TaxTMI 
TaxTMI 
1971 (7) TMI 147
X X X X Extracts X X X X
X X X X Extracts X X X X
....r, was not levied on the said turnover. The inter-State sales were conducted in the same assessment years. The petitioner was entitled to the refund of the sales tax which he has paid as above, because of the inter-State sales in the same assessment years. The petitioner originally asked for a writ of mandamus directing the respondent to refund the tax paid. He, however, subsequently filed an application under rule 27-A for the refund of the tax. Since the petition was filed after a considerably long lapse of time, the petitioner filed a petition to condone the delay on the ground that it was not wilful but bona fide. The said petition was disposed of by the impugned order. The Commercial Tax Officer, Cuddapah, was not satisfied with the reason shown. Holding that the petition was time-barred, he dismissed it. The petitioner thereafter filed an application to amend the writ petition and asked for a writ of certiorari instead of mandamus. We allowed the petition to be amended as prayed for. The learned Advocate for the petitioner made a faint attempt to argue that the reason assigned for condoning the delay was sufficient. The petition to amend did not refer to any ground o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ust be refunded "in such manner and subject to such conditions as may be prescribed". It is in pursuance of this power to make rules prescribing the manner and conditions of refund of tax that rule 27-A is framed by the State Government. The term "prescribed" according to section 2(1) means prescribed by rules made under the Act. Rule 27-A, in so far as it is relevant, reads as below: "(3) Every application for refund under this rule shall be filed by the dealer claiming refund before the assessing authority having jurisdiction over his place of business within a period of three months from the end of the month in which he sold the goods: Provided that the assessing authority may condone for reasons to be recorded in writing, any delay in the filing of such application. * * * " The first contention of Sri Dasaratharama Reddy was that under section 39(2)(n) the State Government was competent to make rules for generally regulating the procedure to be followed in proceedings under the Act and since prescribing limitation is not regulating the procedure, the impugned rule was made without the State Government having any power to make such a rule. We are unable to acce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplication for refund should not be made more than three months from the date on which the movement of the goods from this State to any other State commenced. The learned judge said: "There is much force in the contention of the learned counsel for the petitioner that prescribing period of limitation for refund under rule 23(3)(i) is not valid and should be declared ultra vires, because the main Act does not prescribe any period of limitation. The words used are 'shall be refunded' and there is no period of limitation prescribed." What is evident from the abovesaid conclusion drawn by the learned judge is that he did not consider as to whether rule 23(3)(i) could have been made under the delegated power of legislation. In other words, is it a valid rule made in pursuance of the proviso to section 4 with particular reference to the words "in such manner and subject to such conditions as may be prescribed"? The Act, it is true, did not provide any period of limitation. But it cannot be doubted that the Act can leave the matter of making such rule to the Government. And the learned judge, in our opinion, with due respect to him, was not quite right when he said: "There is no per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s followed Solar Works v. Employees' State Insurance Corporation[1964] 2 M.L.J. 223. In Sales Tax Officer v. Abraham[1967] 20 S.T.C. 367 (S.C.)., the Supreme Court held: "The expression 'in the prescribed manner' occurring in section 8(4) of the Central Sales Tax Act, 1956, only confers power on the rule-making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of the goods sold, the parties to whom they are sold and to which authority the form is to be furnished. But it does not take in the time element. In other words, the section does not authorise the rule-making authority to prescribe a time-limit within which the declaration is to be filed by the registered dealer. " All these decisions go to show that when power to make rule is conferred relating to "procedure", "manner" or "mode" or words to that effect, the rule-making authority cannot prescribe limitation. Since the proviso to section 6 of the Act uses the word "manner", we may hold, following the abovesaid decisions, that the rule-making authority could not have prescribed limitation in exercising the powers to make rules as to in what "manner" the t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... condition precedent to the filing of the petition, that is to say, the petitioning creditor must, on the day when he presents his petition, have in view some act of insolvency which the debtor has committed within the preceding three months." Similarly in a Full decision of this court in Deputy Commissioner of Commercial Taxes v. Lakshmana Swamy[1956] 7 S.T.C. 560., it is said: "Construing rules 5(1)(k) and 18(2) and (3) in the light of the foregoing principles and having regard to the peremptory and absolute language in which these rules are couched, it is manifest that the deduction referred to in sub-rule (2) of rule 18 is conditional upon the assessee complying with the conditions prescribed under sub-rule (3) of that rule." The arguments before us travelled over a wide field in which many circumstances were considered which do not arise in this case and persuasive arguments were used on both sides as to the difficulties and doubts which might arise in other cases if the view canvassed by the respondent is accepted of the interpretation put forward of rule 27-A. It is said by the petitioner that if question of refund can arise only after payment of tax, then there....