TARACHAND HAJARIMAL OIL MILLS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These three reference under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the said Act"), raise a common question of law. These reference arise out of Reference Applications Nos. 32, 33 and 34 of 1970 respectively. These three reference applications relate to the assessment periods of 1st April, 1962, to 31st March, 1963, 1st April, 1963, to 31st March, 1964, and 1st April, 1964, to 31st March, 1965, respectively. Apart from the fact that the assessment periods are different, the facts in these references, in all material particulars, are the same. Hence, the three reference are being disposed of by us by a common judgment.

(2.) The facts giving rise to these references are as follows : The applicant carried on the business of manufacturing edible oil. He used to purchased groundnuts from his commission agents. Although the applicant was a registered dealer, he did not hold a recognition certificate and the purchases effected by him were without the issue of declarations in form 15. His vendors were under the impression that the applicant would furnish declarations in form 15 and, as such, they charged tax at 1 per cent. only instead of 2 per cent. It may be mentioned that the groundnuts are covered by entry 6 of Part II of Schedule B to the said Act and attract general sales tax at 2 per cent. The vendors of the applicant were assessed and it was found that the sales by them to the applicant were without declarations in form 15. Therefore, the vendors were charged to tax at 2 per cent. general sales tax on the said sales of the groundnuts to the applicant. The vendors having already recovered 1 per cent. earlier sent a debit note for the additional amount of 1 per cent. general sales tax to the applicant. One of such vendors was Shetkari Sahakari Sangh Ltd., Malegaon, from whom the applicant purchased groundnuts of the taxable amount of Rs. 4,63,949 during the period from 1st July, 1962, to 30th June, 1963, of the taxable amount of Rs. 4,66,654 during the period from 1st July, 1963, to 30th June, 1964, and of the taxable amount of Rs. 4,23,022 during the period from 1st July, 1964, to 30th June, 1965, respectively. As the said Sangh had originally recovered the tax at 1 per cent. as aforestated and had sent a debit note for the additional 1 per cent. general sales tax for equivalent amounts, the applicant requested the Sales Tax Officer to grant him set-off under rule 41-A(a) of the Bombay Sales Tax Rules, 1959 (hereinafter referred to as "the said Rules"). His submission was that a sum equivalent to 2 per cent. general sales tax had been recovered from him by the said Sangh and he was entitled to the set-off as provided under rule 41-A(1) of the said Rules. This argument of the applicant was rejected by the Sales Tax Officer on the ground that he had failed to produce the proofs showing the payment of additional general sales tax at 1 per cent. The applicant preferred appeals before the Assistant Commissioner of Sales Tax, who confirmed the orders of the Sales Tax Officer and dismissed the said appeals. He went by way of second appeals before the Sales Tax Tribunal, who also dismissed the said appeals. The question, which has been referred to for our consideration, is as follows :

(3.) As the arguments turn on the interpretation of rule 41-A(1) of the said Rules, it may be useful to set out the same here. The material part of rule 41-A(a), as it stood at the relevant time, provided as follows :