Commissioner of Sales Tax Vs. Himalaya Chatni Bhandar - Court Judgment

Excerpt:

.....and unambiguous and does not permit any other kind of construction but a singular one. section 50 (4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso is not retrospective. scheme already finalised will not lapse and has to be completed within the time span provided under proviso. no vested right accrues in favour of authority on commencement of process of preparation of scheme, which cannot be impaired by introducing proviso. section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso uses the term shall be deemed to have lapsed. it does not convey that scheme gets automatically lapsed. .....referred to as 'the act'), the board of revenue has referred the following question of law to this court for its opinion :whether, in the facts and circumstances of the case, the board of revenue was justified in holding that the sale of 'sewai' is taxable at the rate of 2 per cent as a form of cereal vide entry no. 4 of part iv of schedule ii of the m.p. general sales tax act, 1958, instead of 8 per cent vide entry no. 1 of part vi of schedule ii of the m.p. general sales tax act, 1958 3. the material facts giving rise to these references, briefly, are as follows:the assessee is engaged in the manufacture of chatnis, condiments, 'sewai', etc. the assessment years in question are 1977-78 and 1978-79. while framing assessment under the act for the assessment years in question, the assessing authority held that the sale of 'sewai' was exigible to tax at the rate specified in the residual entry. on appeal, the order passed by the assessing authority was upheld. on further appeal before the board, the board remanded the matter for a fresh assessment in the light of the decision of the board in kothari kirana store v. commissioner of sales tax, m.p. [1982] vkn 321......

Judgment:

ORDER

G.G. Sohani, Ag. C.J.

1. The order in this case will also govern the disposal of Misc. Civil Case No. 289 of 1985 as common question of law is involved in both these cases.

2. By these references under Section 44(1) of the M.P. General Sales Tax Act, 1958 (hereinafter referred to as 'the Act'), the Board of Revenue has referred the following question of law to this Court for its opinion :

Whether, in the facts and circumstances of the case, the Board of Revenue was justified in holding that the sale of 'sewai' is taxable at the rate of 2 per cent as a form of cereal vide entry No. 4 of Part IV of Schedule II of the M.P. General Sales Tax Act, 1958, instead of 8 per cent vide entry No. 1 of Part VI of Schedule II of the M.P. General Sales Tax Act, 1958

3. The material facts giving rise to these references, briefly, are as follows:

The assessee is engaged in the manufacture of chatnis, condiments, 'sewai', etc. The assessment years in question are 1977-78 and 1978-79. While framing assessment under the Act for the assessment years in question, the assessing authority held that the sale of 'sewai' was exigible to tax at the rate specified in the residual entry. On appeal, the order passed by the assessing authority was upheld. On further appeal before the Board, the Board remanded the matter for a fresh assessment in the light of the decision of the Board in Kothari Kirana Store v. Commissioner of Sales Tax, M.P. [1982] VKN 321. Aggrieved by the order passed by the Board in this behalf, the department sought reference and it is at the instance of the department that the aforesaid question of law has been referred to this Court for its opinion.

4. From a perusal of the order passed by the Board, it is clear that the Board has not applied its mind to the question as to what was the relevant entry in the Schedule, which was in force during the assessment years in question. In [1982] VKN 321 (Kothari Kirana Store v. Commissioner of Sales Tax, M.P.), the relevant entry is set out as follows :

All kinds of grains, cereals, pulses and rice (excluding those exempted under entry 3 of the Schedule) in all their forms : flour including 'atta', 'maida', 'suji', 'besan', except when sold in sealed containers.

Learned counsel for the parties conceded that there had been amendments in the relevant entry from time to time. Therefore, without ascertaining the exact wording of the relevant entry at the material time, the Board of Revenue was not justified in holding that the sale of 'sewai' was taxable at the rate referred to in [1982] VKN 321 (Kothari Kirana Store v. Commissioner of Sales Tax, M.P.) at 2 per cent as a form of cereal vide entry 4 of Part IV of Schedule II of the Act.

5. Our answer to the question referred by the Board is that the Board of Revenue, without ascertaining the wording of the relevant entry at the material time, was not justified in holding that the sale of 'sewai' was taxable at 2 per cent as a form of cereal, vide entry No. 4 of Part IV of Schedule II to the Act. In our opinion, the matter regarding rate of tax applicable in the case of sale of 'sewai' can only be decided after ascertaining the wording of the relevant entry in force at the material time.

6. References answered accordingly.

7. In the circumstances of the case, parties shall bear their own costs of these references.