BASUDEO NIRMAL Vs. ASSAM BOARD OF REVENUE

JUDGEMENT

(1.) BY this petition under article 226 of the Constitution of India, the petitioner has prayed that the appellate order by the Assam Board of Revenue, Gauhati, dated 26th October, 1972, whereby the Board upheld the order dated 14th June, 1971, passed by the Assistant Commissioner of Taxes, Gauhati Zone, Gauhati, confirming the order of assessment made by the Superintendent of Taxes dated 18th November, 1969, be quashed. The relevant period with which we are concerned is the assessment year ending on 31st March, 1969. The short question submitted for our decision is whether an ayurvedic medicine called mritasanjiwani sura attracts levy of Finance sales tax.

(2.) THE petitioner is a dealer in ayurvedic medicines prepared by Baidyanath Ayurvedic Bhawan. By his order dated 18th November, 1969, the Superintendent of Taxes assessed the petitioner for Finance sales tax on the turnover of mritasanjiwani sura. Aggrieved by the levy of tax on the said medicine, the petitioner filed an appeal before the Assistant Commissioner of Taxes; but the same was rejected, whereupon he preferred a second appeal before the Board of Revenue. As stated above, that too was dismissed by the impugned order dated 26th October, 1972. For a correct appraisal of the arguments advanced by the learned counsel for the petitioner, it is necessary to refer to items Nos. 28 and 67 of the Schedule appended to the Assam Finance (Sales Tax) Act, 1956. These two items, as they stood in 1962, read as follows :

(3.) AT this juncture, we may point out that the amendment contained in items Nos. 28 and 67 are not retrospective a the word used are "shall be substituted" and "shall be inserted" respectively. Therefore, these phrases added in the year 1972 cannot be read in the original text of the schedule. There is thus no escape from the conclusion that mritasanjiwani sura being an ayurvedic preparation, was not subject to the levy of Finance sales tax for the period ending on 31st March, 1969, as the law then stood. In this view of the matter, the impugned orders by the Superintendent of Taxes, the Assistant Commissioner of Taxes and the Assam Board of Revenue are liable to be struck down, to the extent Finance sales tax has been levied on mritasanjiwani sura.