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Sudershan and Co. Vs. the State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos. 1167, 1888 and 3322 to 3326 of 1979, 24343 to 24356 of 1981, 9800 of 1982 and 115 to 118 a
Judge
Reported inILR1985KAR661; [1985]58STC177(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 2(1), 4(3), 5, 5(1) and 17
AppellantSudershan and Co.
RespondentThe State of Karnataka and ors.
Appellant AdvocateM.R. Nayak, Adv.
Respondent AdvocateS. Rajendra Babu, Government Adv.
Excerpt:
.....of time. manner of computation should be indicated in the demand notice. demand not satisfying to the requirement is to bad in law. -- section 46-a: limitation for recovering stamp duty held, question of limitation would arise for consideration only when the demand is made and recovery is enforced and not till them. - this definition under the act is more or less similar to the definition of 'good' under the sale of goods act. the definitions and interpretations of expressions like goods, articles, chattel, personal chattel, commodity, movable (corporal and tangible) and thing are more or less synonymous. in the absence of evidence in that behalf, their lordships held that it was not possible to justify the conclusion that that conditions had been satisfied. sri nayak has placed..........licensed vendors of toddy have challenged the levy and collection of sales tax on the turnover of sale of toddy exigible to tax under entry 82 of the second schedule to the karnataka sales tax act, 1957 (hereinafter referred to as 'the act'). 2. several grounds are urged by sri m. r. nayak appearing for the petitioners and they are (i) that the sale of toddy in their taverns is not a 'sale' within its meaning as defined under section 2(t) of the act and that therefore the petitioners are not 'dealers' whose turnover in the sale of toddy could attract the levy of tax under the act; (ii) that toddy is an 'agricultural produce' and the petitioners are 'agriculturists' whose turnover in sale of toddy is exempt under section 2(k) of the act and hence (iii) that the state legislature is not.....
Judgment:
ORDER

Rajashekhara Murthy, J.

1. In these writ petitions, the petitioners, who are licensed vendors of toddy have challenged the levy and collection of sales tax on the turnover of sale of toddy exigible to tax under entry 82 of the Second Schedule to the Karnataka Sales Tax Act, 1957 (hereinafter referred to as 'the Act').

2. Several grounds are urged by Sri M. R. Nayak appearing for the petitioners and they are (i) that the sale of toddy in their taverns is not a 'sale' within its meaning as defined under section 2(t) of the Act and that therefore the petitioners are not 'dealers' whose turnover in the sale of toddy could attract the levy of tax under the Act; (ii) that toddy is an 'agricultural produce' and the petitioners are 'agriculturists' whose turnover in sale of toddy is exempt under section 2(k) of the Act and hence (iii) that the State Legislature is not competent to impose tax on the turnover of sale of toddy under entry 54 of List II of the Seventh Schedule to the Constitution.

3. We will deal with the question whether the turnover in the sale of toddy in their shops or taverns does not constitute sale in order to attract the levy of tax under the Act later and we will now deal with the last two contentions first.

4. Grounds Nos. 2 and 3 relate to the question whether the petitioners are agriculturists and toddy is an agricultural produce and if so whether the State Legislature is competent to make a law with respect to levy of tax on the sale of toddy under the Act. It is the petitioners' contention that toddy is an agricultural produce and the petitioners are agricultural referred to in the exception to explanation-2 to section 2(k) of the Act.

5. Section 2(k) defines who is a dealer for purposes of the Act.

'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 commissioner, remuneration or other valuable consideration.

'Goods' as defined by the Sale of Goods Act means :

'Goods' means every kind of movable property other than auctionable claims and money; and includes stocks and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

Exception to explanation-2 to section 2(k) reads :

'An agriculturist who sells exclusively agricultural produce grown on land cultivated by him personally shall not be deemed to be a dealer within the meaning of this clause.'

Section 5 of the Act is the charging section. Under section 5(1)(a) the sale of any of the goods mentioned in column (2) of the Second Schedule, by the first or the earliest of successive dealers in the State, is subjected to tax under the said section at the rates specified in the schedule.

Entry 82 of the Second Schedule to the Act provides for levy of tax on the sale of toddy. Second Schedule gives the description of the goods and the rate of tax on the sale of goods referred to therein at single point tax on the first or earliest of successive dealers in the State. It is therefore the contention of Sri Nayak that no sale takes place in the petitioners' taverns since what is sold is the toddy tapped by them from the trees belonging to them. An argument is thus constructed on the presumption that toddy is not 'goods' in order to attract the provisions of the Act, on its sale or purchase and thus falls outside the purview of entry 54 of List II of the Seventh Schedule to the Constitution of India which provides for 'taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I'.

'Goods' is defined under section 2(m) of the Act as follows :

'Goods' means all kinds of movable property (other than newspapers, auctionable claims, stocks and shares and securities) and includes livestock, all materials, commodities, and articles (including those to be used in the fitting out, improvement or repair of movable property), and all growing crops, grass or things attached to, or forming part of the land which are agreed to be severed before sale or under the contract of sale.

This definition under the Act is more or less similar to the definition of 'good' under the Sale of Goods Act. The word 'goods' is of very general and quite indefinite import and primarily derives its meaning from the context in which it is used. The definitions and interpretations of expressions like goods, articles, chattel, personal chattel, commodity, movable (corporal and tangible) and thing are more or less synonymous.

6. Sri Nayak has urged that all the toddy that was sold by the petitioners was tapped from the trees belonging to them. There is a discernible distinction when toddy is tapped by the owner of the trees and when the toddy is collected by further person by himself or through his agent and then sold in the course of their business. The further question is whether it makes any difference if the toddy from one's own trees is sold by the owners and the sale of toddy by a different person other than owner after collecting the same does or does not a amount to a sale of goods as contemplated under the Act. It is unnecessary to deal with this contention any further since no proper averments are found in the petitions nor any foundation is laid for this argument.

7. We are, therefore, left with the next contention urged on behalf of the petitioners, viz., whether toddy is an agricultural produce and the petitioners are agriculturists and if so whether they are entitled to the exemption in respect of the sale of toddy under the Act.

8. In order to appreciate this contention of Sri Nayak, it is necessary to understand the precise connotation of the term 'agriculturist'. Under the exception provided in section 2(k) of the Act referred to above, an agriculturist who sells exclusively agricultural produce grown on land cultivated by him personally shall not be deemed to be a dealer within the meaning of the said clause.

'Agricultural' is defined under section 2(b) of the Act as a person who cultivates land personally. Section 2(i) describes 'cultivation' as meaning agricultural operation to cultivate land on one's own account. 'Agriculture' includes horticulture, raising of crops, grass or garden produce, and grazing, but does not include dairy farming, poultry farming, stock breeding and mere cutting of wood.

Section 2(c) provides that agricultural produce or horticultural produce shall not be deemed to include tea.

9. On an analysis of the various provisions referred to above, an agriculturist who satisfies the requirements of the 'exception' cannot be treated as a dealer for the purpose of this Act. It is therefore necessary to examine who is an agriculturist and what is agricultural income and whether toddy is an agricultural produce which is exempt from tax under the Act.

10. The definition of 'agriculture' as provided under section 2(a) is an inclusive definition with the exception referred to therein. The literal etymological meaning of agriculture in cultivating the soil. However, agriculture is understood as the art and science of cultivating the ground and raising and harvesting crops. Agriculture is also understood is a comprehensive and broad sense as including farming, horticulture and forestry.

11. Article 366 of the Constitution defines 'agricultural income' as follows :

'agricultural income' means agricultural income as defined for the purposes of the enactments relating to Indian income-tax.

12. Section 2(1) of the Income-tax Act, 1961 reads as follows :

'agricultural income' means -

(a) any rent or revenue derived from land which is situated in India and is used for agricultural purposes;

(b) any income derived from such land by -

(i) agriculture; or

(ii) the performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market; or

(iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in paragraph (ii) of this sub-clause.

It is therefore necessary to see how agricultural income is understood for the purpose of the Income-tax Act since under article 366 of the Constitution, agricultural income has to be understood in the manner in which the said phrase is understood for purposes of the Income-tax Act. That evidently is for the purpose of avoiding conflict as to the legislative power of the States in regard to agricultural income. The essential idea underlying the definition of 'agricultural income' under the Income-tax Act is that it must be derived from land which is used for agricultural purposes and is also assessed to land revenue. Having regard to the definition of 'agricultural income' in section 2(1)(a), an income to be 'agricultural income' should be derived from land and the land should be used for agricultural purposes.

In one of the earliest cases in which 'agricultural income' came up for interpretation is a case decided by the Privy Council in Raja Mustafa Ali Khan v. Commissioner of Income-tax, U.P. [1948] 16 ITR 330 .

The definition of 'agricultural income' in section 2(1) of the Indian Income-tax Act of 1922 is the same as it is found in section 2(1) of the 1961 Act.

The question referred for the opinion of the High Court in that case was :

'Whether income from the sale of forest trees growing on land naturally and without the intervention of human agency, even if the land is assessed to land revenue, is agricultural income within the meaning of section 2(1)(a) of the Income-tax Act and as such exempt from income-tax under section 4(3)(viii) of the Act ?'

In that case, income has been derived from the sale of trees described as forest trees growing on land naturally and the case throughout proceeded upon the footing that there was nothing to show that the assessee was carrying on any regular operations in forestry and that the jungle from which trees had been cut and sold was a spontaneous growth.

The Privy Counsel held that unless there is some measure of cultivation of the land, some expenditure of skill and labour upon it, it cannot be said to be used for agricultural purposes within the meaning of the Income-tax Act. In the absence of evidence in that behalf, their Lordships held that it was not possible to justify the conclusion that that conditions had been satisfied.

13. There was some controversy with regard to the interpretation of 'agriculture' and 'agricultural purposes' and the controversy was settled by the Supreme Court in Commissioner of Income-tax v. Raja Benoy Kumar Sahas Roy : [1957]32ITR466(SC) (SC). After discussing the question at length, the Supreme Court expressed its opinion thus :

(i) 'Agriculture' in its primary sense denotes the cultivation of the field and is restricted to cultivation of the land in the strict sense of the terms, meaning thereby tilling of the land, sowing of the seeds, planting and similar operations on the land;

(ii) Operations to be performed after the produce sprouts from the land, e.g., weeding, digging, etc.

It is observed by the Supreme Court in the said case that the basic operations to produce an agricultural produce by cultivation of land, are tilling of the land, sowing of the seeds, planting and similar operations on the land. There should be an integrated activity which constitutes agriculture and the income therefrom can be said to be 'agricultural income.'

14. In Karimtharuvi Tea Estates Ltd. v. State of Kerala : [1963]48ITR83(SC) , the Supreme Court held :

'Entry 46, List II, of the Seventh Schedule to the Constitution, relates to taxes on agricultural income. In view of clauses (3) of article 246 the State Legislature can enact laws about these taxes. Article 366 provides that, unless the context otherwise requires, the expression 'agricultural income' in the Constitution means agricultural income as defined for the purpose of the enactments relating to Indian income-tax. Therefore, the agricultural income about which a State Legislature may enact under entry 46 of List II would be such income as defined in the Indian Income-tax Act.'

15. It is the contention of Sri Nayak that toddy is an agricultural income and that therefore its sale by the owner of the trees should not be taxed under the Act. Toddy is a liquid which is tapped from various palm trees. It is a liquid which exudes from the palm trees which is collected and consumed as a beverage. Applying the tests laid down by the Supreme Court and the Privy Council cited above, toddy cannot be treated as agricultural income for purposes of the Act. Sri Nayak has placed strong reliance on the decision rendered by a Full Bench of the Madras High Court in Commissioner of Income-tax v. Yagappa Nadar AIR 1927 Mad 1038 . That was a decision which arose under the Indian Income-tax Act, 1922 and the question referred for the opinion of the High Court under the Income-tax Act was :

'Whether toddy extracted from cocoanut trees situate on lands assessed to Government revenue is or is not agricultural income within the meaning of section 2(1) and whether the Income-tax Act applies to profits derived from the sale of such toddy ?'

It was held by the Madras High Court that 'income derived from toddy is agricultural income when when it is received by the actual cultivation, whether owner or lessee, of the land on which the trees grow'. It was further held in the said decision that 'if the income is obtained by a person who has not produced the trees from which the toddy is tapped, or has not done any agricultural operation whereby those trees have been raised it is not agricultural income within the meaning of the Act'. It was contended by the petitioner who was a lessee of the trees in that case that the income he derived from the toddy produced from those trees, was agricultural income. But their Lordships observed that it does not at all follow that if he sells the juice to another person and the person makes an income by again selling that product that the letter income is agricultural income.

16. Undoubtedly the toddy that was tapped from the trees was the subject-matter of the said decision and the question was whether income or the sale of toddy is agricultural income or not under the Income-tax Act.

17. In our opinion, if the tests laid down by the Privy Council in Raja Mustafa Ali Khan v. Commissioner of Income-tax [1948] 16 ITR 330 , and the Supreme Court in Commissioner of Income-tax v. Raja Benoy Kumar Sahas Roy : [1957]32ITR466(SC) (SC) and Karimtharuvi Tea Estates Ltd. v. State of Kerala : [1963]48ITR83(SC) (are applied) to the facts of the present case, mere tapping of toddy from the palm trees does not constitute 'agriculture' and the income derived therefrom is not 'agricultural income'. We, therefore, with respect differ from the view expressed by their Lordships of the Madras High Court in the decision relied upon by the learned counsel for the petitioners and hold that toddy tapped by the petitioners from trees in their own lands, as is sought to be made out by the petitioners in these cases, is not agricultural income and that therefore the petitioners are not entitled to claim exemption from tax in respect of the turnover in sale of such toddy in their shops or taverns. As already stated, no sufficient facts are brought about in these petitions in support of the said contention.

18. We shall now take up the first contention, namely, that sale of toddy in the petitioners' taverns is a part of the service rendered by the petitioners and is therefore not a sale to attract the levy of tax under the Act. In support of this contention, Sri Nayak has submitted that the toddy so supplied to the consumers cannot be taken out, but has to be consumed in the premises itself and that the toddy is served to the consumers wherever they are and that thus there is no sale of toddy as such but a service rendered to the consumers. Even this contention is devoid of any merit and the mere ipsi dixit of the petitioners that this is a service rendered by the petitioners to its customers is not sufficient and the argument without any particulars of the service so rendered cannot be entertained. Sri Nayak has also sought to rely upon the principles laid down by the Supreme Court in Northern India Caterers' case : [1979]1SCR557 . We find it difficult to agree with the petitioners' contention that any service is involved in the vending of toddy to the customers in the taverns by the petitioners.

19. It is argued by Sri Rajendra Babu, learned Government Advocate appearing for the State, that what is done by the assessee is only to vend the liquor or the toddy in the shops being so authorised by the authorities under the Excise Act and the Rules and that the question of finding out whether any service is involved at all does not arise. According to the learned Government Advocate what is granted under section 17 of the Excise Act is the grant of lease of right to vend liquor subject to the conditions imposed under the Act and the Rules. It is also brought to our notice the decision of the Supreme Court in State of Karnataka v. Udipi Krishna Bhavan reported in : AIR1981SC1751 wherein the Supreme Court approved what the High Court (sic) had held in Northern India Caterers' case : [1980]2SCR650 as follows :

'Indeed, we have no hesitation in saying that where food is supplied in an eating-house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax. In every case it will be for the taxing authorities to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied is intended.'

It is his further contention that in any case the petitioners do not fall under the exception to explanation-2 to section 2(k) of the Act and the petitioners are dealers under the Act and their turnover in the sale of toddy is rightly brought to tax under the Act.

20. We, therefore, fully agree with the contentions advanced on behalf of the State and hold that the petitioners are not agriculturists and are not entitled to any exemption under the Act and uphold the levy and collection of the tax which is challenged in these petitioners.

21. Having given out anxious consideration to the several contentions raised on behalf of the petitioners, we are of the opinion that the petitioners have not succeeded on any of the grounds urged in support of their contentions.

22. In the result, the writ petitions fail and they are dismissed. There will be no order as to costs.

23. Orders on oral application for grant of certificate of fitness of appeal to the Supreme Court under articles 133 and 134-A of the Constitution and for stay.

24. Immediately after the order was pronounced, Sri M. R. Nayak, appearing for the petitioners, made an oral request for grant of certificate of fitness to appeal to the Supreme Court under articles 133 and 134-A of the Constitution of India and for stay of the order and it is urged that the question decided by us in that cases raises a substantial question of law of general importance and the same needs to be decided by the Supreme Court. In our opinion, these cases does not involve any substantial question of law of general importance that needs to be decided by the Supreme Court. Hence, we reject the oral request. We do not see any justification to grant stay of the order. We, therefore, reject the application for stay also.


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