P. Mytheenkannu
Vs. State of Kerala [1997] INSC 631 (30 July 1997)
S. P.
BHARUCHA, V. N. KHARE
ACT:
HEADNOTE:
KHARE
J.
The
appellant, who is a dealer in Ayurvedic herbs and oils, supplied ayurvedic
herds to the Government Ayurvedic College, Trivandrum during the assessment
years 1984-85, 1985-86 and 1986-87 and, consequently, filed returns in Form 8
of Kerala General Sales Tax Act (hereinafter referred to as `the Act'),
claiming exemption on entire turn-over for the aforesaid three assessment
years. The exemption so claimed was on the basis that ayurvedic herds are
taxable at the point of last purchase in the State by a dealer who is liable to
pay tax. The Ayurvedic College being the last purchaser, the appellant obtained valuation
certificate from the College for quantity of herds purchased by them and
furnished the same before the Sales Tax Officer. The Additional Sales Tax
Officer, Trivandrum and further two appellate courts
did not accept the claim of the appellant for exemption of tax in view of the
fact that the certificate produced by the appellant was not in Form-25.
The
Writ Partition filed at the instance of the appellant against the order of the
Sales Tax Authorities was also dismissed by the High Court of Kerala. The Sales
Tax Authorities as well as the High Court were of the view sub- rile (14) of
Rule 32 being mandatory, the appellant is not entitled to claim any exemption
from tax unless he furnishes a certificate of declaration in Form-25 from the
person to whom he sold the goods. This view taken by the High Court has been
challenged in this appeal. It was urged that the valuation certificate obtained
from the party to whom the goods had been sold was substantial compliance of
requirement of sub-rule (14) of Rule 32 of the Rules, having regard to the fact
that party, being a government body, could not fulfil all the requirements of
Form-25.
Having
heard the matter and perused the record, we find the crucial question that
arises in the present appeals is, as to whether the Government Ayurvedic College,
Trivandrum comes within the expression" State" occurring in Section
2(viii) of the Act which defines "dealer". Further, the second
question that arises for consideration is, as to whether the certificate issued
by the Govt. Ayurvedic College substantially satisfied the
requirements of sub-rule (14) of Rule 32 and Form-25. But, these questions have
neither been dealt with by the Sales Tax Authorities nor by High Court.
Initially, we thought to decide these questions here. But, in the absence of
material facts, it is not safe to decide these questions in this appeal. In
such circumstances, we set aside the order and judgment of the High Court of Kerala
dated 3.9.1989 in TRC Nos. 106,107 and 108 of 1989, send these cases back to
the High Court for deciding the questions referred to above. The appeals are
allowed. There shall be no order as to costs.
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