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S.S. Shiragannavar and Bros. and ors. Vs. the State of Karnataka and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation;Sales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 6311 of 1975
Judge
Reported inILR1976KAR462; 1976(1)KarLJ236; [1976]37STC407(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 5, 6, 6B and 18(3)
AppellantS.S. Shiragannavar and Bros. and ors.
RespondentThe State of Karnataka and anr.
Advocates:W.K. Joshi, Adv.
Excerpt:
.....- 4. i am of the view that the impugned provisions which were introduced into the act by the amending act are very well within the legislative power of the state legislature......tax from the purchasers cannot be considered as tax levied in exercise of the power vested in the state legislature by entry 54 of list ii of the seventh schedule of the constitution of india. it is argued on behalf of the petitioners that the additional tax is in the nature of income-tax and the state legislature was therefore incompetent to levy. this question is no longer res integra. in s. kodar v. state of kerala : [1975]1scr121 , where a provision similar to section 6b of the act was questioned, the supreme court observed as follows : 'as regards the contention that the state legislature has no power to pass the measure, we are of the view that the additional tax is really a tax on the sale of goods. the object of the act, as is clear from its provisions, is to increase the tax on.....
Judgment:
ORDER

E.S. Venkataramiah, J.

1. In this writ petition the petitioners who are carrying on business as commission agents within the market yards established by the Agricultural Produce Market Committees of Jamkhandi and Mahalingapura of Bijapur District have questioned the constitutional validity of section 6B of the Karnataka Sales Tax Act of 1957 (hereinafter referred to as the 'Act'), which was introduced by section 3 of the Karnataka Sales Tax (Second Amendment) Act, 1975 (hereinafter referred to as the 'amending Act'), and of section 18(3) of the Act, which was introduced by section 4 of the amending Act. Section 6B of the Act reads as follows :

'There shall be levied and collected from every dealer liable to pay tax under section 5 or under section 6 and whose total turnover is ten lakh rupees or more in a year, an additional tax at the rate of ten paise in the rupee on the sales tax or purchase tax or both payable by such dealer :

Provided that in respect of the sale or purchase of any of the declared goods mentioned in the Fourth Schedule, the tax together with the additional tax shall not exceed three per cent of the sale or purchase price thereof.'

Section 18(3) of the Act reads as follows :

'Notwithstanding anything contained in sub-section (1), no dealer who is liable to pay the additional tax under section 6B, shall collect any amount by way of such additional tax or purporting to be by way of such additional tax payable by him.'

2. The case of the petitioners is that the levy of additional tax under section 6B which cannot be collected by way of such additional tax from the purchasers cannot be considered as tax levied in exercise of the power vested in the State Legislature by entry 54 of List II of the Seventh Schedule of the Constitution of India. It is argued on behalf of the petitioners that the additional tax is in the nature of income-tax and the State Legislature was therefore incompetent to levy. This question is no longer res integra. In S. Kodar v. State of Kerala : [1975]1SCR121 , where a provision similar to section 6B of the Act was questioned, the Supreme Court observed as follows :

'As regards the contention that the State Legislature has no power to pass the measure, we are of the view that the additional tax is really a tax on the sale of goods. The object of the Act, as is clear from its provisions, is to increase the tax on the sale or purchase of goods imposed by the Tamil Nadu General Sales Tax Act, 1959, and the fact that the quantum of the additional tax is determined with reference to the sales tax imposed would not alter its character. It may be noted that the additional tax is to be imposed only if the turnover of a dealer exceeds Rs. 10 lakhs. It is in reality a tax on the aggregate of sales effected by a dealer during a year. The additional tax, therefore, is an enhancement in the rate of sales tax when the turnover of a dealer exceeds Rs. 10 lakhs a year and it is a tax on the aggregate of the sales effected by the dealer during the year. The decision in Ernakulam Radio Company v. State of Kerala [[1966] 18 S.T.C. 445 at 449], which was affirmed by a Division Bench of the Kerala High Court in Kilikar v. Sales Tax Officer [[1968] 21 S.T.C. 252] took that view. The same view was taken by the Andhra Pradesh High Court in A. S. Ramachandra Rao v. State of Andhra Pradesh [[1969] 24 S.T.C. 133]. This is the correct view. Entry 54 in List II authorises the State Legislature to impose a tax on the sale or purchase of goods. So, the contention of the appellants that the additional sale tax is not a tax on sales but on the income of the dealer is without any basis.'

The additional tax levied under section 6B has, in the light of the observations made by the Supreme Court, to be held as a tax levied under entry 54 of List II. Hence the attack against the impugned provision based on entry 54 fails.

3. The fact that a dealer cannot collect the additional tax from his constituent also would not alter the character of the additional tax. In the above decision, the Supreme Court also has approved the observations made by it earlier in Konduri Buchirajalingam v. State of Hyderabad : AIR1958SC756 in which it was held that a tax which was levied on the sales effected by a dealer could still retain the character of sales tax even though he had no power to recoup the amount of tax payable by him from any other party. Hence, the second contention also fails.

4. I am of the view that the impugned provisions which were introduced into the Act by the amending Act are very well within the legislative power of the State Legislature.

5. It is, however, argued by Sri W. K. Joshi, the learned counsel for the petitioners, that on a true interpretation of the definition of the expression 'dealer' occurring in the Act and the provisions of section 6B of the Act, the petitioners who are merely commission agents of several principals would not be liable to pay the additional tax because none of the principals on whose behalf they act is carrying on any business in which the total turnover exceeds Rs. 10 lakhs. This contention does not relate to the constitutional validity of the impugned provisions. Whether the construction sought to be placed by Sri Joshi on the provisions of the statute has to be accepted or not will have to be decided by the authorities functioning under the Act. I do not, therefore, express any opinion on this question.

6. With these observations, petition is dismissed.

7. Petition dismissed.


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