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PETITIONER: STATE OF UTTAR PRADESH & ANR.

       Vs.

RESPONDENT: M/S. UNIVERSAL EXPORTERS & ANR.

DATE OF JUDGMENT:       10/09/1997

BENCH: S.P. BHARUCHA, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Section 3AA and Section 3AAA of the Uttar Pradesh Sales Tax Act, 1948, at the relevant time read thus:      "3-AA. Rate  and point  of  tax  in      respect of  certain goods-  Subject      to the  provisions of  Section 3-D,      the turnover  in respect  of  goods      declared under  Section 14  of  the      Central Sales Tax Act, 1958 (Act 74      of   1956)   to   be   of   special      importance in  inter-  State  trade      commerce shall not be liable to tax      except at  the point  of sale  by a      dealer to the consumer and the rate      of tax shall be such, not exceeding      the maximum rate for the time being      specified in section 15 of the said      Act, as  the State  Government may,      notification   in    the   Gazette,      declares."      "3AAA:    Presumption     regarding      certain sales.    Where  goods  are      liable to  tax under  this Act only      at  the   point  of  sales  to  the      consumer, every sale by dealer.      (a) to a registered dealer who does      not purchase  them for  the re-sale      within the  state or  in the course      of inter-state  trade or  commerce,      in the  same form  and condition in      which he has purchased them or,      (b) to  any  person  other  than  a      registered dealer,  shall be deemed      to be  a sales  proves otherwise to      the satisfaction  of the  assessing      authority       such    declaration      obtained   from    the   purchasing      dealer, in such form and manner and      within  such   period,  as  may  be      prescribed."

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    Rule 12A (5) of the U.P. Sales Tax Rules Read thus:      "If  the   Sales  Tax  Officers  is      satisfied that  the requisition  of      the  dealer   for  blank  forms  is      genuine  and   reasonable,  he  may      issue the same in such manner as he      deem fit.   If the fee paid is more      than the fee payable for the number      of forms  issued, the balance shall      credited  to  the  account  of  the      dealer to  be adjusted  against any      further issue of the forms.:      It appears  that the  assessee applied  for a  form  to enable it to rebut the presumption under Section 3-AAA.  The application in this behalf was not dealt with.  The assessee thereupon filed  a  writ  petition  in  the  High  Court  at Allahabad.   Pending the  disposal of the writ petition, the Sales Tax  Officer  rejected  the  application  as,  in  his opinion, the  transactions entered into by the assessee were by way  of export of leather.  The writ petition was amended and the refusal was challenged.      Two learned Judges of the High Court having differed on the writ petition, it was referred to a third learned Judge. The third learned Judge agreed that the writ petition should be allowed.   Hence,  this appeal  by special  leave at  the instance of the State.      The  assessee   not  having  appeared,  we  thought  it necessary to  appoint amicus  curiae, and  we are obliged to Mr. R.F. Nariman for having assisted the court as such.      Section 3-AAA  provides for a presumption in respect of certain sales.   It  states that  where goods are liable for tax under  the Act  only at the point of sale to a consumer, every sale  be a  dealer to a registered dealer who does nor purchase the  goods for  re-sale within  the State or in the form and condition in which he has purchased them, or to any person other  than a registered dealer shall be deemed to be a sale  to the  consumer.   The Section, however, goes on to provide that  the aforesaid presumption may be rebutted when it states  that the  dealer may  provide  otherwise  to  the satisfaction of  the assessing  authority.  For such purpose the  dealer   is  required   to  furnish  to  the  assessing authorities a declaration from the purchasing dealer in such form and  manner within  such period  as may  be prescribed. Rule 12-A(5)  empowers the  Sales Tax Officer to issue blank forms in  this behalf  (which are entitled Form III-A) if he is satisfied that the requisition in that behalf "is genuine and reasonable".      That the Sales Tax Officer may satisfy himself that the requisition for  the blank  Forms is  genuine and reasonable does not empower him to pre-judge the issue as to whether or not the  presumption under  section 3-AAA  can be  rebutted. That is something that the assessing authority must consider only after  the blanks  form has been issued and it has been duty filled in and submitted, along with such other proof as the dealer  adduces.   It is  only then  that the  assessing authority may  consider whether  such proof,  along with the filled in  form is sufficient to rebut the presumption drawn under the provision.      The  arrogation   of  the   authority  to   reject  the assessee’s application  for blanks  Forms by  the Sales  Tax Officer  on  the  ground  that  the  concerned  transactions entered into  by the  assessee were  by  way  of  export  of leather was  improper and must be guashed.  After the blanks forms are  issued to  the assessee  and duly  filled up  and submitted along  with such proof as the assessee may adduce,

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it shall,  of course,  be open to the assessing authority to satisfy itself  as to  whether or  not the presumption under Section 3-AAA stands rebutted      The appeal is dismissed. No order as to costs.