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1. Counterfoils of the declaration forms issued to us (Form XXIV).

2. Register of declarations in Form No. XXIII.

3. Ledger, cash book, journal and bank pass book for the relevant purchases made by the said dealers.

Bengal Form No. 3246 for summons to witnesses in quadruplicate for each of the dealers duly filled in is annexed hereto for service on the respective parties. Costs for issue of the summons and attendance of witnesses may kindly be intimated to us and the same will immediately be deposited.

16. It was argued that if the taxing authorities had called for the production of the counterfoils of the declaration forms from the purchasing dealers concerned, these counterfoils being in the nature of counterparts and as such being primary evidence of the original declaration forms would have been sufficient to meet the requirement of the law and would have enabled the appellant to get the exemption. I fail to see how the counterfoils could be regarded as counterparts within the meaning of Section 62 of the Indian Evidence Act, which provides that "where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against parties executing it". It is pointed out in authoritative text books on evidence that when each of the instruments is duly signed by the party to be found by it and each delivers to the other, the documents are termed counterparts and each is evidence against the party executing it and those in privity with the executing party. Thus a pattah and a kabuliat are treated as counterparts to each other. The counterparts dealt with in Section 62 have no reference to documents like counterfoils of declaration forms which are preserved by registered dealers. Even a cursory glance at the counterfoils shows that there is considerable difference between the declaration forms as such and the counterfoils. The counterfoil is not an exact replica of the declaration form. It is not signed by the registered dealer nor does it contain all the particulars of the declaration forms. So production of the counterfoils would not have served the purpose of the declaration forms.

37. The registered dealers not having been encouraged in the circumstances to issue duplicates, the appellant company applied to the Commercial Tax Officers concerned under Section 21A of the Bengal Finance (Sales Tax) Act for appropriate orders on the purchasing dealers to produce their books and documents to prove the sales by the appellant company. A list was attached to the application detailing the documents required which included the counterfoils of the declaration forms issued to the appellant company. Costs for issue of summons for attendance of witnesses were offered to be deposited immediately. The contention was that proof aliunde of such sales would entitle the appellant company to the exemption from tax to which they would otherwise be liable. It does not appear that any order was made on the application. The appellant company then moved the Commissioner of Commercial Taxes on 27th August, 1957, and prayed that suitable directions might be given to the Commercial Tax Officers concerned to direct the purchasing dealers in their respective charges to issue duplicate declarations to the appellant company. It was claimed that the appellant company was entitled to a special order in the circumstances of the case and it offered to submit to any order to indemnify Government for any reasonable sum to safeguard revenue. The Commissioner by an order dated 30th August, 1957, observed that he found no sanction behind the issue of duplicates and declined to interfere on the ground amongst others that he had not then before him any order made by a subordinate officer which he could set aside.