State of Madras Vs. A.Habibur Rehman
Sons [1967] INSC 194 (30 August 1967)
30/08/1967 RAMASWAMI, V.
RAMASWAMI, V.
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1968 AIR 339 1968 SCR (1) 381
ACT:
Constitution of India, 1950, Art. 286(1)(a),
Explanation, before amendment by the Constitution (Sixth Amendment) Act, 1956;
,Madras General Sales Tax Act (9 of 1939) s.
2(h),Explanation (2); and Sales Tax Laws
Validation Act (7 of 1956), s. 2-Ban on taxation of inter-State Sales lifted--Outside
sales, if could be taxed.
HEADNOTE:
Under Explanation (2) to s. 2(h) of the
Madras General Sales Tax Act, 1939, a sale is deemed to have taken place in
that State, wherever the contract of sale might have been made, if the goods
were actually in the State at the time when the contract in respect thereof was
made. The Constitution, by Art. 286 as it was originally enacted, imposed four
bans upon the legislative power of the States to impose sales tax. Clause
(1)(a) prohibited every State from imposing or authorising the imposition of, a
tax on outside sales. Am outside sale was defined by defining an inside sale in
the Explanation to the clause, as a sale which shall be deemed to have taken
place in the State in which the goods have actually been delivered as a direct
result of such sale for the purpose of consumption in that State
notwithstanding the fact that under the general law relating to sale of goods
the property in the goods has by reason of such sale passed in another State.
Clause (1)(b) prohibited the imposition of tax on sales in the course of import
into or export out of, the territory of India. Clause (2) prohibited the
imposition of tax on the sale of goods where such sale took place in the course
of inter-State trade or commerce unless Parliament otherwise provided. Clause
(3) prohibited the State from imposing or authorising the imposition of a tax
on the sale of any goods declared by Parliament by law to be essential for the
life of the community, unless the legislation was reserved for the
consideration of the President and had received his assent. This Court, in its
judgment in the Bengal Immunity Co. Ltd. Case, [1955] 2 S.C.R. 603 delivered on
September 6, 1955, held that because of Art. 286(2), the State legislature
could not impose sales-tax on inter-State sales until Parliament provided
otherwise. By the Sales Tax Laws Validation Act, 1956, Parliament removed the
ban contained in Art. 286(2) retrospectively, during the period between April
1, 1951, and September 6, 1955, with the result that, transactions of sale,
even though they were inter-State sales, could, for that period be lawfully
charged to tax. [386C-E; 387D, F-H;
388A-D] The respondent was a beedi
manufacturer in the appellantState. Beedies, which were within the territory of
the appellant State at the time the contract of sale in respect of them was
made were sold to non-resident buyers. On the question whether the sales during
the period from April 1, 1955 to September 5, 1955 were taxable by virtue of
Explanation 2 to s. 2(h) of the Madras General Sales Tax Act, 1939, in view of
the lifting of the ban on the levy of tax on inter-State sales by the Sales Tax
Laws Validation Act, the High Court relying on additional affidavits filed
before it, held 381 382 that the sales were outside sales and that the State
had no jurisdiction to impose sales tax.
In appeal by the State;
Held: (1) The restrictions imposed by the
several clauses of Art. 286 as it stood were cumulative, and the legislative
power of the State to tax sale or purchase transactions could be exercised only
if it was not hit by any of those limitations. The Validation Act merely lifted
the ban under Art. 286(2) but the ban imposed by Art. 286(1)(a) was still
effective, and could not be removed by any legislation of Parliament. Thus.
even if the ban under Art. 286 (2) was removed by the Validation Act, no State
could tax an inter State sale or purchase which took place outside its
territorial limits. The sales falling within the Explanation to Art. 286(1)(a)
were fictionally to be regarded as inside the State in which the goods were
actually delivered for consumption and so within the taxing power of that State
and as being outside all other States and so, exempt from sales-tax by those
other States.
Therefore, in the present case, even though
the sales fell within Explanation (2) to s. 2(h) of the Madras General Sales
Tax Act, it was beyond the competence of the Madras State to tax them as the
assessee had delivered the goods for consumption outside the State and were
thus outside sales covered by the ban imposed by Art. 286(1)(a). [390E-H]
Observations at p. 1082 in State of Bombay v. United Motors, (India) Ltd.,
[1953] S.C.R. 1069, The Bengal Immunity Co.
Ltd. V. State of Bihar and Ors., [1955] 2
S.C.R. 603, Shree Bajrang Jute Mills v. State of Andhra Pradesh [1964] 6 S.C.R.
691 and Singareni Collieries Co. Ltd. v. State of Andhra Pradesh, [1966] 2
S.C.R. 190, followed.
Messrs. Ashok Leyland Co. Ltd. v. The State
of Madras [1962] 1 S.C.R. 607, explained.
(2) The appellant-State, not having raised
any objection before the High Court that the High Court, in exercising the
revisional powers under s. 38 of the Madras General Sales Tax Act could not
take the affidavits in evidence could not urge in this Court that the High
Court acted illegaly in taking them in evidence. [392E]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 495, 539 and 540, 684, 694, 717 and 857 of 1966.
Appeals by special leave from the judgment
and orders dated September 23, 1963, April 29, 1963, July 29, 1964, March 13,
1964, June 22, 1964 and June 24, 1964 of the Madras High Court in Tax Cases
Nos. 246 of 1962 (Revision No. 96) 202 and 203 of 1961, 67 of 1963 (Appeal No.
6), 43 of 1964 (Revision No. 17), 12 of 1963 (Appeal No. 2) and 112 of 1964
(Revision No. 64) respectively.
G. Ramanujam and A. V. Rangam, for the
appellants (in all the appeals).
T. A. Ramachandran, for respondent (in C.A.
No. 495 of 1966).
M. S. K. Sastri and M. S. Narasimhan, for
respondent (in C. As. Nos. 539 and 540 of 1966).
A. N. Sinha and D. N. Gupta, for respondent
(in C. A. No. 684 of 1966).
383 Kartar Singh Suri and E. C. Agrawala, for
the respondent (in C.A. No. 694 of 1966).
Avad Behari, for respondent (in C.A. No. 717
of 1966).
G. N. Dikshit for respondent (in C.A. No. 857
of 1966).
Civil Appeal No. 495 of 1966 The Judgment of
the Court was delivered by Ramaswami, J. This appeal is brought, by special
leave,from the judgment of the Madras High Court dated September 23, 1963, in
Tax Case No. 246 of 1962.
The respondent who was a Beedi manufacturer
in Gudiyattam, Madras State was assessed to sales tax on a taxable turnover of
Rs. 1,73,502/11/10 for the assessment year 1955-56 by the Deputy Commercial Tax
Officer. Against this order of assessment dated February 15, 1957 the
respondent appealed to the Appellate Assistant Commissioner of Commercial
Taxes, Salem disputing the inclusion of a sum of Rs. 1, 1 1,299 / and odd on
the ground that the said amount represented either second purchases or purchases
made outside the State of Madras. Pending the appeal the Madras General Sales
Tax Act, 1959 was passed and the earlier Act of 1939 was repealed and by force
of the provisions in the 1959 Act, the appeal was finally disposed of by the
Appellate Assistant Commissioner of Commercial Taxes, Salem. By his order dated
July 2, 1960, the Appellate Assistant Commissioner held that the excise duty
paid by the respondent could not form part of his purchase turnover but in
purported exercise of his powers under the new Act enhanced the assessment of
the turnover by including a gum of Rs. 1,15,406/14/9 as interState purchases
from April 1, 1955 to September 5, 1955.
The respondent took the matter in further
appeal to the Sales Tax Appellate Tribunal. The appellant also filed petitions
before the Tribunal for enhancement of the assessment by Rs. 3,66,213/12/on the
ground that the amount represented sales of manufactured beedies to nonresident
buyers during the period May 12, 1955 to September 5, 1955 and that the goods,
in question were within the territory of the State at the time the contract of
sale in respect thereof was made. It was contended on behalf of the appellant
that the sales were taxable by virtue of Explanation (2) to s. 2(h) of the
Madras General Sales Tax Act, 1939 in view of the lifting of the ban on the
levy of tax on inter-State sales by the Sales Tax Laws Validation Act, 1956
(Central Act VII of 1956), hereinafter called the 'Validation Act', and that it
was wrongly excluded from the taxable turnover by the taxing authorities. By
its order dated July 13, 1962 the Appellate Tribunal allowed the petition for
enhancement and rejected the contention of the respondent that the sales were
agency sales through Commission Agents. As regards the alleged second purchases
or outside purchases of raw tobacco, the Appellate Tribunal remanded the case
to the Appellate Assistant Commissioner.
Against the order of the Appellate Tribunal
the respondent filed a petition in the High Court, of 384 Madras under s. 38 of
the Madras General Sales Tax Act, 1959. By its order dated September 23, 1963
the High Court held: (1) that the inclusion of the inter-State purchases from
April 1, 1955 to September 5, 1955 of Rs. 1,15,406/14/9. was bad as the
Appellate Assistant Commissioner had no jurisdiction to include that turnover;
(2) that the turnover of Rs. 3,66,213/12/included
by the Appellate Tribunal could not be brought to tax as the beedies, which
were the subject of the relevant sales, were delivered outside the State for
purposes of consumption and as the sales therefore constituted Explanation
sales under Art. 286(1) of the Constitution as it stood prior to the Sixth
Amendment and consequently the Madras State had no jurisdiction to tax the said
sales. Being aggrieved by that part of the decision of the Madras High Court on
the question of taxability of the said transactions of interState sales
effected prior to September 6, 1955, the State of Madras has brought the
present appeal.
The question presented for consideration in
this appeal is whether the Madras State had jurisdiction to levy sales tax on
the alleged "Explanation sales" by the respondent during the period
between April 1, 1955 to September 5, 1955 by virtue of Explanation (2) to s.
2(h) of the Madras General Sales Tax Act, 1939.
Section 2(h) of the Madras General Sales Tax
Act, 1939 states:
"2. In this Act, unless there is
anything repugnant in the subject or context(h)'sale' with all its grammatical
variations and cognate expressions means every transfer of the property in
goods by one person to another in the course of trade or business for cash or
for deferred payment or other valuable consideration, and includes also a
transfer of property in goods involved in the execution of a works contract, and
in the supply or distribution of goods by a co-operative society, club, firm or
any association to its members for cash or for deferred payment or other
valuable consideration but does not include a mortgage, hypothecation, charge
or pledge;
Explanation (2)-The sale or purchase of any
goods shall be deemed, for the purposes of this Act, to have taken place in
this State, wherever the contract of sale or purchase might have been made(a)
if the goods were actually in this State at the time when the contract of sale
or purchase, in respect thereof was made, or (b) in case the contract was for
the sale or purchase of future goods by description, then, if the goods are
actually produced in this State at any time after the contract of sale or
purchase in respect thereof was made.
385 Section 3 which is the charging section
provides as follows:
"Subject to the provisions of this Act,(a)
every dealer shall pay for each year a tax on his total turnover for such year;
and (b) the tax shall be calculated at the rate of three pies for every rupee
in such turnover:
Provided that if and to the extent to which
such turnover relates to articles of food or drink or both sold in a hotel,
boarding house, restaurant, stall or any other place, the tax shall be
calculated at the rate of four and a half pies for every rupee, if the turnover
relating to those articles is not less than twenty-five thousand rupees.
Under the Government of India Act, 1935, it
was open to every Provincial Legislature to enact legislation authorising the
levy of tax on sale of goods in respect of transactions whether within or
outside the Province, provided the Province had a territorial nexus with one or
more elements constituting the sale. This resulted in levy of sales tax by many
Provinces in respect of the same transaction--each Province fixing upon one or
more elements constituting the sale wish which it had a territorial nexus.
The Constitution with a view to prevent
imposition of manifold taxes on the same transaction of sale, imposed by Art.
286 restrictions on the levy of sale and purchase taxes on certain classes of
transactions. Article 286, as it was originally enacted, read as follows:
(1) No law of a State shall impose, or
authorise the imposition of, a tax on the sale or purchase of goods where such
sale or purchase takes place-(.a) outside the State;
or (b) in the course of the import of the
goods into, or export of the goods out of, the territory of India.
Explanation.-For the purposes of sub-clause
(a), a sale or purchase shall be deemed to have taken place in the State in
which the goods have actually been delivered as a direct result of such sale or
purchase for the purpose of consumption in that State, notwithstanding the fact
that under the general law relating to sale of goods the property in the goods
has by reason of such sale or purchase passed in another State.
(2) Except in so far as Parliament may by law
otherwise provide, no law of a State shall impose, or authorise the imposition
of, a tax on the sale or purchase of any goods where such sale or purchase
takes place in the course of inter-State trade or commerce:
386 Provided that the President may by order
direct that any tax on the sale or purchase of goods which was being lawfully
levied by the' Government of any State immediately before the commencement of
this Constitution shall, notwithstanding that the imposition of such tax is
contrary to the provisions of this clause, continue to be levied until the
thirty-first day of March, 1951.
(3) No law made by the Legislature of a State
imposing, or authorising the imposition of, a tax on the sale or purchase of
any such goods as have been declared by Parliament by law to be essential for
the life of the community shall have effect unless it has been reserved for the
consideration of the President and has received his assent.".
Article 286 thus imposed four bans upon
legislative power of the States. Clause (1) prohibited every State from
imposing or authorising the imposition of, a tax on outside sales and on sales
in the course of import into or export outside the territory of India. By el.
(2) the State was prohibited from imposing tax on the sale of goods where such
sale took place in the course of inter-State trade or commerce. But the ban
could be removed by the legislation made by the Parliament. By el. (3) the
Legislature of a State was incompetent to impose or authorise imposition of a
tax on the sale or purchase of any goods declared by the Parliament by law to
be essential for the life of the community, unless the legislation was reserved
for the consideration of the President and had received his assent.
In The Bengal Immunity Co. Ltd., v. The State
of Bihar and Others(1), it was held by this Court that the operative provisions
of the several parts of Art. 286, namely el. (1)(a), el. (1)(b), el. (2) and
el. (3), are intended to deal with different topics and one cannot be projected
or read into another, and therefore the Explanation in el.
(1)(a) cannot legitimately be extended to el.
(2) either as an exception or as a proviso thereto or read as curtailing or
limiting the ambit of el. (2). It was further held that until the Parliament by
law made in exercise of the powers vested in it by el. (2) of Art. 286 provides
otherwise, no State may impose or authorise the imposition of any tax on sales
or purchases of goods when such sales or purchases take place in the course of
inter-State trade or commerce, and therefore the State Legislature could not
charge interState sales or purchases until the Parliament had otherwise
provided. The judgment of this Court in The Bengal Immunity Company's(1) case
was delivered on September 6, 1955. The President then issued the Sales Tax
Laws Validation Ordinance, 1956, on January 30, 1956, the provisions of which
were later embodied in the Sales Tax Laws Validation Act, 1956. Section 2 of
this Act provided:
(1) [1955] 2 S.C.R. 603, 387 "Validation
of State laws imposing, or authorising the imposition of, taxes on sale or
purchase of goods in the course of inter State trade or commerce. Notwithstanding
any judgment, decree or order of any Court, no law of a State imposing, or
authorising the imposition of, a tax on the sale or purchase of any goods where
such sale or purchase took place in the course of inter-State trade or commerce
during the period between the 1st day of April 1951, and the 6th day of
September, 1955, shall be deemed to be invalid or ever to have been invalid
merely by reason of the fact that such sale or purchase took place in the
course of inter-State trade or commerce; and all such taxes levied or collected
or purporting to have been levied or collected during the aforesaid period
shall be deemed always to have been Validly levied or collected in accordance
with law..............." By this Act therefore the Parliament removed the
ban contained in Art. 286(2) of the Constitution retrospectively but limited
only to the period between April 1, 1951 and September 6, 1955. All
transactions of sale, even though the were inter-State sales could for that
period be lawfully charged to tax.
On behalf of the appellant the argument was
put forward that the Validation Act having lifted the ban on taxation of inter State
sales, the transactions of the respondent for the period from April 1, 1955 to
September 5, 1955 were assessable to tax under the provisions of the Madras
General Sales Tax Act, 1939 operating on its own terms. Counsel for the
appellant particularly based his argument on the second Explanation to s.2(h)
of that Act and the decision of this Court in Messrs Ashok Leyland Ltd. v. The
State of Madras(1). In our opinion, the argument put forward on behalf of the
appellant is not warranted. The decision of this Court in Ashok Leyland's(1)
case has no bearing on the question presented for determination in this case.
The reason is that in that case the deliveries of motor vehicles were inside
the Madras State and the inter-State sales in question were not
"Explanation Sales" falling within Art.
286(1)(a). It is a well-settled proposition
that the operative provisions of the several parts of Art. 286.
namely el. 1(a), el. 1(b), el. (2) and el.
(3), are intended to deal with different topics and one cannot be projected or
read into another, and therefore the Explanation in el. (1)(a) cannot
legitimately be extended to el. (2) either as an exception or as a proviso
thereto or read as curtailing or limiting the ambit of el. (2). In other words,
the legislative authority of the States to impose taxes on sales and purchases
was restricted by four limitations-in respect of sales or purchases outside the
State, in respect of sales or purchases in the course of imports into or
exports out of India, in respect of sales or purchases which take place in the
course of (1) [1962] 1 S.C.R. 607.
388 inter-State trade or commerce and in
respect of sales and purchases of goods declared by Parliament to be essential
for the life of the community. These limitations overlap to some extent, but
the legislative power of the State to tax sale or purchase transactions may be
exercised, only if it is not hit by any of the limitations. The restrictions
imposed by Art. 286 are cumulative. It follows therefore that even if the ban
under Art. 286(2) is lifted by Parliament by the enactment of the Validation
Act, the Madras State cannot still tax inter-State sales or purchases which
take place outside its territorial limits because of, the ban under Art.
286(1)(a) of the Constitution. What is an "outside sale" is defined
by the Constitution by the explanation to Art. 286(1) which states what should
be deemed to be an 'inside sale'. As provided by the Explanation to Art.
286(1), a sale or purchase shall be deemed to have taken place in the State in
which the goods have actually been delivered as a direct result of the sale
notwithstanding the fact that under the general law relating to sale of goods
the property in the goods has, by reason of such sale or purchase, passed in
another State. The legal position was stated by this Court in The State of
Bombay v.
The United Motors (India) Ltd.(1) as follows:
"It provides by means of a legal fiction
that the State in which the goods sold or purchased are actually delivered for
consumption therein is the State in which the sale or purchase is to be
considered to have taken place, notwithstanding the property in such goods
passed in another State. Why an 'outside' sale or purchase is explained by
defining what is an inside sale, and why actual delivery and consumption in the
State are made the determining factors in locating a sale or purchase will presently
appear. The test of sufficient territorial nexus was thus replaced by a simpler
and more easily workable test: Are the goods actually delivered in the taxing
State, as a direct result of a sale or purchase, for the purpose of consumption
therein? Then, such sale or purchase shall be deemed to have taken place in
that State and outside all other States. The latter States are prohibited from
taxing the sale or purchase; the former alone is left free to do so. Multiple
taxation of the same transaction by different States is also thus
avoided." This observation was not in any way dissented from by the
judgment of this Court in the later case-The Bengal Immunity Company's(2) case.
The result therefore is that if the terms of the Explanation are satisfied such
sales are by a fiction deemed to be 'inside' the State of delivery-cum consumption
and therefore ' outside' all other States. In such cases therefore only the
State 'inside' which the sale is deemed to take place by virtue of the (1)
[1953] S.C.R, 1069, 1082.
(2) [1955] 2 S.C.R. 603.
389 Explanation is exempt from the ban
imposed by Art.
286(1)(a); all other States would be subject
to that ban in respect of such sales. This principle underlies the decision of
this Court in Shree Bajrang Jute Mills Ltd. v. State of Andhra Pradesh(1). In
that case, the appellant, carrying on business as a manufacturer of jute goods
with its factory at Guntur, used to send jute bags by railway to the cement
factories of the A.C.C. Outside the State of Andhra. For securing a regular
supply of jute bags, the A.C.C. entered into a contract with the appellant and
under the despatch instructions from that company, the appellant loaded the
goods in the railway wagons, obtained railway receipts in the name of the
A.C.C. as consignee and against payment of the price, delivered the receipts to
the Krishna Cement Works, Tadepalli, which was for the purpose of receiving the
railway receipt and making payment, the agent of the A.C.C. From the amounts
shown as gross turnover in the return for the assessment year 1954-55, the
appellant claimed reduction of certain amounts in respect of the goods supplied
by rail to the A.C.C. outside the State of Andhra Pradesh under its despatch
instructions. The Commercial Tax Officer and the Deputy Commissioner of
Commercial Taxes disallowed the claim and held that as the railway receipts
were delivered to the agent of the buyer within the State of Andhra, and price
was also realized from the agent of the buyer within the State, goods must be
deemed to have been delivered to the buyer in the State of Andhra Pradesh, and
the appellant was liable to pay tax on the sales. The question for
determination in this Court was whether the sales by the appellant to the
A.C.C. may be regarded as 'no Explanation sales', i.e., failing outside the
Explanation to Art. 286(1). It was held by this Court that if the goods were
delivered pursuant to the contracts of sale outside the State of Andhra for the
purpose of consumption in the State into which the goods were delivered, the
State of Andhra could have no right to tax those sales by virtue of the
restriction imposed by Art.
286(1)(a) read with the Explanation. To
attract the Explanation, the goods had to be actually delivered as a direct
result of the sale, for the purpose of consumption in the State in which they
were delivered. The expression 'actually delivered' in the context in which it
occurs, can 'Only mean physical delivery of the goods, or such action as puts
the goods in the possession of the purchaser and it does not contemplate mere
symbolical or notional delivery.
It was accordingly held that the State of
Andhra had no authority to levy tax in respect of these sale transactions in
which the goods were sent under railway receipts to places outside the State of
Andhra and actually delivered for the purpose of consumption in those States.
The same view was reiterated by this Court in Singareni Collieries Co. Ltd. v.
State of Andhra Pradesh(2). In that case, the appellant company carried on the
business of mining coal from its collieries and supplying it to consumers both
within and outside the State.
(1) [1964] 6 S.C.R. 691. (2) [1966] 2 S.C.R.
190.
390 In proceedings for assessment to Sales
tax, the company claimed that it was not liable to pay sales tax under the
Hyderabad General Sales Tax Act, 1950, on the price of coal supplied to
allottees outside the taxing State pursuant to the directions of the Coal
Commissioner issued under the Colliery Control Order, 1945. This claim was
rejected by the Sales Tax Officer on the ground that the coal in question was
sold F.O.R. colliery siding and was actually delivered to the consumers within
the State when it was loaded on their account in railway wagons at the colliery
siding. The appeals against that decision to the appellate authorities as well
as to the High Court were dismissed. It was decided by this Court that so far
as the period between April 1, 1954 and September 6, 1955 was concerned, sales
of coal for delivery to consumers outside the State could not be taxed under
the Hyderabad Act because they were covered by the explanation to Art.
286(1)(a) as it stood before amendment. It was held that the Explanation
defines the State in which the goods have actually been delivered for
consumption, as the State in which for the purpose of cl.(1)(a) of Art. 286 the
sale shall be deemed to have taken place, and that State alone in which the
sale is deemed to take place has the power to tax the sale, and for this
purpose it is immaterial that property in the goods has under the general law
relating to sale of goods passed in another State in which the allottee resided
or carried on business.
The legal position therefore is that the
Validation Act merely lifted the ban under Art. 286(2) of the Constitution on
the State's power to legislate but the ban imposed by Art. 286(1)(a) of the
Constitution was still effective and could not be removed by legislation of
Parliament. In other words, even if the ban under Art. 286(2) is removed by the
Validation Act, no State can tax an inter State sale or purchase which takes
place outside its territorial limits.
What is an "outside sale" is
defined by the Constitution as Explanation to Art. 286(1) which states what
should be deemed to be an "inside sale". It is well-settled that by
Art. 286(1) (as it stood before the Sixth Amendment) sales as a direct result
of which goods were delivered in a State for consumption in such State, i.e.,
the sales failing within the Explanation to Art. 286(1) were fictionally to be
regarded as inside that State for the purpose of cl. (1)(a) and so within the
taxing power of the State in which such delivery took place and being outside
all other States exempt from sales-tax by those other States. As we have
already said, the Validation Act has lifted the ban under Art. 286(2) alone but
did not remove the ban under Art.
286(1) which continued to apply without being
affected by the Validation Act. Therefore, even if a sale fell within the
Explanation under s. 2(h) of the Madras General Sales Tax Act, 1939 it was beyond
the competence of the Madras State to tax if the assessee had delivered the
goods outside the State for consumption therein. It follows therefore in the
present case that the goods sold and delivered outside 391 the State during the
period from April, 1955 to September, 1955 were not liable to tax under the
Madras General Sales Tax Act, 1939 and the taxing authorities had no
jurisdiction to include Rs. 3,66,213/12/in the turnover of the respondent.
We proceed to consider the next question
raised in this case, viz., that the High Court acted illegally in entertaining
and relying upon the affidavits filed by the respondent while exercising its
revisional powers under s. 38 of the Madras General Sales Tax Act, 1959 (Madras
Act I of 1959). It was contended for the appellant that the High Court could
not itself record a finding of fact after taking additional evidence and there
was no express power conferred by s. 38 upon the High Court for taking
additional evidence.
Section 38 of the Madras General Sales Tax
Act, 1959 states:
"38. (1) Within ninety days from the
date on which a copy of the order under sub-section (3) of section 36 is served
in the manner prescribed, any person who objects to such order or the Deputy
Commissioner may prefer a petition to the High Court on the ground that the
Appellate Tribunal has either decided erroneously or failed to decide any
question of law:
Provided that the High Court may admit a
petition preferred after the period of ninety days aforesaid if it is satisfied
that the petitioner had sufficient cause for not preferring the petition within
the said period.
..................................
(4)(a) If the High Court does not dismiss the
petition summarily, it shall, after giving both the parties to the petition a reasonable
opportunity of being heard, determine the question of law raised and either
reverse, affirm or amend the order against which the petition was preferred or
remit the matter to the Appellate Tribunal, with the opinion of the High Court
on the question of law raised or pass such order in relation to the matter as
the High Court thinks fit.
(b) Where the High Court remits the matter
under clause (a) with its opinion on the question of law raised, the Appellate
Tribunal shall amend the order passed by it in conformity with such opinion.
(5) Before passing an order under sub-section
(4), the High Court may, if it considers it necessary so to do, remit the
petition to the Appellate Tribunal, and direct it to return the petition with
its finding on any specific question or issue.
.......................................
392 (8) (a) The petitioner or the respondent
may apply for review of any order passed by the High Court under clause (a) of
sub-section (4) on the basis of the discovery of new and important facts which
after the exercise of due diligence were not within his knowledge or could not
be produced by him when the order was made.
(b) The application for review shall be
preferred within such time, and in such manner as may be prescribed and shall
where it is preferred by any party other than the Deputy Commissioner be
accompanied by a fee of one hundred rupees.
....................................
It was argued for the appellant that under S.
38 the High Court was empowered to interfere with the order of the Appellate
Tribunal only if it bad either decided a question of law erroneously or bad
failed to decide any question of law. It was said that in any case the High
Court should have remitted the matter to the Appellate Tribunal if it considered
it necessary for the proper disposal of the case to take in evidence any
additional facts under S. 38(5) of the Act before passing an order under sub-s.
(4) remitting the matter to the Appellate Tribunal on any specific question or
issue. In our opinion there is considerable force in the argument put forward
on behalf of the appellant. But we do not wish to, express any concluded
opinion on this point in the present case. It appears that the appellant did
not raise any objection before the High Court when the affidavits were taken
into evidence. Having preferred no objection before the High Court it is not
now open to the appellant to gay that the High Court acted illegally in taking
those affidavits in evidence. It was submitted for the respondent that the
transactions themselves took place in 1955, nearly 12 years back and ordinarily
accounts of dealings would not be retained beyond five years. Counsel for the
respondent referred in this connection to a rule framed under the Madras
General Sales Tax Act. In these circumstances it was hardly worthwhile for the
High Court to remand the case for a fresh investigation. We therefore reject
the argument of the appellant on this aspect of the case.
For the reasons assigned we hold that this
appeal has no merit and must be dismissed. In the circumstances of the case we
do not propose to make any order as to costs.
Civil Appeals Nov. 539 & 540 of 1966, 717
of 1966, 684 of 1966, 694 of 1966 and 857 of 1966.
The main question to be considered in these
appeals is whether, after the enactment of the Validation Act, Madras State had
the constitutional power to tax "Explanation sales" falling under
Art. 286(1)(a) of the Constitution i.e., where goods were delivered for
consumption outside the State and whether the ban under Art. 296(1)(a) was an
independent ban and whether it could be removed by Parliamentary legislation
under Art. 286(2). This question 393 has been the subject-matter of
consideration in Civil Appeal No. 495 of 1966, and for the reasons given in that
case, we hold that the Madras State had no authority to levy sales tax on such
transactions of sale and the High Court was right in holding that the
constitutional bar under Art.
286(1)(a) was not lifted by the Validation
Act.
In Civil appeals Nos. 539 and 540 of 1966
Counsel for the appellant took an additional point that the High Court ought
not to have called for an affidavit from the respondent "regarding the
mode of sale of wool to, the Bangalore merchants". It was also said that
the High Court had no power to take that affidavit into evidence and come to a
finding that the sales were "'Explanation sales" within the meaning
of Art. 286(1)(a) of the Constitution. It, however, appears that the appellant
did not object to the production of the affidavit in the High Court. It must be
taken that the objection was waived and it is not now open to the appellant to
argue that the High Court had no power to take the affidavit into evidence. We
accordingly reject the argument of the appellant on this point.
In Civil Appeal No. 717 of 1966 it was argued
for the appellant that the High Court erred in assuming that in the
transactions in question the goods were delivered for consumption outside the
Madras State. It was said that the case should have been remanded by the High
Court to the Appellate Tribunal for a fresh finding on the point. The High
Court has, however, taken the view that the transactions took place in 1955-56
and ordinarily accounts of dealings would not be retained by the assessee
beyond five years. The High Court has observed that apart from this the
transactions were very large in number, about 4000 and odd and most of them
were for a comparatively small value. Some of the invoices referred in the
assessment order show that they were for small amounts in regard to articles
like paint, aluminium, tar and other articles. In these circumstances the High
Court came to the conclusion that the goods were delivered to places outside
the Madras State for the purpose of consumption in the deliver States.
The High Court added that it was hardly
worthwhile in these circumstances to direct a remand of the case to the
Appellate Tribunal for a fresh enquiry. It is manifest that the finding of the
High Court on this point is a finding on a question of fact and as there is
proper material to support the finding of the High Court it is not possible to
accept the contention of. the appellant that the finding is in any way
defective in law. We accordingly reject the argument of the appellant on this
point.
For the reasons expressed we hold that these
appeals have no merit and they are accordingly dismissed. In the circumstances
of the case we do not propose to make any order as to costs except in C ' 'A.
71.7 of 1966, In that appeal, the respondent will be entitled to costs as
already ordered on 29th July 1965.
V.P.S. Appeals dismissed.
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