1. Respondent No. 1 at the material time was a registered dealer under the Bengal Finance (Sales Tax) Act, 1941. It had been carrying on a business in iron and steel. On 30th September 1971, the Commercial Tax Officer, Jorasanko Charge, passed an assessment order under Section 11(1) of the aforesaid Act in respect of the returns submitted by respondent No. 1 for the four quarters ending the last day of December, 1967. The Commercial Tax Officer, by the said order, in computing the net taxable turnover of respondent No. I, had disallowed deduction from its gross turnover for the aforesaid four quarters the purported sales amounting to Rs. 31,64,682 to certain registered dealers, although respondent No. 1 had produced the declaration forms allegedly granted by the said buyers. Respondent No. 1, being aggrieved by the said decision, had preferred an appeal under Section 20(1) of the Bengal Finance (Sales Tax) Act, 1941. The Assistant Commissioner, Commercial Taxes, North Circle, by his order dated 28th October, 1972, dismissed the said appeal and confirmed the assessment of the Commercial Tax Officer in respect of the four quarters ending 31st December, 1967.

2. The Commercial Tax Officer by another assessment order dated 29th January, 1973, in respect of the four quarters ending 31st December, 1968, again disallowed certain deductions of sales to other registered dealers on the ground of certain alleged defects in the declaration forms relating to the said sales.

3. Thereafter, the Commercial Tax Officer had issued a notice under Section 11 read with Section 14(1) of the Bengal Finance (Sales Tax) Act, 1941, upon respondent No. 1 in respect of the returns submitted by him for four quarters ending 31st December, 1969.

4. Respondent No. 1 filed a writ petition, being Civil Rule No. 394(W) of 1973, Jasodalal Ghosal Pvt. Ltd. v. Commercial Tax Officer [1975] 35 S.T.C. 383 inter alia, challenging the aforesaid two assessment orders of the Commercial Tax Officer, Jorasanko Charge, in respect of the four quarters ending 31st December, 1967, and the four quarters ending 31st December, 1968, the appellate order of the Assistant Commissioner in respect of the assessment for the four quarters ending 31st December, 1967, and also the notice under Section 11 read with Section 14 of the Act in respect of the four quarters ending 31st December, 1969. On 14th May, 1974, his Lordship the Honourable Mr. Justice Amiya Kumar Mookerjee made the said civil rule absolute in respect of the aforesaid assessments of sales tax for the four quarters ending 31st December, 1967, and those ending 31st December, 1968. The learned Judge, however, held that, as no order had been passed in respect of the four quarters ending 31st December, 1969, at that stage, no relief could be granted to the registered dealers concerned. The State of West Bengal and others, being aggrieved by the said judgment of his Lordship Mr. Justice Amiya Kumar Mookerjee, have preferred this appeal under Clause 15 of the Letters Patent.

5. Mr. J.C. Pal, the learned Advocate for the appellants, has submitted that the learned single Judge was not correct in holding that the Commercial Tax Officer had erroneously and illegally rejected a large number of declaration forms produced by the registered dealer in order to claim deduction under Section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act. Mr. Pal submitted that in order to claim deduction of sales to registered dealers under Section 5(2)(a)(ii) of the said Act read with Rule 27A of the Bengal Sales Tax Rules, 1941, the registered dealer must satisfy the Commercial Tax Officer that the declaration forms produced by him have been duly filled up and contained all the necessary and requisite particulars. In other words, the assessee must strictly prove the conditions for obtaining tax relief under the aforesaid provisions.

6. The expression "taxable turnover" under Section 5(2) of the Bengal Finance (Sales Tax) Act means in the case of a dealer who is liable to pay tax under Section 4 of the said Act that part of his gross turnover during any period which remains after deducting therefrom the transactions specified in different sub-clauses of Clause (a) and the aggregate of the amounts in Clause (b) of Sub-section (2) of Section 5. In the instant case, we are concerned with the question whether or not the revenue authorities had committed any jurisdictional error in refusing deduction in respect of the two periods of assessment concerning the alleged sales made by the respondent although the registered dealer concerned had produced declaration forms in support of the said transactions. Rule 27A(1), inter alia, prescribes that a dealer who wishes to deduct from his gross turnover the amount in respect of a sale on the ground that he is entitled to make such deduction under the provisions of Sub-clauses (ii), (iii) and (iv) of Clause

(a) of Section 5(2) shall on demand produce in respect of such sale the copy of the relevant cash memo or bill and a declaration in form XXIV duly filled in and signed by the purchasing dealer. Under the proviso to Rule 27A(1), a declaration in a form in contravention of the provisions of Clause (a) or Clause (b) of the said proviso shall not entitle the dealer who accepts such declaration to make any deduction under this sub-rule on the strength thereof. Form XXIV, which is the prescribed form of declaration, inter alia, requires the particulars of (a) purchase order No. and date, (b) bill/cash memo No., date and amount, (c) dealer's challan No. and date to be furnished. In the form of the declaration, the challan number is also required to be stated.

7. We may refer to some of the decisions of this Court which have considered whether the aforesaid provisions relating to declaration forms under Section 5(2)(a)(ii) read with Rule 27A are mandatory or directory. P.N. Mookerjee and Amaresh Roy, JJ., in Durga Sree Stores v. Board of Revenue, West Bengal A.I.R. 1963 Cal. 409 inter alia, held that the revenue authorities had committed errors apparent on the face of the record in rejecting the declaration forms in question merely on the ground that the four alternatives mentioned in the printed forms had not been struck out. The learned Judges further held that there was nothing to show that the certificates of the dealers to whom the goods in question were sold did not include those multiple purposes and further "the mere non-striking out of the alternatives would not, in any sense, be a fatal defect". Such error was a jurisdictional error and this Court was entitled to interfere under Article 227 of the Constitution. Thus, the Division Bench in Durga Sree Stores v. Board of Revenue, West Bengal A.I.R. 1963 Cal. 409, had proceeded on the basis that every omission or defect in a declaration form would not disentitle a registered dealer from claiming deduction under Section 5(2)(a)(ii). In other words, their Lordships were of the view that a substantial compliance with the provisions relating to declaration forms would be sufficient.

8. Banerjee and K.L. Roy, JJ., in Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal [1967] 20 S.T.C. 528 at 538, in disposing of a reference under Section 21(3) of the Bengal Finance (Sales Tax) Act, more elaborately discussed the said question. In the said case, deductions under Section 5(2)(a)(ii) of the Act claimed by a registered dealer had been disallowed on the ground that some of the purchasing dealers became later untraceable. Secondly, the said declaration forms were not duly filled up. The learned Judge at page 531 of the Reports has set out the questions of law raised under Section 21(3) of the Act. The learned Judges in Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal [1967] 20 S.T.C. 528 at 538, had, inter alia, considered the question whether or not the provisions relating to particulars in a declaration form were mandatory. Their Lordships at page 538 of the Reports pointed out that the duty was cast upon the purchasing dealer to fill up the prescribed form in the prescribed manner and therein to include the prescribed particulars. If the purchasing dealer fails or neglects to fill up the prescribed form in the prescribed manner or fails or neglects to include the prescribed particulars therein, the selling dealer may not compel him to correct the errors or omissions. According to their Lordships, the object behind the provisions contained in the proviso to Section 5(2)(a)(ii) is to identify the particular registered dealer to whom sales have been made. If sales to registered dealers are not required to be covered by the declaration forms, according to their Lordships, it might have been possible for dishonest selling dealers to claim enormous deductions even if no sales had in fact been made. Their Lordships in the case of Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal [1967] 20 S.T.C. 528 at 538, held that the learned Advocate for the revenue was not wholly right in his contention that the requirements of Section 5(2)(a)(ii), proviso, and of Rule 27A read with form XXIV should be treated as obligatory or mandatory and that non-compliance therewith would invalidate a declaration form. Their Lordships further held that since the selling registered dealer has to depend upon the ability and willingness of the purchasing dealer to fill up the form, even a substantial compliance of the legal provisions would be sufficient. Banerjee and K.L. Roy, JJ., in Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal [1967] 20 S.T.C. 528 at 538 observed that the implication of the judgment in Durga Sree Stores v. Board of Revenue, West Bengal A.I.R. 1963 Cal. 409 was that the provisions of Section 5(2)(a)(ii), proviso, read with Rule 27A and the prescribed form, should be treated as directory and which need be substantially complied with. Mr. Pal, the learned Advocate for the appellants, tried to submit before us that the case of Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal, was not correctly decided. Sitting in co-ordinate jurisdiction, we are not in a position to overrule the said decision and to come to a contrary conclusion that Section 5(2)(a)(ii), Rule 27A and the prescribed form are mandatory and any infraction of the same would mean automatic rejection of the defective declaration forms. We are bound by the Division Bench decision in Durga Sree Stores v. Board of Revenue, West Bengal1, that the requirements of these provisions should be treated as directory and, therefore, a substantial compliance of the same would be sufficient in law. Mr. Pal, the learned Advocate for the appellants, in this connection had relied upon the decision of the Supreme Court in State of Madras v. Radio and Electricals Ltd. A.I.R. 1967 S.C. 234 at 239, para 10 In our view, the said decision cannot assist the present appellants. In State of Madras v. Radio and Electricals Ltd.2 in certain certificate in form C of the Central Sales Tax (Registration and Turnover) Rules, 1957, all the alternatives of the printed form were retained and in others one or more but not all the alternatives were retained. The learned Advocate for the State of Madras had urged before the Supreme Court that a certificate in form C is defective, unless it specified only one purpose for which goods purchased are intended to be used. The Supreme Court repelled the said contention because it was not borne out by the Central Sales Tax Act, 1956, and the Central Sales Tax (Registration and Turnover) Rules, 1957. According to the Supreme Court, when the purchasing dealer furnishes a certificate in form C without striking any of the four alternatives, it is a representation that the goods purchased are intended to be used for all or any of the purposes, and the certificate complies with the requirements of the Act and the Rules. The sales tax authority is, of course, competent to scrutinise the certificate to find out whether a certificate is genuine. He may also, in appropriate cases, when he has reasonable grounds that the goods purchased are not covered by the registration certificate of the purchasing dealer, make an enquiry about the contents of the certificate of registration of the purchasing dealer. But it was not for the tax officer to hold an enquiry as to whether the goods specified in the certificate of registration of the purchaser can be used for any of the purposes mentioned by him in form C or that the goods purchased have in fact been used for the purpose declared in the certificate [vide paragraph 10, page 239 of the Reports; (pages 231-232 of 18 S.T.C.)]. It appears that the observations of the Division Bench in Durga Sree Stores v. Board of Revenue, West Bengal A.I.R. 1963 Cal. 409 regarding the effect of non-striking out of the alternatives in the declaration forms under Section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, are fully in accord with the view of the Supreme Court in State of Madras v. Radio and Electricals Ltd. A.I.R. 1967 S.C. 234 at 239, para 10 mentioned above.

9. Further, the Supreme Court in State of Madras v. Radio and Electricals Ltd. A.I.R. 1967 S.C. 234 at 239, para 10 had considered the provisions of the Central Sales Tax Act and of the Central Sales Tax (Registration and Turnover) Rules relating to granting of concessional rates for certain classes of sales and the said provisions are not exactly in pari materia with the provisions of the Bengal Finance (Sales Tax) Act and the Rules made thereunder relating to declaration forms, which were considered by the aforesaid two previous Division Benches of this Court and now being considered by us. Thirdly, the observations of the Supreme Court in State of Madras v. Radio and Electricals Ltd. A.I.R. 1967 S.C. 234 at 238-239, para 9 upon which Mr. Pal, the learned Advocate for the appellants, placed strong reliance were only general observations. The Supreme Court either expressly or impliedly did not lay down as an inflexible proposition of law that the requirements regarding the said particulars were mandatory and not directory.

10. Mr. Pal, the learned Advocate for the appellants, next submitted before us that the defects in the declaration forms considered by the Division Bench in Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal [1967] 20 S.T.C. 528 were minor and inconsequential, whereas, in the instant case, the defects appearing in the declaration forms produced by respondent No. 1 to claim deduction under Section 5(2)(a)(ii) of the Act in respect of the two assessment periods ending 31st December, 1967, and 31st December, 1968, were material and, therefore, the same invalidated the declaration forms.

11. We propose to consider the findings of the Commercial Tax Officer in respect of the defects in the declaration forms in the aforesaid two assessment periods. The Commercial Tax Officer in his assessment order for the four quarters ending 31st December, 1967, gave the following reasons. In the first place, he referred to certain sales to registered dealers whose registration certificates were subsequently cancelled. The Division Bench in Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal2, specifically laid down that the fact that the sales were made shortly before the surrender of the registration certificate by the purchasing dealer is a matter of little consequence. So long as a purchasing dealer remained a registered dealer, he is entitled to purchase without the payment of sales tax against declaration forms supplied by him. The cancellation of registration of such a purchasing dealer on a later date does not invalidate the declaration form given in respect of purchases effected prior to such cancellation. The Commercial Tax Officer in his impugned assessment order for the four quarters ending 31st December, 1968, had again rejected the declaration forms on the same ground that the dealers who had furnished the said forms had subsequently ceased to be registered dealers. On the authority of the decision in Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal A.I.R. 1967 S.C. 234 at 238-239, para 9, we are bound to hold that the Commercial Tax Officer had committed an error apparent on the face of the records in holding that the declaration forms granted by the registered dealer is unacceptable because the selling dealers were not traceable. The same was also a conjecture and surmise and not a relevant ground for refusing deduction under Section 5(2)(a)(ii).

12. The other grounds given by the Commercial Tax Officer were also erroneous on the face of the record. The Commercial Tax Officer did not record any categorical finding as to whether the sales to other registered dealers in respect of which respondent No. 1 had claimed deduction under Section 5(2)(a)(ii) were not genuine but faked and fictitious. Therefore, the observations of the Commercial Tax Officer that payments for some of the transactions were made partly in cash and partly by chequ were not material. Mode of payments for goods allegedly supplied by the respondent to other registered dealers would be relevant only for deciding whether the said transactions were real or not. The third ground given by the Commercial Tax Officer was that the declaration forms produced by the dealers were incomplete inasmuch as the alternatives had not been struck out. Again this point is now concluded by the decision of the Division Bench in Durga Sree Stores v. Board of Revenue, West Bengal, A.I.R. 1963 Cal. 409 which was followed in Shri Anil Kumar Dutta v. Additional Member, Board of Revenue, West Bengal [1967] 20 S.T.C. 528.

13. Mr. Pal, the learned Advocate for the revenue, relied upon the proviso to Rule 27A of the Bengal Sales Tax Rules and urged that a form in contravention of Clause (a) or (b) of the said proviso would not entitle a dealer to claim deduction under Section 5(2)(a)(ii). But the Commercial Tax Officer himself did not rely upon the said proviso to Rule 27A and he did not state in the impugned assessment orders whether the declaration forms rejected by him related to one transaction or more. Therefore, we cannot allow the appellants to raise a new objection about the declaration forms in question at this stage. The Commercial Tax Officer in his impugned orders had relied upon the decision in Hindusthan Stationery Works (Pvt.) Ltd. v. Member, Board of Revenue [1971] 27 S.T.C. 394 at 397-398. The learned Judges in the said case had distinguished the earlier Division Bench decision in Durga Sree Stores v. Board of Revenue, West Bengal1. In Hindusthan Stationary Works (Pvt.) Ltd.'s case [1971] 27 S.T.C. 394 at 397-398, the genuineness of the purchases were not proved before the authority concerned. It was established that the sales were in fact effected to registered dealers. In some cases, sales were effected after the registration of the purchasing dealers had been can-celled (vide pages 397-398 of the Reports). Their Lordships did not also pronounce that form XXIV declaration was mandatory. Thus, the decision in Hindusthan Stationery Works (Pvt.) Ltd. v. Member, Board of Revenue [1971] 27 S.T.C. 394 at 397-398, is in fact distinguishable from the present case, where the declaration forms were granted before the registration of the purchasing dealer was cancelled and there had been no categorical finding by the revenue authorities that relative sales were not real.

13. The learned Advocate for the appellants has also pointed out that the Commercial Tax Officer in the two assessment orders and also the Assistant Commissioner in his appellate decision in respect of the assessment period ending 31st December, 1967, had given another reason for disallowing deduction claimed by the respondent. According to these authorities, the registered dealers concerned had failed to produce any order from the purchasing dealer to prove that such purchases were actually made by them. In this connection, Mr. Pal also mentioned that such sale order and the challan numbers were among the prescribed particulars of form XXIV under Rule 27A of the Bengal Sales Tax Rules. On the other hand, Mr. Chakraborty with some force submitted that neither the Commercial Tax Officer in his two assessment orders nor the Assistant Commissioner in his appellate order in respect of the assessment period ending 31st December, 1968, had considered the cash memos, challans and other evidence produced by the registered dealer to support the alleged transactions. Sitting in this jurisdiction we cannot ourselves determine whether or not the transactions were genuine. At the same time, the revenue authorities have not clearly applied their minds to the entire materials before them. They have not categorically found whether or not the sales in respect of which the deductions were claimed by respondent No. 1 were genuine or not. The impugned assessment orders and the appellate order in question were quasi-judicial in nature. Therefore, when we find that the revenue authorities have not considered in accordance with law the question whether the registered dealer was entitled to claim deduction under Section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, this Court is bound to quash the impugned orders and to command the authorities to again act and proceed in accordance with law.

14. The respondents in the writ petition did not urge in the trial court that the petitioner of the civil rule had alternative remedies against the impugned orders. Both parties made their respective submissions on merits and the learned single Judge recorded his findings thereon. Therefore, at the appellate stage we cannot permit the said question to be raised for the first time. The Supreme Court in I. Hirday Narain v. Income Tax Officer, Bareilly† ., Bareilly [1970] 78 I.T.R. 26 at 31 (S.C.) had observed that an order under Section 35 of the Income-tax Act might be revisable by the Commissioner of Income-tax but the petitioner of the said case had moved a writ petition which was entertained by the Allahabad High Court. If the High Court had not entertained his petition, the petitioner could have moved the Commissioner in revision. The Supreme Court in I. Hirday Narain v. Income Tax Officer, Bareilly† ., Bareilly [1970] 78 I.T.R. 26 at 31 (S.C.), was unable to hold that because the revision application could have been moved for an order correcting the order of the Income-tax Officer, but was not moved, the High Court would be justified in dismissing as not maintainable the petition which was entertained and was heard on the merits.

15. In the above view, we hold that the learned single Judge rightly quashed the impugned assessment orders in respect of the periods ending 31st December, 1967, and 31st December, 1968, including the appellate order in respect of the four quarters ending 31st December, 1969. It is, however, necessary to clarify that the Commercial Tax Officer, Jorasanko Charge, would be at liberty to make fresh assessments in respect of these two periods if not otherwise barred. In making the said assessments, the Commercial Tax Officer would be required to determine the taxable turnover for the two periods in question and, inter alia, to consider the deductions claimed by the registered dealer in accordance with law.

16. Subject to these observations, we dismiss this appeal without any order as to costs.

17. Let the security furnished at the time of issue of the civil rule be returned to the respondent (petitioner in the rule) after three months from date.

Bankim Chandra Ray, J.

I agree.