http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: TRIPURA GOODS TRANSPORT ASSOCIATION AND ANR.

       Vs.

RESPONDENT: COMMISSIONER OF TAXES AND OTHERS

DATE OF JUDGMENT:       15/12/1997

BENCH: SUHAS C. SEN, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      I.A.3 is  an application  for recalling  of  the  order passed by this Court on 3rd March, 1997.      A writ  petition was  filed by  Tripura Goods Transport Association  challenging   the  competence   of  the   State Legislature to  pass any  law relating to "transportation of goods".  The   case  of   the  Association   was  that   the transporters were  not liable  to pay Sales Tax as they were neither "Dealers"  in terms of the Act nor had any authority to sell  on behalf of the dealers. Various other points were made in  the writ  petition. One  of the  points related  to submitting of various forms under the Sales Tax Rules by the transporters at  the  check-posts.  The  writ  petition  was dismissed  by   the  Gauhati  High  Court.  The  Association approached this  Court by  a  special  leave  petition.  The special leave  petition was  disposed of  by a consent order dated 1.10.1996 which was as under:      "If a  Transporter  furnishes  Form      XVIIIA of  Form XVIIIB  (prescribed      under Rule 47A and 47C respectively      of the  Tripura  Sales  Tax  Rules,      1976) entitled  an  information  of      import/export of  taxable goods  to      the   appropriate   officer,   such      transporter shall  not be  required      to furnish  Form XXIV. If, however,      the transporter  does  not  furnish      Form XVIIIA  or  XVIIIB  prescribed      under   Rule    47   A    and   47C      respectively of  Tripura Sales  Tax      Rules, it is obvious, he shall have      to furnish From XXIV.      The learned  counsel for  the State      of Tripura  further Clarifies  that      the declaration  in Form  XVIIIA or      XVIIIB  can   be   furnished   with      respect to all goods.      In view  of  the  aforesaid  agreed      order it is not necessary for us to      express   any    opinion   on   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

    questions of  law  raised  in  this      special leave petition.      The  special   leave  petition   is      disposed of accordingly."      Thereafter, another  application was  made on behalf of the transporters  on which  a further  order was  passed  on 3.3.1997 to the following effect: "Heard.      Mr. Kapil  Sibal,  learned  counsel      for  the   applicant  states   that      because  the  petitioners  are  not      dealers,   they   are   not   being      supplied with  forms 18A  and  18B.      He, therefore,  submits that  it is      not possible for the petitioners to      produce the  said  forms.  On  this      submission, Mr. M.L. Verma, learned      counsel for  the State  of  Tripura      responds that  while he cannot give      any response  with respect  to  the      question whether the applicants are      dealers or  not, he assures that if      and when  the  applicants  approach      the Commissioner of Taxes, he shall      ensure   that   these   forms   are      supplied to  the  petitioners.  The      said    statement    is    recorded      herewith.      For the  above reasons,  we also do      not express any opinion whether the      applicants are dealers or not.      The application is disposed of with      above clarification."      The State  of Tripura has now made this application for recalling of  the order  dated 3rd March, 1997 on the ground that the  order was  entirely against  the provisions of the Tripura Sales  Tax Rules  framed under the Tripura Sales Tax Act, 19966.  It has been stated that the order was passed on the basis  of an  erroneous and unauthorized concession made by the Senior Counsel for the State. The concession was made without obtaining  instructions from the commissioner of Tax who was  also present  in the  court  at  the  time  of  the proceedings.  It   has  been   contended  that  Form  XVIIIA prescribed under  Rule 47A  of the  Rules can  only  be  for "Dealers" and  not for  transporters. Form  XVIIIA cannot be issued to the transporters. The concession made on behalf of the State  Counsel was  against the statutory provisions and was unauthorized. It has been submitted that order passed on the basis of this erroneous concession should be recalled.      We are  of the view that there is considerable force in the submission  made on  behalf of  the State.  The material part of Rule 47A is as under:      47A(1). "  Where the procedure laid      down in  Rule 46  or Rules 62 cause      inconvenience  to  a  dealer,  such      dealer may transport consignment or      taxable goods  despatched from  any      place outside Tripura, on the basis      of  intimation  furnished  by  such      dealer in form XVIIIA in accordance      with the  provisions  contained  in      this  Rule,   form   such   railway      station,  steamer   station,   post      office, airport  or any other place      notified under  Section 37 or 38 of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    the Act as may be specified in this      behalf for  the  purposes  of  this      rule by the authorised officer."      Therefore, it is the dealer and not the transporter who has to give the necessary information in Form no. XVIIIA.      Moreover,  the  requirements  of  Form  XVIIIA  clearly indicate that  it has  to be filled up by a dealer. The form has to  be issued  t a "Dealer", the name and address of the dealer has to be stated in the form. The dealer in that form has to  make a  declaration to  the proper  officer  various particulars including  name and  address of  the seller from whom the  goods were  purchased, name  and  address  of  the consignee, place  of despatch,  destination, description  of consignment, quantity,  weight, value,  Consignor’s  Invoice Number and  date, Mode of transport, Railway Receipt or Bill of Lading  or  Air  Note.  After  filling  in  the  form,  a declaration has to be made, which is as under :      "I/We  hereby   declare  that  I/We      am/are a  registered  dealer  under      the Tripura  Sales Tax  Act,  1976,      holding  registration   Certificate      No...... and  the above  Statements      are true  to  the  best  of  my/our      knowledge and belief.      The language of Rule 47A and form XVIIIA leaves no room for doubt  that the  form can  only be  issued to  a dealer. There is  no dispute  that the  transporter is not a dealer. Form XVIIIA  is issued  to a  dealer whose name, address and registration  no.  have  to  be  mentioned  by  the  Issuing officer. Obviously,  such a  form  cannot  be  issued  to  a transporter.      The assurance  given by  the counsel  of the  State  in Court was  "whether the applicants approach the Commissioner of Taxes,  he shall  ensure that these forms are supplied to the petitioners."  This assurance  was clearly  against  the law. Form XVIIIA cannot be issued to the transporters.      Although the  order dated  3.3.1997 was  based  on  the assurance given  by the  senior Advocate  appearing for  the State the  order will  have  to  be  recalled.  An  advocate appearing on  behalf of  the State cannot undertake that the state will  do something contrary to the statute. Therefore, this application is allowed. We will recall the order passed on 3.3.1997  and restore  the I.A.2  of 1996 for hearing and disposal. These applications are disposed of as above. There will be no order as to costs.