CENTRAL COAL FIELDS LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this batch of writ application, there is challenged to the validity of sub rule (6) of Rule 15 of the Bihar State Tex Rules, 1983 (per short the Rules) so far it requires that the challan mentioned in clause (b) of sub -section (4) of section 30 of the Bihar Finance Act, 1981 (For short 'the Act') shall be in Form X. it is submitted that Form X. is ultra vires and contrary to Section 80(4)(b) of the Act. There is also challenge to the assessment order made under section 17 of the Act requiring the petitioner to pay sales tax at the rate of 4% on the value of the coal transferred from one colliery of the petitioner to another colliery belonging to the petitioner on the ground out that it constituted sale within the meaning of sale under the Act. The impugned order the dated 19.11.1996 and has been passed by the Assistant Commercial Taxes (Respondent no. 5)

(2.) UNDER Sub -section (1) of section 30 of the Act a registered dealer is to maintain accounts in respect of all goods produced raised manufactured possessed brought sold or delivered or transferred by him. Sub -section (4) of section 30 of the Act in its relevant part, is as under : 30. (4) Every dealer or a person required to keep account by sub -section (1)shall (a) ¦.. ¦ ¦ ¦ ¦ (b) issue a challan in respect of all transfer of goods from his place of business otherwise then as a result of sale in such from as the Commissioner may by notification lay down. The State Government in exercise of its power conferred under Section 58 of the Act framed Rule in super -section of earlier Rules. Sub -rule (6) of Rule 15 is as under : The challan mentioned in clause (b) of sub -section (4) of Section 30. shall be prepared in duplicate be serially machine numbered be kept in a book from and shall be only signed and dated by the clearer or his manager declared under section 15 or person in the whole time employment of the dealer : one copy of it shall be issued to the person accompanying the goods for producing on demand before any authority or Inspector appointed under section 9 and the other copy shall be returned by the dealer in a board and serially machine numbered volume. The challan shall be in Form X. 

(3.) IT is not necessary to set out Form X. as the contention of the petitioner has been that Form X. could have been prescribed by the State Government under the Rules as that power under sub -section (4) of section 30. of the Act has been conferred upon the Commissioner himself. It is therefore contended that the absence of Form X. prescribed as such is immaterial and could not be said that the requirement of sub -section (4) of Section 30 of the Act has not been met. However it could not be dispute that this Form X existed prior to the coming into force of the Act and the Rules. Mrs. Chudhary learned council for the State has referred to sub -section (2) of section 59 of the Act which repealed the Bihar Sales Tax Act, 1959 and also provided certain saving. This sub -section (2) of Section 59of the Act read as under : 59. (2) All rules orders and appointment made notification published certificates granted powers conferred and other things done under the said Act and in force on the commencement of this part shall so far as they are not inconsistent with or until they are not modified superseded of cancelled under this part be deemed to have been respectively made published granted conferred or done under this part.