STATE OF ORISSA Vs. TANGUDA GOPALAM & SONS

JUDGEMENT

(1.) THE Member, Sales Tax Tribunal, has stated a case on an application of the Commissioner of Sales Tax made under section 24(1) of the Orissa Sales Tax Act (hereinafter referred to as the "Act"), and has referred the following question for opinion of the court : "Whether, on the facts and in the circumstances of the case, the Sales Tax Tribunal is right in holding that the short credit being negligible, the rejection and disallowance of the claim of rebate in its entirety is not justified."

(2.) THE period of assessment is 1968 -69 covering four quarters ending on 30th June, 1968, 30th September, 1968, 31st December, 1968, and 31st March, 1969. There is no dispute about the gross turnover or the taxable turnover of the assessee. Quarterly returns were filed in time and admitted tax was duly credited to the treasury deducting rebate as provided in section 13(8) of the Act. Certain excess collections of tax made by the assessee were also credited to the treasury along with the tax. The Sales Tax Officer found that there were small shortfalls in calculation of rebate as would appear from the tabular statement appended below : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Quarter Tax Rebate Tax Rebate Shortfall ending collected claimed payable admissible in deposit (i) (ii) (iii) (iv) (v) (vi) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 30 -6 -68 17,929.58 179.29 17,844.17 178.44 0.85 9/68 17,409.09 174.09 17,323.42 173.23 0.86 12/68 13,861.77 138.61 13,729.27 137.29 1.32 3/69 16,871.89 168.72 16,858.84 168.59 0.13 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The assessing officer found that the assessee had not paid the entire tax due and, therefore, held that the rebate claimed was not admissible. Therefore, the demand in the respective quarters for the amount claimed by way of rebate out of the tax was required to be deposited.

(3.) TO dispose of the dispute raised, some of the provisions of section 13 of the Act have to be referred to. Sub -section (1) of that section provides : "Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals as may be prescribed." Sub -section (2) makes the provisions : "Before any dealer furnishes the returns required by sub -section (1) of section 11, he shall, in the prescribed manner, pay into a Government treasury the full amount of tax due from him under this Act according to such returns and shall furnish, along with the returns a receipt from such treasury showing the payment of such amount or a crossed bank draft or a crossed cheque covering such amount and drawn in favour of the prescribed authority." Rules 36 and 37 of the Orissa Sales Tax Rules make provision for payment of tax. Sub -section (8) makes provision for rebate and runs thus : "A rebate of one per centum on the amount of tax payable by a dealer shall be allowed, if such tax is paid by the dealer on or before the due date of payment." The explanation appearing at the foot of the section indicates the due date. Two conditions have been prescribed in sub -section (8) to earn rebate, namely, (i) the entire tax must be paid, and (ii) such payment must be made on or before the due date. In our opinion, the Tribunal was not right in holding that if there is a short credit of the tax, disallowance of the entire rebate was not justified. Rebate is a concession, entitlement to which is conditional. The conditions must, therefore, be strictly satisfied before the assessee can be found entitled to the rebate. There is no provision in law that if there be a shortfall, the entire rebate cannot be withheld.