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Y. Laxman Vs. Commercial Tax Officer, 1st Circle, Udipi and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 395 of 1973
Judge
Reported in[1975]35STC393(Kar)
ActsExcise Act; Karnataka Sales Tax Act - Sections 2(1)
AppellantY. Laxman
RespondentCommercial Tax Officer, 1st Circle, Udipi and anr.
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateH.N. Narayan, High Court Government Pleader
Excerpt:
- karnataka transparency in publicprocurements act, 1999.[k.a. no. 29/2000]. section 9: [anand byareddy, j]tender for establishing state-wide area network - constitution of tenders accepting authority multi-member committee (nsc) appointed for procurement entity discharging function to examine recommendations received from governments consultants received from governments consultants on implementation of state wide area network (kswan), to consider-recommendations of consultant on preparation of tender documents and detailed evaluation criterion in respect of same as well as to examine selection of bidder nsc also discharged function to recommend to government final bidder for network held, such committee shall be deemed to be tender accepting authority. appointment of technical..........entire district during the relevant period he was not liable to pay any sales tax as he had not sold toddy and also there was no evidence to show that anybody else had sold toddy on his behalf. but it is argued on behalf of the department by sri h. n. narayan, the learned high court government pleader, that because at several places in the district of south kanara toddy was being sold by the sub-lessees of the petitioner, the petitioner must be held liable to pay sales tax in respect of the entire turnover. it is also stated that in the instant case the sub-leases had not been approved by the excise authorities and hence the sales effected by the sub-lessees should be treated as sales effected by the petitioner himself. 4. under the act sales tax is payable only by a dealer or by some.....
Judgment:
ORDER

E.S. Venkataramiah, J.

1. The petitioner was a successful bidder at an excise auction held for the privilege of vending toddy in the district of South Kanara for the year 1971-72, i.e., from 1st July, 1971, to 30th June, 1972. It would appear that immediately after he was declared as a successful bidder he entered into an agreement with several other to vend toddy at different places within the district of South Kanara as it was permissible under the provisions of the Excise Act and the Rules made thereunder to get such sub-leases recognised. On the basis of the sub-leases granted by the petitioner the sub-lessees commenced to vend toddy at the places assigned to them on payment of the agreed amount to the petitioner. The petitioner brought to the notice of the excise authorities that he had sub-leased his privilege in favour of others and requested them to recognise the same. Before the excise authorities could make an order recognising the sub-leases the period of lease was over. Hence no order was passed on the application of the petitioner. So far as his liability under the Excise Act is concerned it is stated that the petitioner has discharged the same.

2. The turnover in respect of sale of toddy is subject to payment of sales tax under the Karnataka Sales Tax Act (hereinafter referred to as the Act). The petitioner did not register himself as a dealer under the Act notwithstanding the fact that he was asked to do so by the authorities under the Act, as he did not intend to sell toddy and that it was being sold by his sub-lessees as already mentioned. The Commercial Tax Officer was of the view that the petitioner was a dealer in toddy and he was liable to pay sales tax in respect of the turnover relating to the sales of toddy at several places in respect of which he had the privilege under the excise law. He, therefore, passed an order of assessment against the petitioner. The petitioner instead of filing an appeal filed a revision petition before the Deputy Commissioner of Commercial Taxes. The Deputy Commissioner rejected it. This petition is filed against the order passed by the Deputy Commissioner of Commercial Taxes and the order of assessment passed by the Commercial Tax Officer.

3. The contention urged by Sri K. Srinivasan, the learned counsel for the petitioner, is that even though the petitioner was the holder of a licence to vend toddy in the entire district during the relevant period he was not liable to pay any sales tax as he had not sold toddy and also there was no evidence to show that anybody else had sold toddy on his behalf. But it is argued on behalf of the department by Sri H. N. Narayan, the learned High Court Government Pleader, that because at several places in the district of South Kanara toddy was being sold by the sub-lessees of the petitioner, the petitioner must be held liable to pay sales tax in respect of the entire turnover. It is also stated that in the instant case the sub-leases had not been approved by the excise authorities and hence the sales effected by the sub-lessees should be treated as sales effected by the petitioner himself.

4. Under the Act sales tax is payable only by a dealer or by some other person so liable under the Act to pay the tax. The department is of the view that the petitioner is liable to pay sales tax as a dealer. The expression 'dealer' has been defined in the Act as follows :

''Dealer' means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration, and includes....'

The rest of the definition is not necessary for the purpose of this case.

5. The contention of the petitioner is that neither he nor any person acting within the scope of his authority had sold toddy during the relevant period. IT is seen from the orders passed by the Commercial Tax Officer and the Deputy Commissioner that no finding is actually recorded on the question whether the petitioner actually sold toddy or on the scope of authority of the several sub-lessees. But the department has proceeded on the basis that the petitioner was constructively liable because the persons who had been treated as sub-lessees by the petitioner had sold toddy. The said opinion of the department is also formed on the basis that in the absence of the recognition of the sub-leases created by the petitioner, the sales effected by the sub-lessees would be in contravention of law and hence the petitioner along should be treated as a person who had sold toddy during the relevant period. I do not think that the view of the department is correct. The expression 'buying, selling, supplying or distributing goods' used in section 2(1)(k) of the Act does not exclude buying, selling, supplying or distributing goods in an illegal way. The liability to pay sales tax does not depend upon whether the business carried on by the dealer is lawful or not. Even when buying, selling, supplying or distributing goods is not authorised by law, a person who carries on those activities would be liable to pay sales tax under the Act. Hence the contention urged on behalf of the department that in the absence of the recognition of the sub-leases granted by the petitioner the turnover of the sales effected by the sub-lessees cannot attract the liability to payment of sales tax is not tenable.

6. The next question is whether in respect of the turnover of the sales effected by the sub-lessees the petitioner can be held liable under the Act to pay sales tax. It may be that a principal is liable to pay sales tax when a person acting within the scope of his authority has effected sales. But that liability depends upon the nature or scope of authority. The authorities under the Act who have passed the impugned orders have not applied their mind to the nature and extent of authority under which these sub-lessees functioned. In the circumstances, I am of the view that the impugned orders passed by the authorities without going into the relevant question are unsustainable and are liable to be set aside. They are accordingly set aside. The case is remanded to the Commercial Tax Officer to dispose of the case afresh in accordance with law and in the light of the observations made above.

7. Case remanded.


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