KEDARNATH ;JUTE MANUFACTURING CO. versus COMMERCIAL TAX OFFICER, CALCUTTA AND ORS.

Citation: [1965] 3 S.C.R. 626 · Decided: 02-04-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

KEDARNATH ;JUTE MANUFACTURING CO. 
A 
v. 
COMMERCIAL TAX OFFICER, CALCUTTA AND ORS. 
A pri/ 2, 1965 
[K. SUBBA RAO, J. c. SHAH AND s. M, SIKRI, JJ.J 
B 
Bengal Finance (Sales Tax) Act, 1941 (Bengal Act 6 of 1941}-S. 
5(2)(a) (ii) proviso. Effect of-Production of declaration forms required 
under proviso whether mandatory or directory-Exemption 
under 
substantive clause whether can be claimed on the basis of other 
et,idence. 
The appellant a public limited company sought exemption under 
C 
s. 5(2) (a) (ii) of the Bengal Finance (Sales Tax) Act, 1941 in respect 
of certain sales. However, it could not produce 
before the com-
mercial tax officer the declaration forms from the purchasing 
dealers required to be produced under the proviso to that 
sub-clause because the said• forms were lost. The appellant tried to 
set duplicate forms from the purchasing dealers but without success. 
His application under s. 21A to summon the dealers with the relevant 
documents was rejected by the Commercial Tax Officer and the D 
higher authorities also refused to issue 
directions for the issue. of 
duplicate declaration forms. The Commercial Tax Officer thereafter 
passed an assessment order without allowing the said exemption. 
Against that order the appellant filed a writ petition under Art. 226 
and thereafter a Letters Patent appeal but failed to get redress. It then 
appealed to this Court with certificate. 
It was contended on behalf of the appellant that the exemption 
E 
granted under the subst2ntive sub-clause (ii) could be claimed by 
the production of other relevant evidence if the declaration forms 
· could not be produced; the proviso to that sub-clause requiring the 
production of the said forms was only directory as was also proved 
by the use of the words "on demand" in s. 27 A. 
HELD: The exemption could be· claimed only by the production 
F 
of the declaration forms as laid down in the proviso. 
(i) The effect of an exceptlpg proviso is to except from the main 
clause something which but for the proviso would be within it. 
Croies on Statute Law quoted: 
If the intention of the Legislature wa• to give exemption if the 
terms of the subs1'ahtive part of sub-clause (ii) above are complied 
with, the proviso becomes redundant and 
otiose. I~ . the oroviso is 
treated as merely directory it will lead to the pos!tlon that i! the 
G 
declaration form is furnished well and good; but if not furnished 
other evidence can be produced. That is to re;vrite the clause an~ to 
omit the proviso. That will defeat the express mtenbon of the legisla-
ture. f622H-630A] 
There is an understandable reason for the stringency of the provi-
sions. The object of s. 5(2)(a)(ii) of the Act ~nd the mies made the;e-
B 
under is self-evident. While they are obv10usly mtended to give 
exemption to a dealer in respect of sales to registered dealrs. of 
.,1Jecified classes of goods, it seeks also to prevent fraud and collusion 
in an attempt to evade tax, [630G] 
-026 
KEDARNATH JUTE MFG. CO. V. C. T. 0, CALCUT1"- (8ub/Ja fU10, .J.) 627 
A 
State of Orissa v. M.A. Tulloch & Co. Ltd, (1964) 15 S.T.C. 641, 
distinguished. 
B 
a 
(ii) The words "on demand" in r. 27A only fix the time when the 
declaration forms are to be produced; they do not mean that their 
production is not obligatory. [630A-B] 
(iii) Section 21A only empowers the Co1nmissioner or any person 
appointed by him to take evidence on oath etc. It can be invoked only 
in a case where the authbrity concerned is empowered t() take evidence 
in respect of a particular matter, but that does not enable him to 
ignore a statutory condition to claim exemption. [630C-D] 
(iv} Sub-rules (3) and (4) of s. 27A do not enable the selling dealer 
to either directly apply or to compel the purchasing dealers to apply 
for duplicate forms; nor do they enjoin on the appropriate authority 
to give the selling dealer a duplicate form to replace the lost one. 
This may cause hardship but the remedy lies with the Legislature 
only. [630E, F] 
Crv1L APPELLATE JURISDICTION: Civil Appeal No. 94 of 1964. 
Appeal from the judgment and order dated August 17, 1961 
of the Calcutta High Court in Appeal from Original Order No. 81 
of 1959. 
A. V. Viswanatha Sastri and P.K. Ghosh, for the appellant. 
P. K. Chatterjee and P. K. Bose, for the respondents. 
The Judgment of the Court was delivered by 
E 
Subba Rao, J. This appeal on a certificate granted by the 
High Court of Calcutta raises the question of the interpr

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