SHANKERJEE RAUT GOPALJI RAUT Vs. STATE OF BIHAR

JUDGEMENT

(1.) The Commercial Taxes Tribunal of Bihar has stated a case and referred to the High Court under Section 25(1) of the Bihar Sales Tax Act, 1947 read with Sub-sections (1) and (3) of Section 47 of the Bihar Sales Tax Act. 1959 the following question of law-

(2.) The facts mentioned in the statement of case prepared by the Tribunal are these. The assessee--Messrs Shankeriee Raut Gopalji Raut -- is a dealer which carried on business at Jainagar in the district of Darbhanga in various commodities. The assessee is a registered dealer under the Bihar Sales Tax Act, and bears registration certificate No. 1086. For the period commencing from the 1st of April, 1958 to 31st of March. 1959 it was assessed to sales tax on a gross turnover of Rs. 5,64,631/- and a taxable turnover of Rs. 2,92,319/- by the Assistant Superintendent of Commercial Taxes, Darbhanga, by his order dated the 25th of October, 1959, a copy of which is annexure A appended to the statement of case. The assessee claimed before the said officer that the sale of goods made to customers in Nepal to the extent of Rs. 1,11,220/- should be exempted from assessment of sales tax on the ground that the sales aforesaid took place in the course of export of the goods out of the territory of India. While rejecting the claim of the assessee, the Assistant Superintendent of Commercial Taxes held that since the delivery of goods was taken from the assessee by the Nepal purchasers at Jainagar in Bihar, transport cost to Nepal had been paid for by the customers, and although the custom receipts were in the name of the assessee, the custom duty was paid by the Nepal purchasers, the sale was completed at Jainagar in the State of Bihar and hence the assessee was not entitled to claim any exemption on account of the sales to Nepal purchasers. The assessee went up in appeal to the Deputy Commissioner of Commercial Taxes, Patna; a copy of his petition of appeal together with the grounds is annexure B. The Deputy Commissioner, by his order dated the 20th of July, 1962, a copy of which is annexure C, allowed the deduction of Rs. 12,076/- from out of the total turn over on account of sales to Nepal Purchasers on the ground that the despatches to this extent to Nepal were made by rail. The claim of exemption from tax on the balance of the amount was disallowed by him also. The assessee then moved the Board of Revenue in revision--a copy of the revision petition is annexure D -- against the appellate order of the Deputy Commissioner. The assessee claimed before the Board that the sales to Nepal dealers took place in the course of the export of the goods out of the territory of India within the principle of law engrafted in Section 5 (1) of the Central Sales Tax Act, 1956 (Act 74 of 1956) as the sales had occasioned the export of the goods outside the territory of India to Nepal. While making this claim, the assessee through its lawyer gave the following modus operandi of the sales, as appears from the order of the Board of Revenue, a copy of wihch is annexure E,--

(3.) The assessee filed an application before the Board under Section 25 (1) of the Bihar Sales Tax Act, 1947 as the proceeding related to its liability under the said Act. The application for reference was transferred to the Tribunal after its constitution under Section 34A of the Bihar Sales Tax Act, 1959 in view of the proviso to Sub-section (3) of Section 47 of the said Act. The reference accordingly has been made by the Tribunal.