AI Drafter 
TaxTMI 
TaxTMI 
1996 (6) TMI 319
X X X X Extracts X X X X
X X X X Extracts X X X X
....in order to enjoy the benefit of tax payment at concessional rates. Hence, on February 20, 1991 the applicant sent an application under certificate of posting to the Commercial Tax Officer (C.T.O.) for inclusion of these items in R.C. by way of amendment of the same. But the application was never dealt with at all till March 19, 1992 despite repeated visit of the applicant's representatives to the C.T.O.'s office. The applicant had to send a reminder on March 20, 1992. The C.T.O. (respondent No. 3) thereafter acted on such reminder without caring to consider the original application dated February 19, 1991. The respondent No. 3 then passed an order on May 12, 1992 rejecting the applicant's prayer on the ground that though the applicant claimed to have made purchase of such articles from M/s. R.P. Engineering Works against Bill No. 1/90-91 dated March 13, 1991, it was found to be a fictitious transaction because there was no existence of any business concern named R.P. Engineering. Against this order a revision application was preferred before the Assistant Commissioner of Commercial Taxes (respondent No. 2). It was found by the respondent No. 2 that a purchase from M/s. Dunlop Indi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by him. That the story of despatch of an application dated February 19, 1991 is wholly untrue is evident from the fact that the applicant in its petition dated June 3, 1991 for sales tax clearance certificate described itself only as a manufacturer, making no whisper about its resale business, whereas in another application for such certificate filed after the application dated March 20, 1992 it described itself as manufacturer and reseller. It is untrue that a written application for amendment of the R.C. was filed prior to March 27, 1992. The claim of the applicant relating to its first purchase dated March 13, 1991 of the items sought to be included in the R.C. is belied by the fact that the concerned seller on enquiry was found to be non-existent. The next purchase of such items, as was found to be genuine, was made on March 27, 1992. Hence, there cannot be any amendment order effective from February 20, 1991 and the order amending the R.C. effective from February 20, 1992 suffers from no illegality. 3.. The applicant has filed an affidavit-in-reply whereby all the contentions of the respondents have been disputed. The applicant has, however, furnished some grounds for not d....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... rule 7 and the appropriate Commercial Tax Officer is satisfied that such dealer- (a) has purchased such goods for the purposes specified in such clause, he may make such amendment with retrospective effect from the date of filing of such application for amendment or the date of purchase of such goods, whichever is later, or (b) intends to purchase such goods for the purposes specified in such clause, he may make such amendment with effect from the date of the passing of his order." 6.. It appears from the rule that for amendment or replacement of the R.C. the dealer is required to make a report. Such report may be in the form of memorandum or letter which has the effect of communicating the nature of change intended in the R.C. Here, in the case before us, the dealer claims to have sent a petition on February 20, 1991 desiring amendment. The appropriate C.T.O. is expected to act on an application for amendment only if it reaches him for his consideration. Therefore, mere evidence of preparation of such application and despatch of the same by ordinary post would fall much short of the requirement contemplated in the expression "making of an application to the Commercial Ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Evidence Act, 1872, whenever a court may presume a fact it may either record such fact as proved, till rebutted, or may call for proof of it. It is, thus, permissible but not an obligatory presumption. In other words, a court where it may presume a fact has a discretion to presume depending on the circumstances. We shall now examine the circumstances of the case before us in the light of the illustration (f) of section 114 of the Evidence Act, 1872 to see if the factfinding authorities below erred in proper application of the said provision of law in not holding a presumption that the letter was delivered in common course of business. Before we do so, we think it appropriate to state that certificate of posting (in short "C.P.") is only a piece of evidence of posting of letter but is no evidence as to the nature of contents of such letter nor is it conclusive proof of the fact of delivery to the addressee. Here, the alleged petition dated February 19, 1991 is in the form of a letter (a copy of this can be seen at page 17 of the application). It could be sent by post only in an envelope. Therefore, the C.P. is only a proof of posting of an envelope and not of the fact that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ite the certificate of posting the assertion relating to posting of the prayer for amendment of R.C., whose copy is given at page 17 of the application, remains under a shadow of doubt. 11.. The above factual aspects in paragraphs Nos. 8, 9 and 10 above have been traversed only for the purpose of examination if the circumstances are good enough for a presumption that the letter purported to have been posted on February 20, 1991 really reached the office of the C.T.O. in the common course. We are of the opinion that in the instant case there is no scope for such presumption. 12.. Before we part with this issue we propose to refer to some reported decisions which would make the position in that regard clear. In the case reported in AIR 1957 SC 648 (F.N. Roy v. Collector of Customs, Calcutta), the Supreme Court held that the date of receipt of appellate authority of the memorandum of appeal was the date of filing of appeal and not the date of posting. Thus, the date of receipt of memorandum is of real importance. In the instant case before us there is no evidence that petition dated February 19, 1991 for amendment of R.C. ever reached the appropriate C.T.O. nor is there, as disc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... amendment of R.C. If, therefore, the C.T.O. accepting this as the prayer for amendment acted on it he can hardly be faulted for the same. 15.. The Assistant Commissioner of Commercial Taxes in his revisional order has not missed to mention that no petition dated February 19, 1991 was traceable in office. So, it cannot be said that all the respondents maintained silence about the petition dated February 19, 1991 and have thereby impliedly admitted receipt of the same. 16.. During reply the learned counsel for the applicant has referred to several reported decisions, without however elaborating the grounds for which he considers them applicable to his case. The reported decisions are: (1) AIR 1968 Cal 615, Charan Singh v. State of Uttar Pradesh AIR 1967 SC 520, Bishwanath Rai v. Here italicised. Sachhidanand Singh AIR 1971 SC 1949, Ambalal Mansukhram Joshi v. Addl. Special Land Acquisition Officer AIR 1968 Guj 5, F.N. Roy v. Collector of Customs, Calcutta AIR 1957 SC 648, Harlal Vaishya v. State of M.P. [1983] 53 STC 271 (MP), Dalbir Singh v. State of Punjab AIR 1987 SC 1328, Santosh Kumar Gupta v. Smt. Chinmoyee Sen AIR 1966 Cal 615 and Jitendra Nath Das v. Bijoy....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Gupta v. Smt. Chinmoyee Sen) is in connection with the case for eviction of a premises tenant after service of notice both by registered post and by ordinary post under certificate of posting. The ultimate decision as to the service of notice rests on the fact that the notice was sent both under registered post and ordinary post. Moreover, the fact that both the landlord and tenant lived in the same building was also taken into consideration. So the ratio of this decision renders little assistance to the applicant. 18.. The decision in the case of Jitendra Nath Das v. Bijoy Lal Das AIR 1976 Cal 478, to the effect that a letter sent under certificate of posting would raise the presumption under section 114 of the Evidence Act cannot be applied to the instant case in view of the circumstances peculiar to this case (as discussed in paragraphs 7, 8, 9, 10 and 11 above). The presumption under illustration (f) of section 114 of the Evidence Act, is one of fact and is rebuttable when the receipt of the application dated February 19, 1991 has been denied and disputed, the presumption becomes too weak to be taken in favour of the applicant, particularly in the circumstances already disc....