Addl. Commissioner Commercial Taxes Department vs Badrilal

J.R. Chopra, J.—These two Special Appeals (D.B. Civil Special Appeals No, 189 and 190 of 1995) are directed against the judgments dated 11.1.1995 and 10.1.1995 respectively of the learned Singh Judge of this Court, where by while allowing the writ petitions, the learned single Judge has quashed the Circular Annexure-1 dated 4.8.1994 and the notice Annexure-2 dated 9.8.1994 and has further held that refund under Rule 38-D of the Rajasthan Sales Tax Rules, 1995 (for short ''the Rules'') read with Section 23-BB of the Rajasthan Sales Tax Act, 1954 can be granted by the Assistant Commercial Taxes Officer for short ''the ACTO'' because the term ''Commercial Taxes Taxes Officer'' (hereinafter to be referred as ''the CTO'') is inclusive of the ACTO.

For deciding the controversy involved in this case, we need not go into the facts of these cases. What is contended before us by the learned Advocate General is that refund Under Rule 38-D of the Rules read with Section 23-BB of the Act can be granted only by the CTG of the concerned circle and not by the ACTO of the concerned circle. He has contended that refund under Rule 38-D of the Rules can be granted to two types of dealers: one who is a registered dealer and the other who is not a registered dealer. He has submitted that Rule 38-D of the Rules specially lays down that any person or dealer claiming refund u/s 23-BB of the Act in the case of his being not a registered dealer shall apply to the Commercial Taxes Officer of the area in whose jurisdiction he ordinarily resides and in the case of his being a registered dealer, shall apply to the C.T.O., in whose circle he is registered, for refund and such Commercial Taxes Officer after making such enquiry as he deems proper shall allow the refund by issuing a refund voucher in form ST 13. According to Mr. Aggarwal, if before a C.T.O., in whose circle the dealer has been registered, an application for refund is being made, that refund can of course be granted by the ACTO but it is a case of an unregistered dealer, whose place of business is unknown or may very and therefore such dealer can claim his refund for the excess amount paid by him by making an application in Form ST-13 before the CTO of the area where he ordinarily resides and, therefore, refund to an unregistered dealer cannot be granted by the ACTO.

In this respect, it was argued by the learned Advocate General that although the definition of word ''CTO ''includes the term ''ACTO'' but the term ''CTO'' referred to in Rule 38-D of the Rules as regards unregistered dealer should be interpreted with reference to the context in which it has been used in relation to ah unregistered dealer. He has, therefore, contended that refund to an unregistered dealer can only be granted by the CTO of the area where such dealer ordinarily resides and not by anybody else. In support of this contention, he has placed reliance on a decision of their Lordships of the Supreme Court in The Vanguard Fire and General Insurance Co. Ltd., Madras Vs. Fraser and Ross and Another, . This very decision has been referred to by the learned single Judge while interpreting the provisions of Rule 38-D of the Rules and the Circular Annexure-1 dated 4.8.1994 issued by the CTO. Mr. Aggarwal has laid emphasis on the following observations made by their lordships of the Supreme Court in the aforesaid authority:

It is well settled that all statutory definitions or abbreviations must be read subject to the qualifications variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a some what different meaning in different sections of the Act depending upon the subject or the context....

Therefore, in finding out the meaning of the word ''insurer'' in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not in flexible and there may be sections in the Act where the meaning may be have to be departed from on account of the subject or context in which it has been used and that will be given effect to the opening sentence in the definition section, namely unless there is anything repugnant in the subject or context. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances.

Here, it may be stated that in Rule 38-A and 38-C, which relate to the grant of refund, the word ''Assessing Authority'' has been used. The term ''Assessing Authority'' has been defined in Section 2(b) of the Act, which reads as under:

Section 2(b). "Assessing Authority" in relation to a dealer means the Commercial Taxes Officer or the Assistant Commercial Taxes Officer having jurisdiction, for the time being.

Rule 38-D also relates to the refund of Sales Tax to the registered or unregistered dealers and in Rule 38-D of the Rules, the term ''CTO'' has been used. According to Mr. Aggarwal, the learned Advocate General, so far as the registered dealers are concerned, refund can be granted by the ACTO of the concerned circle, where such dealer has been registered but as regards the unregistered dealers whose place of business is not know or varies and sales tax has been received at various places, the ''CTO'' of the area in whose jurisdiction such dealer ordinarily resides has been auhorised to grant refund of sales tax. He has, therefore, contended that it has been specifically mentioned in Rule 38-D of the Rules that refund to unregistered dealers can only be granted by the CTO of the area in whose jurisdiction such dealer ordinarily resides and, therefore, it should be interpreted as such. Accordion to him, while interpreting Rule 38-D of the Rules, the term ''CTO'' must be read as ''CTO'' alone and it should not allowed to include the term ''ACTO''.

The term ''CTO'' has been defined in 2(d) of the Rules and it reads as under:

Rule 2(d). ''Commercial Taxes Officer'' means a Commercial Taxes Officer appointed by the Govt. and includes an Assistant Commercial Taxes Officer;

Thus, it is clear that wherever the words ''Assessing Authority'' or the ''CTO'' has been used, they are inclusive of the term ''ACTO''. Thus, submission of Mr. Aggarwal cannot be accepted.

It has been next contended by Mr. B.P. Aggarwal, the learned Advocate General that as per Rule 3 of the Rules, the Jurisdiction of the assessing authority is determined by the Commissioner, Commercial Taxes Department and it reads as under:

Rule 3 Assessing Authorities and their jurisdiction:(1) The Commercial Taxes Officer for the area within his jurisdiction as fixed by the Commissioner shall be the assessing authority for that area'' and such area shall be called his ''Circle''.

(2) ...

(3) ...

(4) ...

Thus., it is clear that the territori or pecuniary jurisdiction of the Assessing Authorities is to be determined by the Commissioner, Commercial Taxes Department and the territorial jurisdiction so assigned to a CTO by the Commissioner is being called as ''Circle''.

Rule 4 of the Rules pertains to the distribution of business amongst various Commercial Taxes Officers in a Circle and it lays down that where there are more than one Commercial Taxes Officers in a Circle, their respective jurisdiction and the distribution of business amongst them shall be such as may be fixed by the Commissioner. Thus, if in a circle, there are more than one Commercial Taxes Officers, which include the Assistant Commercial Taxes Officers, their jurisdiction is to be determined by the Commissioner. In this case, it is not the case of the appellant-Department that the ACTO who has granted the relief of refund to the respondent-dealer was not the assessing authority of the unregistered dealer. It may be stated here that it was not disputed before the learned Single Judge that the ACTO who has granted the relief of refund to the respondent-dealer had no territorial jurisdiction to deal with the matter. However, without laying any foundation in the writ petition, the learned Advocate General has tried to raise this argument before us. As stated above it is nobody''s case that the ACTO who has granted the relief of refund to the respondent-dealer had no jurisdiction to grant such relief. The learned single Judge has himself taken the precaution that if the order of refund passed by the ACTO is erroneous or prejudicial to the interest of the State Revenue or is contrary to the provisions of law, the Addl. Commissioner, Commercial Taxes Department can certainly set aside that order exercising his revisional jurisdiction according to law, As stated above, in this case, it is nobody''s case that the ACTO who has granted the relief of refund to the respondent dealer had no jurisdiction to grant it. It has been contended on behalf of the appellant-Department that only CTO is entitled to to grant the relief of refund to unregistered dealer. We have already come to the conclusion that the terms ''Assessing Authority'' or the ''CTO'' are inclusive of the term ''ACTO''. In the Circular (Annexure-1) dated 4.8.1994, it had been made clear by the Commissioner, Commercial Taxes Department that refunds can only be granted by the CTOs of the concerned circles and not by the ACTOs. The learned single Judge has also come to the conclusion that the term CTO or the Assessing Authority is inclusive of the ACTO and, therefore, the Circular (Annexure-1) dated 4.8.1994 being violativc of the provisions of the Act and the Rules deserves to be quashed.

In view of the discussion made herein above, we are firmly of the view that these two appeals have no force and they are hereby dismissed summarily.