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Commissioner of Sales Tax Vs. Express Printing Press - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSales Tax References Nos. 8, 9, 10 and 11 of 1979 in Reference Applications Nos. 58, 57, 56 and 25 o
Judge
Reported inAIR1983Bom190; [1983]52STC290(Bom); 1983TAXLR2871
Acts Bombay Sales Tax Act, 1959 - Sections 2(13)
AppellantCommissioner of Sales Tax
RespondentExpress Printing Press
Excerpt:
.....court ruled that the pamphlet giving predictions of lucky figures, numbers or dates and only stray news items could not be considered as a newspaper. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time..........printing press on a large scale. the sales of these pamphlets were considered by the assessee as sales of newspapers and therefore exempt from payment of any tax under the bombay sales tax act, 1959.3. the sales of these publications effected during the relevant periods were determined by the sales tax officer as follows :'period sales determined 1st april, 1964, to 31st december, 1964 rs. 9,972.00 1st january, 1970, to 31st december, 1970 rs. 70,792.00 1st january, 1971, to 31st december, 1971 rs. 77,754.00 1st january, 1972, to 31st december, 1972 rs. 90,954.00.' 4. while assessing the assessee the sales tax officer held that the said publications were not newspapers but were goods liable to tax under the bombay sales tax act, 1959. from this finding given by the sales tax officer.....
Judgment:

Sujata V. Manohar, J.

1. All these references pertain to two daily publications called 'Joker' and 'Jabara' printed by the respondents. Reference No. 8 of 1979 pertains to the assessment period 1st January, 1972, to 31st December, 1972, Reference No. 9 of 1979 pertains to the assessment period 1st January, 1971, to 31st December, 1971, Reference No. 10 of 1979 pertain to the assessment period 1st January, 1970, to 31st December, 1970, and Reference No. 11 of 1979 pertains to the assessment period 1st April, 1964, to 31st December, 1964.

2. It appears that in view of a certain intimation received by the Sales Tax Officer, Enforcement Branch, the place of business of the assessee was visited by the Sales Tax Officer, Enforcement Branch, on 11th August, 1972, and 14th August, 1972. On taking search of the business premises of the assessee, the Sales Tax Officer found that the assessee was printing two pamphlets, viz., 'Joker' and 'Jabara'. The assessee informed the Sales Tax Officer that these two pamphlets were being printed at their printing press on a large scale. The sales of these pamphlets were considered by the assessee as sales of newspapers and therefore exempt from payment of any tax under the Bombay Sales Tax Act, 1959.

3. The sales of these publications effected during the relevant periods were determined by the Sales Tax Officer as follows :

'Period Sales determined 1st April, 1964, to 31st December, 1964 Rs. 9,972.00 1st January, 1970, to 31st December, 1970 Rs. 70,792.00 1st January, 1971, to 31st December, 1971 Rs. 77,754.00 1st January, 1972, to 31st December, 1972 Rs. 90,954.00.'

4. While assessing the assessee the Sales Tax Officer held that the said publications were not newspapers but were goods liable to tax under the Bombay Sales Tax Act, 1959. From this finding given by the Sales Tax Officer the assessee went in appeal before the Assistant Commissioner of Sales Tax who confirmed the finding of the Sales Tax Officer. Being aggrieved buy those orders passed by the Assistant Commissioner of Sales Tax, the assessee preferred second appeals before the Maharashtra Sales Tax Tribunal. These were Second Appeals Nos. 125, 543, 544 and 545 of 1974, being in respect of orders for assessment periods 1st April, 1964, to 31st December, 1964, calendar year 1970, calendar year 1971 and calendar year 1972 respectively. By its judgment in Second Appeal No. 125 of 1974 the Tribunal held that these publications were newspapers and were therefore exempt from tax under the provisions of the Bombay Sales Tax Act, 1959. In view of this judgment, in the other three second appeals also the Tribunal held that these publications were newspapers and were, therefore, exempt from tax under the provisions of the Bombay Sales Tax Act, 1959.

5. On the application of the department in respect of these decisions, the following question, which is a common question of law arising in all these four references, has been referred to us for determination by the Tribunal :

'Whether, on the facts and in the circumstances of the case and on correct and proper interpretation of the provisions contained in sub-section (13) of section 2 of the Bombay Sales Tax Act, 1959, the Tribunal was correct in law in holding that the publications 'Joker' and 'Jabara' are newspapers and hence not goods ?'

We are required to determine whether the two publications 'Joker' and 'Jabara' are newspapers. Under entry 54, List II, of the Seventh Schedule to the Constitution, a State is entitled to levy taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I. Under entry 92, List I, of the Seventh Schedule to the Constitution, the Union Government alone is entitled to levy taxes on the sale or purchase of newspapers and on advertisements published therein. Under entry 92A of List I of the Seventh Schedule, the Union Government alone is entitled to levy taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce. Thus a State Government cannot levy tax on the sale or purchase of newspapers. Accordingly, under section 2, clause (13), of the Bombay Sales Tax Act, 1959, the definition of 'goods' excludes newspapers. Hence, if the publications 'Joker' and 'Jabara' are newspapers as contended by the assessee, they would be exempt from payment of tax under the Bombay Sales Tax Act, 1959.

6. Two sample issues of these publications have been annexed to these four references. One of them is an issue of 'Joker' dated 11th August, 1972, and the other is an issue of 'Jabara' dated 11th August, 1972. The same two samples are annexed to all the four references. Some other issues of these publications however, which were also shown by the parties to the adjudicating authorities, have been described in the statement of the case sent to us in these references. In the statement of the case submitted to us the contents of these publications are described as follows :

'The main items published in the said publications are certain numerological and astrological figures which are supposed to be lucky dates or lucky numbers and also lucky figures for 'Matka''.

In the order of the Tribunal it is further stated that these publications also contain some news published in some space in these publications. In each of the two samples annexed, there is only one item of news in one corner. The rest of the paper contains various mathematical numbers and astrological figures. The two samples which are annexed to these references also in terms mention that the various numbers which are mentioned therein are a prognosis of lucky numbers. At the foot of the front side of the publication 'Joker' there is a statement to the effect that all the figures given in this publication are merely forecasts based on astrology. There is a similar note at the foot of the front side of the publication 'Jabara'.

7. The question is whether a pamphlet which gives predictions of lucky figures or numbers or dates and contains some stray news item can be considered as a newspaper. The Oxford English Dictionary defines a newspaper as 'a printed, now usually daily or weekly, publication containing the news, commonly with the addition of advertisements and other matters of interest'. 'News' is defined as 'tidings; the report or account of recent events or occurrences, brought or coming to one as new information; new occurrences as a subject of report or talk'. Similarly Webster's Third New International Dictionary also defines a 'newspaper' as 'a paper that is printed and distributed daily, weekly, or at some other regular and usually short interval and that contains news, articles of opinion (as editorials) features, advertising, or other matter regarded as of current interest'. It defines 'news' as 'a report of recent event; new information; fresh tidings'.

In Butterworth's 'Words and Phrases Legally Defined' edited by John B. Saunders, Volume 3, at page 341, under the heading 'Newspaper' the following extract is given from a judgment from Australia reported in the case of Henderson v. Wilson (1944) VLR 144 :

'Upon examining it (a sporting paper giving information as to the probable results of horse races) I should say that it does not give news in the ordinary sense at all. It is not therefore a newspaper in the ordinary sense .... It is a mere collection of facts with regard to past performances obviously directly related (as are the comments) to the object of forecast. It is a mere aid to betting not by way of news but by collating information.'

Any paper, therefore, in order to be classified as a newspaper, should contain a report of recent events. A paper which mainly gives astrological and numerological predictions, cannot be considered as a newspaper. It was submitted by Mr. R. V. Patel, the learned counsel for the assessee that the two publications did contain some items of news. He also pointed out that some issues contained advertisements of films also. One must, however, look to the dominant purpose of a publication. In order to be called a newspaper, a paper's main purpose must be to convey news. It may incidentally publish forecasts or advertisements. But if the predominant aim of the publication is to conveys news, it will be a newspaper. But an insertion of a stray item of news or advertisement in a paper which predominantly gives merely predictions or forecasts of lucky numbers or figures cannot turn that publication into a newspaper, especially if such stray news item appears to have been inserted merely in order to camouflage the publication as a newspaper. This is precisely what has been done in the present case. In our view, the Tribunal was not correct in holding that because these predictions of lucky numbers or figures and dates are of interest to a certain class of members of the public, they should be considered as news and the papers should be considered as newspapers.

8. It was also submitted by Mr. R. V. Patel, the learned counsel for the assessee, that these publications have been registered under the Press and Registration of Books Act of 1867 and hence they are newspapers. Such a registration does not advance the case of the assessee. This registration is for the purposes of the provisions of the Press and Registration of Books Act, 1867. By virtue of such registration which has been done voluntarily by the assessee, the assessee cannot convert a publication which is not otherwise a newspaper into a newspaper.

9.On behalf of the assessee it was also urged that because both these publications are daily publications, they should be considered as newspapers. In our view, in the absence of any significant news content in these publications, the mere fact that the publications are brought out daily, has no relevance to the question before us.

In the premises, we answer the question referred to us in each of these references in the negative, that is to say, in favour of the department and against the assessee. The respondents will pay to the applicant the costs of these four references aggregating in all to Rs. 300.


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