MODI SUGAR MILLS LTD. versus COMMISSIONER OF SALES TAX, U.P., LUCKNOW

Citation: [1966] 2 S.C.R. 607 · Decided: 16-11-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Judgment (excerpt)

illl. 
~· 
• 
• 
A 
B 
c 
D 
E 
F 
G 
MODI SUGAR MILLS LTD. 
v . 
COMMISSIONER OF SALES TAX, U.P., LUCKNOW 
November 16, 1965 
[K. SUBBA RAO, J. C. SHAH AND S. M. StKRI, JJ.] 
607 
U.P. Sales Tax Act, (15 of 1948), s. 7 and U.P. Sales Tax Rules, 
rr. 39 and 40-Submission of returns on basis of previous year-Elec-
tion to submit turnover of assessn1ent year-Sanction of commissioner if 
necessary. 
For the assessment years 1948-49, 1949-50 and 1950-51, the appellant 
\Vas assessed on the basis of returns filed for the turnover of each re-
levant previous year. 
For the assessment year 1951-52, the appellant, 
purporting to make an election under r. 39(1) of the U.P. Sales Tax 
Rule.s, filed returns of his turnover of the assessment year instead of the 
previous year. The Judge (Revision) Sales Tax held that without 
the 
sanction of the Sales Tax Commissioner under r. 39(2), the appellant 
was not entitled to do so, and the High Court also, on a reference, held 
against the appellant. 
In appeal to this Court, 
HELD : The answer of the High Court should have been in favour 
of the appellant. [610 HJ 
Under r. 39(1), the dealer makes a choice that he will be assessed 
in respect of the turnover not of the previous year, which is the normal 
position under s. 7, but in respect of the turnover of the assessment year. 
Rule 39(2), requiring the sanction of the 
Sales Tax 
Commissioner 
covers only the case where such election has.been made under r. 39(1), 
that is, where the election has been made by a deale,r to be assessed in 
respect of the turnover of the assessment year, and the dealer wishes 
to exercise a fresh option. 
Even assuming that, when a dealer submits 
a return in respect of the p_revious year under r. 40 he is treated to have 
elected within tha11 rule. yet, there is no provision like r. 39 (2) which 
debars him from exercising the option under r. 39(1). In the absence 
of an express provision like r. 39(2), general principles cannot debar an 
asscssee from exercising a statutory right given to him. [611 A-E] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 535 of 
1964. 
Appeal by special leave from the judgment and order dated 
July 25, 1961 of the Allahabad High Court in Sales Tax Refer-
ence No. 460 of 1954. 
A. V. Viswanatha Sastri and K. K. Jain for appellant. 
C. B .. Agarwala and 0. P. Rana, for respondent. 
H 
The Judgment of the Court was delivered by 
Sikri, J. This appeal by special leave is directed against the 
judgment of the High Court of Judicature at Allahabad passed 
608 
SUPREME 
COURT 
REPORTS 
[1966] 2 S.C.R. 
in a reference made to it under s. 11 of the U.P. Sales Tax Act, 
A 
1948 (U.P. Act XV of 1948 )-hereinafter referred to as the 
Act. In this reference the following question was referred by the 
Judge (Revision), Sales Tax at the instance of the appellant, 
Modi Sugar Mills Ltd., hereinafter called the assessee : 
"Whether a dealer who has been assessed fo tax on 
the turnover of the previous year according to his elec-
tion can change his option and elect the assessment 
year by filing quarterly returns without the previous 
sanction of Sales Tax Commissioner ?" 
The High Court answered the question in the negative. 
The answer to this question depends upon the in:erpretation 
of s. 7(1) of the Act, and rr. 39, 40 and 41 of the U.P. Sales 
Tax Rules, and form IV prescribed under these rules. 
These 
provisions are as under : 
"S. 7-(1). Subject to the provisions of section 18, 
every dealer whose turnover in the previous year is 
Rs. 12,000 or more in a year shall submit such return 
or returns of his turnover of the prev:ous year within 
sixty days of the commencement of tire assessment year 
in such forn1 and verified in such manner as may be 
prescribed : 
Provided that the Provincial Government may pres-
cribe that any dealer or class of dealers may submit, in 
lieu of the return or returns specified in this section, a 
return or returns of his turnover of the assessment year 
at such intervals, in such form and verified in such man-
ner as may be prescribed, and thereupon all the provi-
sions of this Act shall apply as if such return or returns 
had been duly submitted under this fection. 
Provided further that the assessing authority may 
B 
c 
D 
E 
F 
in his discretion extend the date of the submission of 
G 
the return by any person or class of persons. 
Rule 39 : Election of Assessment year. 
(1) 
Any 
dealer may elect to submit returns of his turnover of 
the asses

Excerpt shown. Read the full judgment & AI analysis in Lexace.