BHAGAWAN STORE Vs. COMMISSIONER OF SALES TAX ORISSA

JUDGEMENT

(1.) MR . Mohanty at the opening of the case made it absolutely clear that in this writ application he does not challenge the order refusing to give stay, or any order of assessment which will be gone into by the appropriate authorities.

(2.) THE only point canvassed in this writ application is that the amendment introduced into rule 27 (3) of the Orissa Sales Tax Rules, 1947, on 26th of March, 1963, by Notification No. 10751-F. is ultra vires section 5 (2) (A) (d) (i) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as the Act ). To appreciate this contention, these two provisions may be extracted. Section 5 (2) (A) (d) (i), as it stood during the relevant period, is :

(3.) THE matter may be examined from another point of view. The scheme of the Act is single point taxation. In the case of a purchase tax, the tax is ordinarily realised from the first purchaser but if the second purchaser purchases from the first purchaser who is a registered dealer and the article comes within the ambit of section 3-B, then the second purchaser is entitled to deduction from his taxable turnover. The process may go on in this manner and ultimately the same article may be purchased by the hundredth man without paying the purchase tax. The proviso puts the burden on the purchasing dealer to establish that either all or any of the earlier purchasers had paid the tax or at any rate had the liability to pay tax. This is a very heavy burden and could not be introduced by a rule when the Act does not intend to impose such a burden. It is open to the Legislature to introduce such a clause in the Act itself. We are told that the same has been done by the amending Act 15 of 1968.