Skip to content


Kishorilal Radheysham Vs. the Deputy Commissioner of Commercial Taxes, Bangalore City Division, Bangalore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 7290, 7291 and 7300 of 1975
Judge
Reported in[1982]50STC19(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 5(1) and 21(4)
AppellantKishorilal Radheysham
RespondentThe Deputy Commissioner of Commercial Taxes, Bangalore City Division, Bangalore
Respondent AdvocateVanaja, High Court Government Pleader
Excerpt:
.....court in earlier writ petition has passed an interim order stating that it would be open to port trust to issue such notices in accordance with law and in compliance with section 56. - 9. the applicability of 'doctrine of common parlance' to find out as the whether any particular goods belongs to any particular category or answers any particular description is well-settled......3rd circle, bangalore. out of the various goods which the petitioner is dealing, one of them is glass marbles which is used as 'plaything' by the children. the assessment was completed levying tax at 3 per cent under section 5(1) of the act. thereafter, the deputy commissioner issued notice dated 24th december, 1975, under section 21(4) of the act proposing to revise the order of the assessing authority and to bring the turnover of glass marbles to tax at the rate of 6 per cent on the ground that it was glassware falling under entry 109 of the second schedule. aggrieved by that notice dated 24th december, 1975 (exhibit a), the petitioner has presented w.p. no. 7290 of 1975. (ii) writ petition no. 7291 of 1975 : this petition is also presented under similar circumstances, as stated.....
Judgment:

Rama Jois, J.

1. In these three writ petitions presented by the same petitioner who is a dealer registered under the provisions of the Karnataka Sales Tax Act, 1957, (hereinafter referred to as the 'Act'), the following question of law arises for consideration :

'Whether the 'glass marbles' are liable to be taxed only under entry 109 of the Second Schedule to the Act, treating is as 'glassware' at 6 per cent, or could be treated as unspecified goods on the ground that though it is made of glass, at common parlance it is treated as an article of sport and plaything and therefore liable to tax at 3 per cent under section 5(1) of the Act ?'

2. The brief facts in these there petitions are as follows :

(i) Writ Petition No. 7290 of 1975 : For the assessment year 1972-73 the assessment was concluded on 25th January, 1974, by the Commercial Tax Officer, 3rd Circle, Bangalore. Out of the various goods which the petitioner is dealing, one of them is glass marbles which is used as 'plaything' by the children. The assessment was completed levying tax at 3 per cent under section 5(1) of the Act. Thereafter, the Deputy Commissioner issued notice dated 24th December, 1975, under section 21(4) of the Act proposing to revise the order of the assessing authority and to bring the turnover of glass marbles to tax at the rate of 6 per cent on the ground that it was glassware falling under entry 109 of the Second Schedule. Aggrieved by that notice dated 24th December, 1975 (exhibit A), the petitioner has presented W.P. No. 7290 of 1975.

(ii) Writ Petition No. 7291 of 1975 : This petition is also presented under similar circumstances, as stated above, but the order of assessment is dated 26th October, 1972, for the assessment year 1971-72 : The notice of the Deputy Commissioner in this case was also issued on 24th December, 1975, and is marked as exhibit A.

(iii) Writ Petition No. 7300 of 1975 : for the assessment year 1973-74 the assessing authority itself assessed the turnover of glass marbles at 6 per cent on the view that it came under entry 109 of the Second Schedule. The petitioner has prayed for quashing the order of the assessing authority.

3. We shall first take up Writ Petition No. 7300 of 1975 for consideration. During the earlier years, the assessing authority had levied tax on the turnover of 'glass marbles' under section 5(1) of the Act. Similar claim was made by the assessee for the assessment year 1973-74. But the assessing authority was of the view that 'glass marbles' fell within the expression 'glassware' used in entry 109 of the Second Schedule to the Act and therefore, higher rate tax at 6 per cent should be levied, as against the levy of tax at 3 per cent under section 5(1) of the Act during the earlier years. Therefore, the assessing authority proposed to levy tax on the turnover of 'glass marbles' at the rate of 6 per cent. Objecting to the said proposal, detailed objection was filed on behalf of the petitioner which is set out in the order of the assessing authority. The main grounds taken before the assessing authority were as follows :

(1) Though marbles are made of glass, at common parlance they are understood and treated as sport and plaything, and not as 'glassware'.

(2) 'Glass marbles' are not sold generally by any dealer dealing in 'glassware', but are sold by the stationery and general merchants.

4. In support of the above points urged for the assessee, reliance was placed on an order made by the Uttar Pradesh sales tax authority holding that 'glass marbles' did not fall within the entry of 'glassware'. The petitioner had also relied on a magazine published under the title 'TOYS & PLAYTHING' published from Washington (U.S.) in which the marbles were classified under the heading 'Toys and Playthings'. The petitioner pleaded that under the provisions of sales tax laws 'doctrine of common parlance' was applicable to decide the nomenclature of the goods in a given case in the absence of any specific definition given in the relevant sales tax law.

5. The assessing authority rejected the claim of the petitioner. The relevant portion of the order reads as follows :

'The main question is whether glass balls or glass marbles are glassware. When the Sales Tax Tribunal has interpreted glass sheets as glassware, it would not be correct to hold that glass marbles are not glassware. The Advocate has argued at length about the common parlance theory. The theory of common parlance would come when there is any ambiguity with regard to the interpretation of law or statute. When the facts of the case are quite obvious and glaring, the theory of common parlance has no weight.

In the last paragraph of the objection filed by the Advocate he has argued that previous officers and superior officers have not taken up this objection and have appreciated the common parlance theory and it would therefore not be just to raise this issue at this point of time. It was be said that there was no decision by any appellate court previously and it is only in the case of Jaya Frame Works, Davangere v. State of Karnataka (STA No. 408 of 1973 decided on 3rd January, 1974) the Tribunal has held articles made of glass are glassware. When once it is held that glass sheets made of glass are glassware, it can be interpreted that glass marbles are glassware. Considering the objections filed and also after examining the issue, I finally hold that glass marbles are glassware and would be taxed under entry 109 of the Second Schedule to the Karnataka Sales Tax Act, 1957 ...'

6. As can be seen from the aforesaid portions of the order, the assessing authority proceeded on the basis that when glass marbles are made up of glass, the question of application of doctrine of common parlance theory did not arise. It also referred to the decision of the Appellate Tribunal in the case of Jaya Frame Works, Davangere v. State of Karnataka (STA No. 408 of 1973 decided on 3rd January, 1974), in which the Tribunal had held that articles made up of glass sheets were liable to be taxed under entry 109 of the Second Schedule or under section 5(1) of the Act (sic).

7. The relevant entry 109 of the Second Schedule reads as follows :

'Glassware and glass bottles'. The word 'glassware', is not defined. In the absence of the definition of the word 'glassware', the principle of common parlance theory would be applicable, i.e., as to whether in the market, the goods is treated by the dealers and customers as glassware or as plaything as pleaded by the assessee. In fact, the wording of the very entry in which 'glass bottles' is specifically incorporated shows that the legislature considered that it would not have fallen within the expression 'glassware'. Similarly there could be several articles made of glass which at common parlance are not considered as 'glassware'. In order to come to the conclusion whether at common parlance the 'glass marbles' were considered as 'glassware' or as playthings, it was necessary for the assessing authority to consider as to whether the dealers dealing in 'glassware' and the customers considered glass marbles as 'glassware'.

8. Learned counsel for the petitioner submitted that glass marbles were being generally sold only by stationery and general merchants and it is treated by the business community and customers throughout the world as a plaything. In support of his submission, the learned counsel also produced 1971 Directory, an American Publication, issued under the heading 'Toys'. At page 422 thereof marble is listed as one of the 'playthings'. He also produced another similar American Publication under the title 'playthings', in which also marbles have been included as one of the 'playthings'. He also relied on a publication of the Government of India by the Development Commissioner, Small-Scale Industries, in which the scheme for manufacture of glass marbles has been incorporated and it is stated as follows :

'Glass marbles are being used for playing purposes throughout the world by children.'

He further relied on the Goods Tariff, 1965, prescribed by the Railway Department in which separate tariff has been prescribed for 'glassware' and 'glass marbles' at pages 240 and 293 respectively.

9. The applicability of 'doctrine of common parlance' to find out as the whether any particular goods belongs to any particular category or answers any particular description is well-settled. In this behalf, it is sufficient to refer to a decision of this Court in Soundarapandian v. Commissioner of Commercial Taxes [1980] 46 STC 211. In the said case, the question for consideration was as to whether water-colour, poster colour and oil-colour sold ordinarily in stationery shops or book shop and generally used by engineering and drawing students fell under the category of 'paints, colour, dyes and varnish' under 97 of the Second Schedule to the Act. The case of the department was that the items, water-colour, poster colour and oil-colour were also colours and therefore fell within the category of 'colours and paints' used in entry 97 of the Second Schedule to the Act and therefore were liable to be taxed at the rate fixed for the goods mentioned at entry 97. Rejecting the said contention, it was held that in common parlance paints, colours, dyes and varnish set out at entry 97 were those sold by hardware merchants and were meant to be used for surface paintings of walls, doors, etc., and did not comprehend water-colour or poster colour or oil-colour sold ordinarily by stationery merchants and book sellers and used by the students. In coming to that conclusion this Court placed reliance on the decision in Commissioner of Sales Tax v. S. N. Brothers : [1973]2SCR852 in which the Supreme Court pointed out that the meaning given to the words in the dictionary should not be taken as conclusive for the purpose of levy of tax. In the said case, applying the principle of common parlance the Supreme Court concluded that where a word not defined had been used in an entry, it should be treated as an article as understood in common use. The counsel for the petitioner also relied on the decision of the Orissa High Court in State of Orissa v. Janata Medical Stores [1976] 37 STC 33, in which the High Court held that thermometers, lactometers, syringes, eye-wash, glasses and measuring glasses did not fall within the meaning of the expression 'glassware' as used in the relevant entry in the schedule to the Orissa Sales Tax Act. The assessing authority had referred to the order of the Appellate Tribunal in the case of Jaya Frame Works (STA No. 408 of 1973 decided on 3rd January, 1974). It should be pointed out that the said decision was the subject-matter of revision before this Court in Jaya Frame Works v. The Karnataka Sales Tax Appellate Tribunal (STRP No. 67 of 1975) (page 24 infra) and this court by order dated 18th July, 1978, set aside the order of the Tribunal and remitted the matter to the Commercial Tax Officer to decide as to whether the goods constituted 'glassware' or not after recording the necessary evidence, following an earlier decision to the same effect in the case of Dongare & Co. v. Commissioner of Commercial Taxes (STA No. 1 of 1974 decided on 9th March, 1978). The ratio of the above decisions is equally applicable to the instant case. Therefore, in the present case also, in the absence of a definition of the expression 'glassware' in the Act 'doctrine of common parlance' was attracted and it was open for the petitioner to prove that at common parlance it was only considered as plaything and therefore the assessing authority was not right in rejecting the plea put forth by the petitioner and not considering the evidence adduced by the petitioner in that behalf. Therefore, the order of the assessing authority impugned in Writ Petition No. 7300 of 1975 is liable to be set aside.

10. However, as regards the notices issued by the Deputy Commissioner against which the Writ Petition No. 7290 of 1975 and Writ Petition No. 7291 of 1975 have been prescribed (sic), it was open for the petitioner to furnish its reply and to place material before the Deputy Commissioner in the same manner it had done before the assessing authority and if it had done so it was obligatory for the Deputy Commissioner to decide the question applying the principles of common parlance. But the petitioner has approached this Court even before showing cause against the said notice. It cannot be said that the notice issued by the Deputy Commissioner itself was without jurisdiction. Therefore, there is no ground to interfere with the notice impugned in these petitions.

11. For the reasons aforesaid, we make the following order :

(1) In W.P. No. 7300 of 1975 :

(i) Rule made absolute.

(ii) The impugned order of the Commercial Tax Officer, 3rd Circle, Bangalore, dated 29th November, 1975 (exhibit A), in so far as it relates to the turnover of the glass marbles is quashed.

(iii) The assessing authority shall, after giving an opportunity to the petitioner, make a fresh assessment on the turnover relating to glass marbles in the light of this order.

(iv) It is open for the petitioner to adduce any further evidence, if the petitioner so chooses.

(2) In W.P. Nos. 7290 and 7291 of 1975 :

(i) Rule discharged.

(ii) Petitions dismissed.

(iii) The petitioner shall be at liberty to show cause against the notices and the Deputy Commissioner shall pass orders in the light of this order.

12. Ordered accordingly.


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