The prohibition against collection of tax under section 21(2) of the Bombay Sales Tax Act, 1953, does not apply to licensed dealers who are not registered.

Judgment

SHAH, J.

( 1 ) UNDER the Bombay Sales Tax Act, 1953 which replaced re-enacted the Bombay Sales Tax Ordinance No. II of 1952, the adens held a licence under section 12 as dealers, but they did not or themselves under section 9 even though they were liable to pay at tax as well as special tax as dealers in commodities set out in lie II of the Act. By section 5, a dealer whose turnover exceeded life amount was required to pay in addition to the special tax, ell tax at the rates specified in section 6, Ss. (I ). By 9, a dealer who is liable to pay general tax could not carry on as a dealer unless he had applied for registration within the prescribed by the Act. Every dealer whose turnover in respect cal goods described in Schedule II to the Act exceeded then, specified as liable to pay special tax at rates set out in column (2)of Schedule 11. By section 12, a dealer liable to pay special could not carry on business as such dealer unless he had applied licence within the period prescribed. The material parts of section Ss. (2) and (4) provided :" (2) No person selling any goods shall collect from the pure any amount by way of tax unless he is a registered dealer licensed dealer and is liable to pay the tax under this Act in reps such sale:

( 2 ) BY section 36, carrying on business as a dealer without app for registration or obtaining a licence in contravention of S. 12 was made punishable.

( 3 ) THE respondents carried on business as dealers in special god and they were liable to pay general tax as well as special tax for period of assessment November i, 1952, to 31/03/1954 fox period of assessment in question, the respondents submitted sepia returns for special and general tax. The Sales Tax Officer on discoing that the appellants had not applied for a registration certified under section 9 of the Act, ordered that for contravention of sub-se (2) of section 21 the general tax collected by the respondent forfeited. The order passed by the Sales Tax Officer was confirmed the Assistant Collector of Sales Tax and the Additional Collect Sales Tax. But the Sales Tax tribunal, Bombay, set aside the passed by the taxing authority. The State of Bombay has with sp leave appealed to this court against the order of the Sales Tax tribunal.

( 4 ) THE only question which falls to be determined is as to the interpretation of section 21, Ss. (2 ). Under the Bombay I Tax Act, 1953. dealers in special goods were liable to pay two general tax and special tax. Without registration, a person could carry on business as a dealer if his turnover exceeded the aril specified in section. Similarly, without a licence, a person could carry on business as a dealer in special goods. The respondents disregister themselves as dealers under section 9 and they may inured -penalty for breach of that provision; but the prohibitagainst collection of special and general tax appears to be cast in a different Scheme. A person selling goods is enjoined by Ss. (2) of section 21 not to collect from the purchaser any amount by way of tax unless he is a registered dealer or a licensed dealer and is liable to pay the tax in respect of such sale. It is manifest that this prohibition does not operate if a person is a registered dealer or a licensed dealer. The respondents being licensed dealers though not registered dealers are not prohibited from collecting general tax.

( 5 ) COUNSEL for the State contended that the Legislature has imposed a prohibition against a person who is liable to pay general tax restraining him from carrying on business as a dealer without registration as a dealer, and it could not have been the object of the Legislature to authorise such a person, by obtaining a licence as a dealer in special goods, to collect from the purchasers general tax without obtaining a registration certificate. He contends that the expression, "no person shall collect any amount by way of tax unless he is a registered dealer or a licensed dealer" is used in section 21 (2)