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Chellaram Kishandas Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSales Tax Reference No. 20 of 1962
Judge
Reported in[1964]15STC545(Bom)
ActsBombay Sales Tax Act, 1953 - Sections 10, 14(7), 34(1) and 386(1); Constitution of India - Article 300; Income Tax Act, 1918; Income Tax Act, 1945 - Sections 17
AppellantChellaram Kishandas
RespondentThe State of Maharashtra
Appellant AdvocateB.C. Joshi, Adv.
Respondent AdvocateN.A. Palkhiwalla and ;F.N. Kaka, Advs., i/b., Little & Co.
Excerpt:
.....for his failure to get himself registered as a dealer inasmuch as the default was not intentional. parasaram parumal were the real purchasers, as well as the alternative contention raised on behalf of the applicant that the purchase was made by him merely in his capacity as the agent of m/s. paragraph 7 of the order of the tribunal in revision clearly shows that the contention raised was whether the government of india is a person within the meaning of the act. it is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition'.article 300 of the constitution provides that 'the government of india may sue or be sued by the name of the union of india and the government of a state may sue or be..........'person' normally includes government of india. however, as a rule of construction, government of india or government of a state are excluded from the scope and ambit of that expression in construing such provisions of a statute which impose liability to pay tax or which are penal in nature. he places reliance on certain passages from the judgment reported in madras electric supply corporation ltd. v. boarland (inspector of taxes) [1955] 27 i.t.r. 612. 6. we find it difficult to accept mr. joshi's contention. the expression 'person' is of a wider amplitude. early jowitt in his english dictionary says, 'in jurisprudence a 'person' is the object of rights and duties that is capable of having rights and being liable to duties .......... persons are of two kinds : natural and artificial.'.....
Judgment:

Tambe, J.

1. This is a reference under sub-section (1) of section 34 of the Bombay Sales Tax Act, 1953 (hereinafter referred to as the Act). We are here concerned with the period 1st April, 1954, to 31st March, 1955. During this period the applicant Chellaram Kishandas submitted certain tenders to the Regional Director of Food, Government of India, for purchase of sugar, which, at the material time, Government of India was supplying to the traders on a quota basis. The applicant's tenders were accepted, and a certain quota of sugar was allotted to the applicant, and was in due course purchased by the applicant during the aforesaid period. On or about the 15th June, 1957, the Sales Tax Officer, Enforcement Branch, issued a notice under sub-section (6) of section 14, calling upon the applicant to show cause why he should not be assessed to tax under the Act in respect of the aforesaid transactions of purchase of sugar. It appears that various contentions were raised by the applicant before the Sales Tax Officer, inter alia, contending that the applicant was an employee of a firm carrying on business in the name of M/s. Parasaram Parumal, and the tenders submitted by the applicant were submitted by him at the instance of his employer as its nominee or agent. In the alternative, it was contended that after the allotment was made in favour of the applicant, the applicant had assigned the rights to obtained by him under the quota to his employer M/s. Parasaram Parumal, and they were responsible for payment of the tax, and has, in fact, shown all the transactions in their books of account. These contentions were not accepted by the Sales Tax Officer, and the Sales Tax Officer held that the applicant was not liable to pay any sales tax, but he was liable to pay general sales tax amounting to Rs. 1,000-6-0 and purchase tax amounting to Rs. 1,037-14-0 and also a penalty of Rs. 500 was imposed on the applicant under sub-section (7) of section 14 of the Act for failure on his part to get himself registered as a dealer under the Sales Tax Act. Against this decision of the Sales Tax Officer, the applicant preferred an appeal to the Assistant Collector of Sales Tax, but the same was dismissed. Against that order, the applicant preferred a revision before the Deputy Commissioner of Sales Tax. Before the Deputy Commissioner, it was contended that the purchases were in the course of import, and, therefore the applicant was not liable to pay tax. The Deputy Commissioner held that the purchases were effected after the goods were cleared from the customs authorities by the Government of India, and therefore, they were not purchases in the course of import. It was further contended that the applicant had assigned his rights obtained under the allotment order to his employer M/s. Parasaram Parumal, and delivery of the sugar was taken by M/s. Parasaram Parumal. The Deputy Commissioner held that that was not the correct position. According to the Deputy Commissioner, the conditions of the tender at the material time showed that the scheme was to allow one person to submit only one tender for 200 bags of sugar, and one single person was not allowed a quota of more than 200 bags; had the applicant assigned the rights obtained by him under the allotment order to his employer, M/s. Parasaram Parumal, the quota would have been cancelled. He further found that the purchase of sugar bags was by the applicant and delivery thereof was taken by the applicant. He therefore held that the applicant was a dealer who has purchased the goods and was liable to pay purchase tax in respect of the said purchases made by him. It was next argued on behalf of the applicant that the money for purchasing the sugar quota came from M/s. Parasaram Parumal. The sugar obtained by the applicant was handed over by him to M/s. Parasaram Parumal without obtaining any consideration therefor from them. In these circumstances, there was no sale of the sugar by the applicant to M/s. Parasaram Parumal, and therefore, he was not liable to pay sales tax. The Deputy Commissioner found that ultimately the property in the goods, namely, the sugar, was acquired by M/s. Parasaram Parumal, and they had paid no valuable consideration therefor to the applicant, and therefore, the necessary ingredients of a sale by the applicant to M/s. Parasaram Parumal were wanting in the transaction. In this view of the matter, the Deputy Commissioner held that the applicant was not liable to pay any sales tax. Lastly, it was argued on behalf of the applicant that no penalty should have been imposed on him for his failure to get himself registered as a dealer inasmuch as the default was not intentional. This contention also was accepted by the Deputy Commissioner, and the penalty imposed under section 14(7) was set aside. The Deputy Commissioner, however, held that the applicant was liable to pay penalty under section 16(4) for late payment of the balance of the tax. He thus held the applicant to be liable to pay purchase tax and penalty for late payment of that tax. Against this order of the Deputy Commissioner, the applicant filed a revision before the Sales Tax Tribunal.

2. The first contention raised on behalf the of the applicant before the Tribunal was that the Government of India, from whom the sugar was purchased was not a person within the meaning of section 10 of the Act, and, therefore, the applicant was not liable to pay any purchase tax for the purchase of sugar made by him from the Government of India. The Tribunal rejected this contention. The second contention urged was that the applicant had taken delivery of sugar while the goods were in the course of import, inasmuch as delivery was obtained before the goods crossed the customs barrier. The Tribunal accepted the finding of the department that it was the Regional Director who had taken delivery of the sugar from the ships, and had later distributed outside the customs barrier the individual quotas to the individual allottees. In this view of the matter, the Tribunal rejected the second contention also. It was next argued that the applicant had not purchased the sugar in the course of business, and, therefore, no purchase tax was liable to be paid on these purchases. The Tribunal, having regard to the number of tenders submitted by the applicant during the period, the total price paid by him for the sugar, and the fact that the sugar was not obtained for consumption, held that the sugar was purchased in the course of the business, and in this view of the matter, this contention also was rejected. It was then contended on behalf of the applicant that the applicant was merely a dummy of M/s. Parasaram Parumal. The Tribunal held that it was the applicant who had submitted the tender; it was the applicant who had paid the purchase price, and it was the applicant who had taken delivery of the sugar, and this conduct on the part of the applicant estopped him from contending that he was not the purchaser but was merely a dummy of M/s. Parasaram Parumal. The Tribunal, however, did not rest its decision on this ground. It further considered as a question of fact the applicant's contention that he was merely a dummy and M/s. Parasaram Parumal were the real purchasers, as well as the alternative contention raised on behalf of the applicant that the purchase was made by him merely in his capacity as the agent of M/s. Parasaram Parumal. After considering the material on record, the Tribunal held that the applicant was the purchaser of sugar. Lastly, it was contended that the applicant was an employee of M/s. Parasaram Parumal. He was, therefore, precluded from doing any business which was of the same nature as that of his employer, and even if he has conducted any business of purchasing sugar, it must be treated as a business for his master M/s. Parasaram Parumal. This contention also was not accepted by the Tribunal. On the view taken by it, the Tribunal dismissed the revision application filed by the applicant. On an application made under section 34 of the Act, the Tribunal has drawn up the statement of the case and referred to us the following three questions of law :

'(1) Whether the Regional Director (Food) Bombay is a person within the meaning of section 10 of the Bombay Sales Tax Act, 1953 and whether purchase tax under section 10 can be levied on the purchase effected from the Regional Director (food) Bombay

(2) Whether in the facts and circumstances of the case it can be said that the purchase of sugar was in the course of business

(3) Whether the principle of estoppel is applicable in the facts and circumstances of the case so as to preclude the applicant from pleading the alleged true and substantial sate of affairs in the evidence on record before the Tribunal ?'

3. Turning to the first question, on the question as it is framed, there appears to be hardly any room for argument, and the answer will have to be in favour of the department. The question framed is whether the Regional Director (Food), Bombay, is a person within the meaning of the Act. There cannot be any doubt that the Regional Director (Food) is an individual and necessarily a person. Mr. Joshi, however, submitted that the contention raised before the Tribunal was not that the Regional Director (Food), Bombay, was not a person, but the contention raised was as to whether the Government of India is a person within the meaning of the Act. The seller was not the Regional Director (Food), Bombay, but the seller was the Government of India. The Regional Director (Food), Bombay, was only an officer of the Government of India dealing with the tenders submitted and making allotments of the sugar quota. The question, therefore, is whether the Government of India is a person within the meaning of the Act. Mr. Joshi is right in his contention. Paragraph 7 of the order of the Tribunal in revision clearly shows that the contention raised was whether the Government of India is a person within the meaning of the Act. The first question will, therefore, have to be modified by substituting 'Government of India' in place of 'the Regional Director (Food), Bombay' in the first question, and we proceed to answer the question so amended.

4. The argument of Mr. Joshi on the first question is founded on the language used in clause (a) of section 10 of the Act. The material part reads :-

'10. Subject to the provisions of section 7, there shall be levied a purchase tax on the turnover of purchases of goods specified in column (1) of Schedule B, at the rates, if any, specified against such goods in column (4) of the said Schedule, -

(a) where such goods are purchased from a person who is not a register dealer;'.

5. Mr. Joshi contends that before purchase tax could be levied on a dealer under clause (a) of section 10, it must be established that the seller was a person, and further that that seller was not a registered dealer. It is not in dispute that the Government of India, who was a seller of the sugar, was not a registered dealer. Mr. Joshi's contention is that the Government of India is not a person within the meaning of clause (a) of section 10, and therefore no tax is payable on the turnover of purchase of sugar made by the applicant from the Government of India. Mr. Joshi, in support of his contention, placed reliance on a decision of their Lordships of the Supreme Court in Director of Rationing and Distribution v. The Corporation of Calcutta and Others : 1960CriLJ1684 , and a passage at page 129 of the report in The Union of India and Another v. Commercial Tax Officer, West Bengal, and Others [1956] 7 S.T.C. 113, Mr. Palkhiwalla, on the other hand, contends that the expression 'person' normally includes Government of India. However, as a rule of construction, Government of India or Government of a State are excluded from the scope and ambit of that expression in construing such provisions of a statute which impose liability to pay tax or which are penal in nature. He places reliance on certain passages from the judgment reported in Madras Electric Supply Corporation Ltd. v. Boarland (Inspector of Taxes) [1955] 27 I.T.R. 612.

6. We find it difficult to accept Mr. Joshi's contention. The expression 'person' is of a wider amplitude. Early Jowitt in his English Dictionary says, 'In jurisprudence a 'person' is the object of rights and duties that is capable of having rights and being liable to duties .......... Persons are of two kinds : natural and artificial.' In Salmond on Jurisprudence, 11th Edition, at page 350, it is observed : 'So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even through he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition'. Article 300 of the Constitution provides that 'the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.' There cannot be any doubt that the reason of Article 300, clause (1), Government of India is a legal person, having a right to use and liable to be sued in relation to its affairs, and would, therefore, fall within the scope and ambit of the expression 'person'. The decisions on which reliance has been placed by Mr. Joshi are distinguishable and are hardly of any assistance to the applicant in this case.

7. The facts in Director of Rationing and Distribution v. The Corporation of Calcutta : 1960CriLJ1684 , were that the Director was using certain premises in Calcutta for storing rice, flour etc., without taking licence as required by section 386(1)(a) of the Calcutta Municipal Act, 1923, which provided that no person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Corporation in this behalf, namely, any of the purposes specified in Schedule XIX. Item 8 of this Schedule included storing of rice, flour, etc., as one of the purposes specified in the Schedule. The Corporation of Calcutta filed a criminal complaint against the Director for contravening the provisions of section 386(1)(a) of the Act. A preliminary objection was raised on behalf of the Director that he was not a person within the meaning of section 386(1)(a) of the Act, and therefore was not liable to be prosecuted. The trial Magistrate accepted this contention and acquitted the Director. Against the acquittal, a revision was filed by the Corporation in the High Court, and the High Court held that the Government was bound by the statute unless the Legislature excluded it expressly or by necessary intendment. In this view of the matter, it allowed the revision and sent the case back to the trying Magistrate for disposal in accordance with law. Against this decision, an appeal was taken to the Supreme Court by the Director on obtaining special leave, and it has been held that it is the rule of interpretation of a statute that the Crown or State is not bound by the statute unless the statute so provides in express terms or by necessary implication. This was the rule of construction prior to the Constitution, and it is still a good law in force applicable in India after the Constitution. It would be noticed that nowhere in this decision, it has been held that the State or the Government of India or the Crown is not a person within the meaning of section 386(1)(a) of the Act. All that has been held on the application of the aforesaid rule of construction of statute is that Government is not bound by its statute. In other words, Government is not liable to be penalized by reason of the provisions of the statute unless the statute in express terms or by necessary intendment fastens the liability on the Government. It should also be noticed that the question with which their Lordships were dealing was the liability in respect of the penal provisions of the statute. The aforesaid rule laid down by their Lordships does not come into play in the present case. Here, there is no question of the Government of India being bound by the provisions of any statute. No tax liability is sought to be imposed on the Government of India by reason of section 10 of the Act. The aforesaid rule of construction has, in the circumstances, no application to the facts of the present case.

8. The passage at page 129 in Union of India v. Commercial Tax Officer, West Bengal [1956] 7 S.T.C. 113, on which Mr. Joshi has placed reliance is in the following terms :

'The department concerned cannot be equated with a natural person. Nor can it be raised to the level of a legal person. I am not aware of any principle of jurisprudence which would justify placing a department of Government on the pedestal of a legal person.'

9. We fail to see how these observations are of any assistance to the applicant. We are not here concerned with any department of the Government of India. On the other hand, we are concerned with the Government of India itself, and we have already pointed out that by reason of clause (1) of Article 300 of the Constitution, the Government of India is a legal person.

10. The facts in Madras Electric Supply Corporation Ltd. v. Boarland (Inspector of Taxes) [1955] 27 I.T.R. 612 were that by rule 11(2) of the Rules applicable to Cases I and II of Schedule D to the Income Tax Act, 1918 (as substituted by section 32(1) of the Finance Act, 1926), it was provided that 'If at any time after the said April 5 any person succeeds to any trade, profession or vocation which until that time was carried on by another person and the case is not one to which paragraph (1) of this rule applies, the tax payable for all years of assessment by the person succeeding as aforesaid shall be computed as if he had set up or commenced the trade, profession or vocation at that time, and the tax payable for all years of assessment by the person who until that time carried on the trade, profession or vocation shall be computed as if it had then been discontinued.' On 29th August, 1947, the undertaking, plant and machinery of a company in India were purchased by the Madras Government, acting as a branch of the Crown. An assessment to income-tax for the year of assessment 1947-48 was made on the company under section 17 of the Income Tax Act, 1945, in respect of a balancing charge alleged to arise on the sale of the plant and machinery. A question arose whether rule 11(2) was applicable to the case of a succession to a trade by the Crown. In other words, the question that arose for consideration was whether the word 'person' occurring in rule 11(2) included the Crown. The matter went to the House of Lords, and the learned Law Lords held that the Crown was included in the word 'person' in rule 11(2). At pages 620-621 of the report, Law Lord MacDermott observed :

'The appropriate rule, as I understand it, is that in an Act of Parliament general words shall not bind the Crown to its prejudice unless by express provision or necessary implication. That, however, is and has long been regarded as a rule of construction, and such being its nature its application to the charging provisions of paragraph 1 of Schedule D seems to me to make an end of the respondent's submission on this aspect. In that paragraph the word 'person' is a general word capable of including the Crown, but there is no express provision and nothing by way of necessary implication to make it include the Crown, and so, as a matter of construction, it must be read in accordance with the rule as excluding the Crown.

The question, then, is whether the word is to receive a similar construction in rule 11(2) or whether it is there used in a less restricted sense and so as to include the Crown. ........ It does not purport to tax those who were not taxable before and I am unable to see how its provisions can prejudice the Crown so as to justify its exclusion from the word 'person' as used therein.'

11. At page 627, Lord Tucker observed :

'This being the position, I can see no reason why the word 'person' in those parts of the Acts which do not impose a charge to tax should be construed otherwise than in its ordinary and natural meaning, which clearly includes the Crown.'

12. At page 630, Lord Keith of Avonholm observed :

'Whatever the word 'person' means in the charging provision, it does not necessarily follow that it means the same thing in rule 11(2). If in rule 11 'person' meant person other than the Crown, the whole basis of assessment in the case of a particular class of taxpayer, namely, purchasers from or sellers to the Crown, would be disrupted. A different basis of assessment would exist for persons who had bought or sold businesses according as they bought from or sold to the Crown, or persons other than the Crown.'

13. The ratio that can be drawn from these decisions, in our opinion, would be that the expression 'person' normally would include Union of India or a State, but as a rule of construction of a statute or interpretation of a statute, the State would be excluded from the charging provisions or penal provisions of the statute unless the intention of the Legislature to the contrary could be inferred from the express provisions or necessary intendment. As already stated, in section 10(1) the expression 'person' is used in respect of a seller. No tax is being levied on a seller by section 10. Section 10 is not thus a charging section for a transaction of sale. There is, therefore, no reason to exclude the Government of India from the expression 'person' occurring in sub-section (1) of section 10 of the Act. Our answer to the first question as modified is in the affirmative.

14. Turning to the second question, Mr. Joshi contends that the applicant was employed by M/s. Parasaram Parumal, and in his capacity as the servant, he had purchased the goods. These purchases were therefore of M/s. Parasaram Parumal, and he is not liable to pay tax. In our opinion, this argument cannot be sustained in view of the facts found. The fact found is not that M/s. Parasaram Parumal was the purchaser, but, on the other hand, the fact found is that the applicant is the purchaser, and after purchasing the goods, the applicant has handed over the goods to M/s. Parasaram Parumal. The fact found further is that the applicant had frequently submitted tenders for grant of quota of sugar. Quotas had been granted to him from time to time. The applicant paid the price of the sugar obtained by him on different quotas, and then handed over the sugar to M/s. Parasaram Parumal without obtaining any consideration from him. The Tribunal has further found that the sugar was not purchased for private consumption. In short, the findings are that as a regular course, the applicant had been from time to time purchasing sugar from the Government and supplied the sugar obtained by him to M/s. Parasaram Parumal. These being the facts found, there cannot be any doubt that the applicant's course of business was to submit tenders for purchase of sugar, purchase the sugar and then hand it over to somebody else. There cannot be any doubt that this is a course of business, and the purchases made by the applicant have been in the course of the business. Our answer to the second question also is in the affirmative.

15. As regards the third question, Mr. Joshi frankly conceded that answering the question would merely be academic, inasmuch as the Tribunal has already dealt with the questions of fact raised by the applicant and has recorded a finding against the applicant. Mr. Joshi, therefore, did not press this question. It is therefore not necessary to answer this question.

16. In the result, we answer questions Nos. (1) and (2) in the affirmative, and record no answer to the third question. The applicant shall pay the costs of the respondent.

17. Reference answered accordingly.


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