Skip to content


K.C. Telsong and Sons and ors. Vs. the Commercial Tax Officer, I Circle, Belgaum and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 3100 of 1980
Judge
Reported in1981(2)KarLJ105; [1982]49STC306(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 27, 27(1), 38 and 38(2)
AppellantK.C. Telsong and Sons and ors.
RespondentThe Commercial Tax Officer, I Circle, Belgaum and ors.
Appellant AdvocateB.V. Katageri, Adv.
Respondent AdvocateVanaja, High Court Government Pleader
Excerpt:
.....court. in the circumstances, the compromise entered into between the parties is void and it requires to be recalled. i.a. no. 1/2008 is allowed and i.a. no. iii/2008 is dismissed.   - 2. in this writ petition, the petitioners who are dealers under the karnataka sales tax act have questioned the validity of rule 27(1) of the rules framed under the act as well as form no. 3. the matter complained of in this writ petition is that rule 27(1) of the rules directing the petitioners to issue delivery notes and bills of lading in the prescribed form is an imposition uncalled for and conflicting with what is required under section 27 of the act......rule 27(1) of the rules is ultra vires of section 27(1) of the act. 3. sri b. v. katageri, the learned counsel appearing for the petitioners, has drawn my attention to section 27(1) and (2) of the act which is as follows : 'certain dealers to issue bill or cash memorandum. - (1) every dealer whose turnover exceeds (twenty-five thousand rupees) in any year shall, in respect of all goods sold by him, issue a bill or cash memorandum to the purchaser, signed and dated by him or his servant, manager or agent showing such particulars as may be prescribed and shall keep the counterfoil or duplicate of such bill or cash memorandum duly signed and dated and preserve it for a period of not less than five years from such date. (2) any person who contravenes the provisions of sub-section (1),.....
Judgment:
ORDER

Chandrakantaraj URS, J.

1. This petitioner is disposed of at the stage of preliminary hearing after notice to the respondents and after hearing the learned counsel for the parties.

2. In this writ petition, the petitioners who are dealers under the Karnataka Sales Tax Act have questioned the validity of rule 27(1) of the Rules framed under the Act as well as form No. 14 prescribed under the said rules. The petitioners have stated that they are carrying on business in the capacity of selling commission agents. The petitioners, according to them, have maintained account books such as ledgers, sales bills, purchase bills, awak book, stock registers, etc. The petitioners issue sales bills whenever they effect sales as asserted by them. Their grievance is that the first respondent, the Commercial Tax Officer, has called upon them to maintain records in the prescribed forms under the Karnataka Sales Tax Rules pursuant to the notification of the Government, respondent No. 3. The matter complained of in this writ petition is that rule 27(1) of the Rules directing the petitioners to issue delivery notes and bills of lading in the prescribed form is an imposition uncalled for and conflicting with what is required under section 27 of the Act. It is, therefore, contended by them that rule 27(1) of the Rules is ultra vires of section 27(1) of the Act.

3. Sri B. V. Katageri, the learned counsel appearing for the petitioners, has drawn my attention to section 27(1) and (2) of the Act which is as follows :

'Certain dealers to issue bill or cash memorandum. - (1) Every dealer whose turnover exceeds (twenty-five thousand rupees) in any year shall, in respect of all goods sold by him, issue a bill or cash memorandum to the purchaser, signed and dated by him or his servant, manager or agent showing such particulars as may be prescribed and shall keep the counterfoil or duplicate of such bill or cash memorandum duly signed and dated and preserve it for a period of not less than five years from such date.

(2) Any person who contravenes the provisions of sub-section (1), shall, on conviction, be punishable with a fine equal to double the amount of the bill or the cash memorandum in respect of which such contravention has occurred or fifty rupees whichever is less.'

It is his argument that a dealer in the absence of a definition of wholesale dealer is confused as to whether or not he is required to issue anything other than bills of sale referred to in section 27 of the Act. It is his further argument that the petitioners are aggrieved by the threat of prosecution by the authorities under the Act if they do not issue delivery notes or bills of lading. According to the learned counsel for the petitioners, an average businessman cannot fill up the delivery note in the prescribed form. The learned counsel has also argued that rule 27(1) of the Rules is in excess of the power conferred on the Government to frame rules under the Act. Rule 27(1) of the Rules reds as follows :

'27. Delivery notes to accompany certain consignments. - (1) Every wholesale dear, while delivering goods to a dealer in pursuance of sale where the aggregate amount for which goods are sold will be five hundred rupees or more, shall issue a bill of lading in triplicate in form 14.

Explanation. - (i) 'Wholesale dealer' means any person who sells goods or keeps goods for sale to dealer for trade.

(ii) 'Retail dealer' means any person who sells or keeps for sale goods for the purpose of consumption by the person by whom or on whose behalf they are, or may be purchased.

(2) The bill of lading issued as aforesaid shall be duly signed by the owner of the goods or his authorised agent or manager.

(3) One copy of the bill of lading shall be handed over to the buyer or his agent, where the goods are transported by such buyer or his agent after effecting a purchase of the goods, and to the carrier through whom the goods are transported in other cases. The second copy of the bill of lading shall be sent to the Assistant Commissioner of Commercial Taxes having jurisdiction over the area, and the third copy of the bill of lading shall be retained by the person who draws it.:

4. The contentions advanced by the learned counsel are required to be summarily rejected as not tenable. Rule 27(1) is not prescribed in order to give effect to section 27(1) of the Act. Section 27(1) is an independent section making it compulsory that every dealer issues bills in respect of all sales effected by him, so that the transaction is accepted with reference to the accounts maintained by such a dealer and the bill issued. On the other hand, section 38 of the Act empowers the State Government to frame rules to give effect to the provisions of the Act and also to specially provide for certain things enumerated in that section. Section 38(2)(d-1) of the Act reads as follows :

'38. (2) In particular and without prejudice to the generality of the forgoing power, such rules may provide for ...........

(d-1) the administration of the check posts set up and the barriers erected under this Act and the regulation of work therein;'.

Similarly section 38(2)(j-3) and (j-4) read as follows :

'38. (2) In particular and without prejudice to the generality of the forgoing power, such rules may provide for ...........

(j-3) the issue of delivery notes or way bills in respect of goods delivered or transferred to retail dealers in pursuance of sales effected to them, the form and manner of their issue and the time for which they should be preserved;

(j-4) the extent of liability of commission agent, broker, del credere agent, auctioneer or any other mercantile agent, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal;'.

5. The delivery note prescribed under rule 27(1) is required to be in form 14, which is as follows :

'Delivery Note

[see rule 27(1)]

1. Name and complete address of the consignor.

2. Registration certificate number of the consignor under the Karnataka Sales Tax Act, 1957, if any.

2A. Bill No. or cash memorandum No. issued by the seller in respect of the goods.

3. Name and complete address of the consignee.

4. Registration certificate number of the consignee under the Karnataka Sales Tax Act, 1957, if any.

5. Destination of goods.

6. Description of goods.

7. Quantity of the goods.

8. Name and address of the person (if any) in-charge of the goods.

9. Name and address of the person driving the vehicle or in-charge of an animal or other means of conveyance.

10. Vehicle number, if any.

11. Name of the owner of the goods.

12. Signature of the owner of the goods or his authorised agent or manager. Date ............. ................................. Signature or thumb impression of the person transporting the goods.'

Therefore, specific power has been conferred by the Act on the Government to make rules in respect of the goods delivered or transported to retail dealers in pursuance of the sales effected to them, as it is clear from the language of section 38(2)(j-3). Section 38(2)(j-4) marks it clear that a commission agent, broker, del credere agent, auctioneer or any other mercantile agent, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal is also a dealer so long as he acts for a principal. Insistence of delivery note and way bills in the form prescribed, as set out above, assists the authorities under the Act undoubtedly to effectually administer the check posts set up and barriers erected under the Act and regulation of work therein. Therefore, prima facie, it cannot be said that making rule 27(1) or prescribing form No. 14 is in excess of the powers conferred by the Act on the Government.

6. However, the argument of the learned counsel is that it is not so much the excess of the power which is otherwise conferred on the Government, but such excess of power resulting in repugnance to the requirements of section 27(1) of the Act. Therefore, the learned counsel contended that when the rule which is repugnant to an express provision of the Act, the Act alone must prevail and not the rule. I have already pointed out that section 27(1) of the Act is a requirement to be fulfilled by all dealers in the Act; whereas rule 27 requires only the wholesale dealers to maintain and issue delivery notes in triplicate. It is only a class of dealers, for purposes of maintaining a proper and effective control and check over the movement of goods eligible to tax that are required to comply with rule 27(1). Rule 27(1) itself defines the wholesale dealers and the retail dealers. The learned counsel was incorrect in submitting that in the absence of definition it is difficult for the petitioners to understand who were the wholesale dealers and who were not. Even otherwise, the petitioners must know who they are, either wholesale dealers or retail dealers, in trading business. Normally understood the wholesale dealer is one who sells goods to other traders who are retailers of the goods. That is what the definitions under rule 27(1) of the Rules also indicate. In this position, I am unable to appreciate the argument of the learned counsel that there is ambiguity of the definition of the wholesale dealers and the retail dealers, leading to confusion as to which of the dealers should give delivery notes or the bills of lading.

7. Admittedly, the petitioners are traders. They have not chosen to state in what commodity they trade except it is submitted from the Bar that the petitioners are commission agents in market yards registered under the Agricultural Produce (Marketing and Regulations) Act, 1966. It has therefore been argued by the learned counsel that it is impossible for them to fill up item No. 12 in form 14 or item No. 2A. As can be seen item 2A merely refers to the bill number, or cash memorandum number issued by the seller in respect of the goods. This requirement, according to the learned counsel, is not possible as agriculturists do not issue bills. No doubt, it is true that agriculturists are not supposed to issue a bill. But, nothing prevents the commission agents from preparing bills themselves and obtain the signatures of the agriculturists/sellers and enter that bill number in form No. 14. Similarly, so far as item No. 12 is concerned, it has been argued that the owner of the goods, viz., the agriculturist, will not be in the market yard to sign the delivery note or the bill of lading. According to item No. 12, the owner of the goods or his agent or manager can also sign the delivery note. The petitioners themselves acknowledge that they are the commission agents and, therefore, they can also sign in that column as agents of the agriculturists/sellers.

8. I am of the view that there is no legal infirmity of the type pointed out by the learned counsel which calls for striking down rule 27(1) of the Rules. The petition is also misconceived and, in my opinion, it is frivolous.

9. Therefore, the petition is rejected without issuing rule.

10. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //