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1992 DIGILAW 99 (DEL)

COMMISSIONER OF SALES TAX, NEW DELHI v. HARI RAM OIL CO.

1992-02-12

B.N.KIRPAL, SANTOSH DUGGAL

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JUDGMENT B.N. KIRPAL, J. In respect of the assessment year 1973-74, the Sales Tax Appellate Tribunal has referred the following question to this Court : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in directing the acceptance of the declarations issued by M/s. Narender Kumar Krishan Kumar and M/s. Sunrise Lubricants." The facts as found by the Tribunal are that the dealer had made sales, inter alia, in favour of two parties, viz., M/s. Narender Kumar Krishan Kumar and M/s. Sunrise Lubricants. In the case of the former there were nine sales totalling Rs. 1,00,200 while the sale in favour of the latter concern was of Rs. 23,000. The dealer had obtained declarations from these purchasers and sought the benefit of exemption from sales tax in his return. The assessing authority, however, found that the registration certificate of M/s. Narender Kumar Krishan Kumar had been cancelled with effect from 1st April, 1973, while the registration certificate of M/s. Sunrise Lubricants had been cancelled with effect from 15th October, 1973. The assessing authority came to the conclusion that the dealer was not entitled to the benefit of the sales made to the said purchasers because their registration certificates had been cancelled and the sales made by the dealer could not be regarded as sales having been made to the registered dealers. It may here be stated that the sales made by the dealer in favour of M/s. Narender Kumar Krishnan Kumar were after 1st April, 1973, while the sale transaction in favour of M/s. Sunrise Lubricants was on 9th December, 1973. The deductions claimed by the dealer were not allowed. An appeal was filed to the Assistant Commissioner of Sales Tax who observed that as on the date the purchases were made the purchasers were no longer the registered dealers and, therefore, the declarations issued by them were invalid and the deductions claimed by the dealer could not be allowed. During the course of the second appeal it was contended that the publication of the cancellation of the registration certificates of the two purchasers was effected only on 30th July, 1974 and, therefore, the dealer was entitled to take advantage of the declarations which had been issued. During the course of the second appeal it was contended that the publication of the cancellation of the registration certificates of the two purchasers was effected only on 30th July, 1974 and, therefore, the dealer was entitled to take advantage of the declarations which had been issued. The Appellate Tribunal referred to the second proviso to rule 12(d) of the Delhi Sales Tax Rules, 1951, and also to two decisions reported as Arjan Radio House v. Assessing Authority [1973] 31 STC 49 (P&H) and Yemmiganur Spinning Mills Limited v. State of Andhra Pradesh [1976] 37 STC 314 (AP) and observed that when the department was negligent in not publishing the cancellation it could not invalidate the declarations obtained in good faith by the dealer. On an application for reference having been filed, the Tribunal has now referred the aforesaid question to this Court. Form the facts enumerated above it is clear that the factum of the cancellation of registration certificates of the two purchasers was notified only after the assessment year was over and the sales had been made. As on the date when sales were effected by the dealer, in the present case, the cancellation of registration certificates had not been notified. The dealer, therefore, could not possibly have any knowledge about the cancellation. The dealer acted in goods faith and obtained the declarations before making the sales. According to rule 12 of the Delhi Sales Tax Rules, 1951, when the registration certificate is cancelled the order of cancellation shall as soon as possible after the same has been made be published in the official gazette. It has been held by a Division Bench of the Andhra Pradesh High court in the case of Yemmiganur Spinning Mills [1976] 37 STC 314, that the notification of cancellation of registration would be effective and enforceable only w.e.f. the date of its publication in the gazette. Similarly a single Bench of the Punjab and Haryana High Court in Arjan Radio House's case [1973] 31 STC 49 came to the conclusion that if the selling dealer is not aware of the cancellation of the registration certificate because of the non-publication about the same in the official gazette then he cannot be deprived of the benefit of the declarations received by him. It appears to us that the intention of the Legislature in promulgating rule 12 clearly was that the factum of cancellation of registration must be made known to the whole world. It is only for this reason that the rule requires publication about the cancellation in the official gazette. Such publication is always regarded as information to the world at large. Once the factum about the cancellation of the registration is published thereafter no dealer can plead that it was ignorant about the cancellation having been effected. It is no doubt true that the purchasing dealers may have been aware that their registration certificates had been cancelled and they may have wrongly issued the declarations but as far as the selling dealer is concerned if he obtains a declaration certificate and it is not known to him that the registration certificate of the purchaser had been cancelled and that cancellation is not notified in the official gazette than the selling dealer is entitled to the benefit under the Act. He cannot be penalised for the inaction of the department in non-publication or late publication in the official gazette. The selling dealer, in the present case, has acted in good faith and as far as he is concerned he had obtained valid declaration certificates at the time of making the sales. The Tribunal was, therefore, right in coming to the conclusion that the benefit claimed by the dealer could not be denied to him. For the aforesaid reasons the question of law referred to this Court is answered in the affirmative and in favour of the dealer. There will be no order as to costs. Reference answered in the affirmative.