from February 17, 1958 that:

"No single declaration in Form 'C' prescribed under the Central Sale<> Tax (Registration and Turnover) Rules, 1957, shall cover more thart one transaction of sale except when the total amount of sales does not exceed five thousand rupees."

But, for reasons which we will presently set out, the judgment of r the High Court must still be affirmed.

Subcsection ( 4) of s. 8 of the Central Sales Tax Act provides

that in order to qualify himself for the lower rate of tax in respect of sales in. the course of inter-State trade or commerce, the dealer selling goods has to furnish to the prescribed authority in the prescribed manner declaration duly filled and sign~ by the registered dealer to whom the goods are sold. The expressions "prescribed authority" and "prescribed manner" mean the autho-rity and manner prescribed by rules under the Act. Section 13 (1) of the Central Sale~ Tax Act, 1956, authorises the Central Gov-ernment to make rules, providing, inter alia, the !orm in wh~ch and the particulars to be contained in arty declart10n of cerufi-cate to be given under the Act. By sub-s. (3) .of s. ~ 3 the St~te Government is authorised to make rules not mcons1stent With the provisions of the Act and the rules made under sub-s. ( 1) to

carry out the purposes of the Act, and by sub-s. ( 4) of s. 13 the State Government Js, iQ. particular and without prejudice to the powers conferred by sub-s. (3), authorised to mak;e rules for all or any of the purposes set out therein including "the authority from whom, the conditions subjec,t to which and the fees subject to payment of which any form of declaration prescribed under sub-s. ( 4) of section 8 may be obtained, the manner Jn which the form. shall be kept in custody and records relating thereto main-tained, the manner in which any such form may be used and any such declara,tion may be furnished."In exercise of the power conferred by s. 13 ( l) ( d) the Central Government has prescribed the form of declaration to be furnish· ed by the purchasing dealer under s. 8 ( 4). That is Form 'C'. The form is in three sections-the "counterfoil", the "duplicate" and the "original". The "original" contains at the foot of the Form the following Note :-

"(To be furnished to the prescribed authority. in accordance with the rules framed under section 13 ( 4) ( e) by the appropriate State Government.)"

The Madras State Government presuming to act in exercise of

autho~ty under s. 13(3) and s. 13(4)(e) framed the Central sates Tax (Madras) Rules, 1957, r. 10(1) of which reads as follows;

"A registered dealer, who wishes to purchase goods from another such dealer on payment of tax at the rate applicable under the Act to sales of goods by one regis-tered dealer to another, for the purpose specified in !he purchasing dealer's certificate of registration, shall II obtain from the assessinii; authority Jn the City of _Madras and the registenng ·authority af other places blank declaration form prescribed under rule 12 of the Central Sales T~ (~egistration a!1d Turnover) Rules, 195? ~or furn:shing 1t ~o the selling dealer. Before furnish1!1g the declarl\tlon to the selling dealer, the purc~as1!1g d~ler or any responsible person authorized by hllll: in th1S behalf shall fill in all the required parti-~ulars m the form ~nd s~all also affix his usual signature m- the space proVlded m . the form for this purpose Thereafter, the counterfoil of the form shall be retain: ed by the purchasing dealer and the other two portions marked "original" and "duplicate" shall be made over by him to the selling dealer :

Provided that no single declaration shall cover more than on~ transa.ct!on of sales except-

(a) in cases where the total amount covered by one declaration is equal to or Jess than Rs. 5,000 or such other amount as the State Government may, by general order, notify in the Fort. St. George Gazette, and

Ex facle, this rule imposes no obligation upon dealer in the State of Madras wishing to sell goods : it applies to dealer wishing to purchase goods from another dealer. The argument that cl. ( 1) of r. 10 is intended to apply to registered dealer in the. State of Punjab is negatived by the scheme of the Central Sales Tax Act and the Rules framed thereunder. By s. 7 of the Central Sales Tax Act, every dealer liable to pay tax under tho Ac.t has to make an application for registration under the Act to such authority in the appropriate State as the Central Govern. ment may by seneral order specify. The authority to be specified is designated m the Central Sales Tax (Registration and Tum· over) Rules, 1957, framed by the Central Government under s. 13 ( 1 ) , the "notified authority" : vlde r. 2 ( c). Rule 3 provide11 that an application for registration under s. 7 shall be made by dealer to ,the notified authority in Fonn 'A'. In exercise of the powers conferred by sub-s. ( 1) of s. 7 of the Central Sales Tax Act,.1956,·the Central Government issued notification No. S.R.O. 643 dated February 22, 1957, specifying the persons mentioned in Col. ( 3) of the Schedule thereto as the authorities to whom the dealer~ of the description in C-0L (2) shall make the application for registration. Item 1 of the Schedule requires dealer having singfe place of business in S'ate to make an application to the authority competent to register him under the general sales tax law of the State if he were liable to be So registered : and item 2 provides that .the dealer having more than one place of business in State shall make an application to the authority competent to register him in respect of the principal place o1 business under the general sales tax Jaw of the State if he were liable to be so regis!ered. registered dealer contemplated by r. lO is there-fore registered in . the State where he has his place of 'business. The expression "assessing authority" is defined in the Central Sales Tax (Madras) Rules; 1957, as meaning any person authorized by the s•ate Government to make any assessment under the Maaras General Sales Tax Act, 1959 (Madras Act 1 of 1959). The dealer has again to obtain the form of declaration from • t¥ assessing authority in the State of Madras. These are clear 1ndi-. cations that the rules framed by the Madras Government were intended to apply to dealers within . the Stat~ of ~adras. ":he . High Court was, in our judgment, nght m holdmg that under the scheme· of the Central Sales Tax Act an~. the Rules framed under that Act by the State of Madras, the m1unc-

tion against the purchasing dealers in r. 10( 1) did not apply to dealers in the State of Punjab. It is unnecessary on rhat view to express any opinion on the question whether the State Gov-vernment could, in exer<:ise of the powers under s. 13 ( 4), impose upon dealers not within the State, obligations to comply with conditions relating to the contents of the 'C' Form declara-

tions.

Since, r. 10( 1) requiring ,that separate declaration form in respect of each individual transaction shall be furnished was intended only to apply to dealers in the State of Madras, and not to dealers outside the State, proviso to r. 10( 1) which directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to. purchasins dealer outside the State of Madras. Rule 10(2) provides:

"A registered dealer who claims to have made sale to another registered dealer shall, in respect of such claim attach to his return in Form I the portion mark-D ed "original" of the declaration received by him from the purchasing dealer. nie assessing authority may, in its discretion, also direct the selling .dealer to pro· duce for inspection the portion of the declaration marked "duplicate". "

But this rule does not direct that declaration covering more than one transaction of sale shall not be given. The rules fram- ·' ed by the Madras Government do not otherwise impose any binding obligation upon the selling ·dealer in the State of Madras to obtain separate declaration form in respect of each sale transaction, nor do the rules visit him with penalty on failure to comply with the requirement.

' We are constrained to observe that the rule making authori-ties have failed to appreciate the scheme of s. 13 of the Central Sales Tax Act. We are of the ?,Pinion that it was not within the competence of the State authorities under s. 13 ( 3) & ( 4) of the central Sa,Jes Tax Act to provide that single declaration cover-ing more than one transaction shall not be made. Authority to prescribe such an injunction cannot have its source in s. 13 ( 3) or s. 13 ( 4 )( e) : it can only be in the authority conferred by cl. ( d) of s. 13 ( 1 ) by the Central Government. The Central Govern-ment has, in exercise of the power under s. 13 ( 1 )( d) prescribed' the fonl?- of declaration and the particulars to be conWned in the· ~ecl8!'•tton. directio~ ~a! there shall !'e separate declara,. ti:>n m ~pect of, each individual transaction may appropriately be made m exercise of the power coriferred undet s. 13 (1 ) ( d) .. The State Go\oernment is undoubtedly empowered to make rules under sub-ss. (3) and (4) of s. 13: but the rules made by the·

•652 SUPllBMB COUllT llEPOllTS

.State Government must not be inconsistent with the provisions of the Act and the rules made under sub-s. ( 1) of s. 13 to carry out .the purposes of the· Act. If the .authority to make rule pres-.cribmg that the declaration shall not contain more than one transaction can be made only under s. 13(l)(d), the State Gov-ernment cannot exercise that authority. The situation which has arisen in this case could have been avoided, if instead of each State making its rules requiring that no single declaration shall cover more than one transaction, the Central Government in exercise of the power under s. 13 (1 )( d) of the Act had made the rules.

The appeal fails and is dismissed with costs.

Appeal dismissed.