GOTILAL BHONRILAL Vs. C T O

JUDGEMENT

(1.) THESE 7 applications before us have been filed by the dealer-assessee under section 15 of the Rajasthan Sales Tax Act, 1954 (No. 29 of 1954), for short ("the Act" herein), for a direction to the Board of Revenue for Rajasthan, Ajmer ("the Board"), to state the case and refer the questions of law arising out of its common order dated 2nd March, 1979, passed in 7 revisions. THESE applications were pending on 1st May, 1985, when the Rajasthan Sales Tax (Amendment) Act, 1984 (No. 20 of 1984) ("the Amendment Act"), had come into force. According to section 13 (10) of the Amendment Act, these applications are deemed to be applications for revision under section 15 of the principal Act as substituted by the Amendment Act. We have heard them as revisions and propose to dispose them as such. The accounting years involved in these cases are 1963-64, 1964-65, 1965-66, 1966-67, 1967-68, 1969-70 and 1970-71. The assessing authority levied purchase tax on ajwayan, sua, methi and poppy seeds. He also levied sales tax on urad, gram and bardana. Penalties were imposed under section 7aa and section 16 (1) (c) of the Act. The dealer-assessee went in appeal and the Deputy Commissioner (Appeals), Commercial Taxes, Ajmer, by a common order dated 13th April, 1976, accepted the appeals in part. Six revisions were filed against the order of the Deputy Commissioner (Appeals), Commercial Taxes, Ajmer. THESE were against the appellate order dated 13th April, 1976, and revision No. 971 of 1976 was against the order dated 22nd April, 1976. The Board of Revenue by its common order dated 2nd March, 1979, partly accepted the seven revisions. The Board found as under : (1) that the penalties were rightly imposed upon the dealer-assessee under section 16 (1) (c) of the Act; (2) that the assessing authority should determine the tax to be levied on the sales of sua, methi and ajwayan deeming these commodities to be oil-seeds and, therefore, declared commodities under section 14 of the Central Sales Tax Act, 1956 (No. 74 of 1956) ("the C. S. T. Act" herein); (3) that urad and gram cannot be treated as cattle feed; (4) that proceedings were commenced well within 8 years and as such were not batted by limitation as contended on behalf of the dealer-assessee; and (5) that the dealer-assessee is liable to pay purchase tax under section 5a of the Act. THESE cases were remanded to the assessing authority to redetermine the quantum of purchase tax to be levied on the petitioner, basing the tax on the purchase price determined from the books of accounts of the dealer-assessee or if this is not feasible by allowing an appropriate deduction on account of handling, transportation and incidental expenses, as well as a reasonable margin of profits while computing the purchase price of the commodities with reference to the sale price; (6) that the sales tax was leviable on the sale of bardana; (7) that the penalties could not be imposed under section 7aa of the Act and so amount of penalties involved in revisions Nos. in 976 and 977 of 1976 were set aside; and (8) that the levy of interest by the assessing authority is valid.

(2.) THE dealer-assessee has submitted these applications to this Court for directing the Board to refer the following questions for the opinion of this Court : (1) Whether an assessment could be made under section 10 (1) (b) of the Act where no returns have been filed under section 7 of the Act and where no returns have been filed, nor the assessment has been made even after the closure of the accounting year ? (2) Whether in such a case the only remedy open to the revenue is to have resort to section 12 (1) of the Act ? (3) Whether the assessing authority could not pass the assessment order on the basis of the notice dated 14th December, 1972, issued by the assessing authority as it was not a notice under rule 55a of the Rajasthan Sales Tax Rules, 1955 ("the Rules" hereinafter) ? (4) Whether the dealer-assessee is liable to pay purchase tax on the goods purchased by him from unregistered dealers and farmers in the State and sold through commission agents outside the State under section 5a of the Act ? (5) Whether the dealer-assessee is liable to pay purchase tax on the goods purchased by him from unregistered dealers and farmers and sold by him in the course of inter-State trade and commerce and paid tax under the Central Sales Tax Act ? (6) Whether section 5a of the Act is ultra vires the Constitution being violative of article 286 ? (7) Whether section 5a is an enactment which provides for charging sales tax on the goods sold outside the State and goods sold inter-State under the guise of purchase tax and is, therefore, ultra vires ? (8) Whether urad (black gram) and gram are cattle feed and exempt from tax under item No. 9 of the Schedule ? (9) Whether the penalty under section 16 (1) (c) of the Act can be imposed on the assessee even where the department has failed to prove that the assessee had no reasonable cause for not filing the return ? (10) Whether interest under section 11b can be charged for not depositing the tax under section 7 (2a) for monthly advance payment ? When these cases were partly heard on 11th December, 1985, Mr. K. C. Bhandari, learned counsel for the C. T. O. , submitted that notice under section 10 (1) of the Act was issued to the dealer-assessee in respect of the assessment years under consideration and not under section 12 of the aforesaid Act. On that day for the proper appreciation of the arguments that were raised by the learned counsel for the parties, we considered proper to direct Mr. K. C. Bhandari, learned counsel for the C. T. O. , to obtain the record of the assessments of the dealer-assessee in respect of the assessment years under consideration. In compliance of that, the record of the C. T. O. relating to the aforesaid accounting years was obtained by the learned counsel for the C. T. O. and that was perused by the learned counsel for the dealer-assessee as well as by us.

(3.) ACCORDING to Mr. Bhandari the aforesaid returns were in accordance with form S. T. 5. The matter does not rest at that. Consolidated statement showing the turnover, tax payable, etc. , in respect of each of the aforesaid seven assessment years were also filed which according to Mr. N. P. Gupta being not in accordance with form S. T. 5 and section 7 (1) of the Act are no returns in the eye of law. In that connection he invited our attention to the cases under the Income-tax Act, 1961, and the Indian Income-tax Act, 1922.