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Mac Charles Brothers (Private) Limited and anr. Vs. the Commercial Tax Officer, X Additional Circle, Bangalore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit petition No. 17936 of 1984
Judge
Reported inILR1985KAR3294; [1986]63STC452(Kar)
ActsCentral Sales Tax Act, 1956 - Sections 8(1) and 8(3); Central Sales Tax (Registration and Turnover) Rules, 1957 - Rules 13 and 53; Karnataka Sales Tax Act of 1957 - Sections 20; Constitution of India - Article 226
AppellantMac Charles Brothers (Private) Limited and anr.
RespondentThe Commercial Tax Officer, X Additional Circle, Bangalore
Appellant AdvocateG. Sarangan, Adv.
Respondent AdvocateH.L. Dattu, High Court Government Pleader
Excerpt:
- - what may be good for one industry may not be good for another industry. so far as hotel industry, the peculiarities attached to that industry must be clearly kept in view. any false representation by the non-resident buyer who has signed the c forms will expose him to grave consequences for breach of statutory provisions, but the forms as such cannot be condemned and put aside to defeat the seller's right and claim of taxation under section 8(1) of the act. air1967sc234 the supreme court referred to these principles and impliedly approved the same and in any event has not disapproved the same......cst act and rule 13 of the rules that supplement the same and the principles that should be govern claims for registration is now concluded by the rulings of the supreme court in indian copper corporation ltd. v. commissioner of commercial taxes, bihar : air1965sc891 , j. k. cotton spinning & weaving mills co. ltd. v. the sales tax officer, kanpur : [1965]1scr900 and a division bench ruling of this court in ballarpur straw board mills limited v. state of karnataka [1978] 42 stc 401, on which both sides rely. in j.k. cotton spinning & weaving mills co. ltd.'s case : [1965]1scr900 the supreme court speaking through shah, j. (as he then was) expounded the same thus : 'the expression 'in the manufacture of goods' should normally encompass the entire process carried on by the dealer of.....
Judgment:

K.S. Puttaswamy, J.

1. This case was posted before me for orders on 3rd December, 1984, on the interim prayer made by the petitioner. But, as agreed to by both sides, this case was treated as listed for final hearing on 3rd December, 1984, and was accordingly taken up for hearing on that day and then continued today also.

2. M/s. Mac Charles Brothers (Private) Limited - petitioner-1 who will be hereafter referred to as the petitioner has undertaken the construction of a five star hotel on premises No. 28, Sankey Road, Bangalore City.

3. On 30th August, 1983, the petitioner made an application before the Commercial Tax Officer, X Additional Circle, Bangalore ('CTO') under the Central Sales Tax Act of 1956 ('the CST Act') and the Central Sales Tax (Registration and Turnover) Rules, 1957 ('the Rules') for registration in dealing with the articles detailed in an annexure to that application. On an examination of the same, the CTO issued a registration certificate on 23rd January, 1984, to be valid from 9th October, 1983, for certain specified goods only and impliedly rejected the same for all other goods. In so far as the CTO rejected the said application, the petitioner approached this Court in Writ Petition No. 15158 of 1984 which was disposed of by this Court on 10th October, 1984, with a direction to the CTO to redetermine the matter. In compliance of that order, the CTO heard the petitioner and made an order on 18th October, 1984, (annexure-H) accepting the case of the petitioner for 'cold storage and refrigeration equipment' and rejecting the same for all other goods. In this petition under article 226 of the Constitution, the petitioner has challenged the order dated 18th October, 1984, of the CTO to the extent it has rejected its application and has sought for a writ in the nature of mandamus to the CTO to include all goods specified in its application.

4. But, at the hearing of this case, the petitioner has filed a memo stating that it does not press its claim for 'building materials and stones' and, therefore, the same is rejected as not pressed to that extent and the case examined in other respects only.

5. Sri G. Sarangan, learned counsel for the petitioner contends that the CTO in rejecting the application made by his client had not really examined the application, the nature of the industry carried on, the true scope and ambit of section 8(3)(b) of the CST Act and its application thereto to the fact situations.

6. Sri H. L. Dattu, learned High Court Government Pleader appearing for the respondents, in justifying the order on the very grounds stated in the impugned order and other grounds, contends that the impugned order made by the CTO was appealable under section 20 of the Karnataka Sales Tax Act of 1957 ('the KST Act') both on questions of fact and law and this is not a fit case in which this Court should exercise its extraordinary jurisdiction before the petitioner avails and exhausts the legal remedies available to it under the Act. In the very nature of things it is necessary to examine this later contention of Sri Dattu first as in the event of this Court accepting the same, the question of this Court examining the merits will not arise.

7. An order made under the CST Act refusing registration in part also is appealable under section 20 of the KST Act is not disputed by Sri Sarangan. But, he contends that all the fact situations justify this Court's interference.

8. The existence of an alternative remedy does not really touch on the jurisdiction of this Court to exercise its jurisdiction under article 226 of the Constitution. The existence of an alternative remedy is only one of the factors to be taken into consideration in deciding whether this Court should or should not interfere with an order made by an authority. As pointed out by the Supreme Court and this Court in more than one case, the existence of an alternative remedy should properly be taken into consideration before issuing rule nisi itself and not at the stage of final hearing of the case.

9. On the first occasion also, this Court entertained the ealier writ petition of the petitioner without insisting on exhausting the legal remedies available under the Act and those very reasons, though not expressly dealt and rejected then, justify this Court to examine the case of the petitioner on merits only on this occasion also. Even otherwise, as by the time the petitioner avails the legal remedies available under the Act and exhausts them it will be compelled to pay higher rates of tax to its selling dealers in the other States from whom it cannot possibly recover the difference, if it were to ultimately succeed before any of the appellate and revisional authorities constituted under the Act. For all these reasons, I see no merit in this preliminary objection urged by Sri Dattu and I reject the same. With this it is now necessary to examine the merits.

10. While granting the certificate of registration for certain goods and rejecting the same for others, the CTO contravening the requirements of rule 53 of the Rules and the principles of natural justice, did not give reasons to reject the application. In its order, this Court took exception to the previous order made by the CTO on the ground that it was not a speaking order. But, in the present order also, the CTO regretfully has repeated the same mistake. The order made by the CTO after hearing is a fairly lengthy order but contains no reasons for rejecting the application. I am distressed at the way the CTO has performed his legal duty. Sri Dattu realising this infirmity in the order urges for over again remitting the matter to the CTO for fresh disposal.

11. Already there was one remand by this Court and another remand besides being unjustified, is not likely to yield any fruitful result for anybody. I, therefore, reject this contention of Sri Dattu and proceed to examine the case on merits.

12. In its application, the petitioner had asserted that it had undertaken the construction of a five star hotel and the nature of that industry justifies the inclusion of the several items now in dispute. On both the occasions, the CTO did not even doubt the same. The assertion of the petitioner that those items were integrally connected with the manufacturing process of its industry and the ultimate production of goods, justifying registration under the CST Act and the Rules is not denied by the CTO. But, the non-traversal or denial by itself cannot be a ground to accept the claim of the petitioner.

13. The scope and ambit of section 8(3)(b) of the CST Act and rule 13 of the Rules that supplement the same and the principles that should be govern claims for registration is now concluded by the rulings of the Supreme Court in Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes, Bihar : AIR1965SC891 , J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. The Sales Tax Officer, Kanpur : [1965]1SCR900 and a Division Bench ruling of this Court in Ballarpur Straw Board Mills Limited v. State of Karnataka [1978] 42 STC 401, on which both sides rely. In J.K. Cotton Spinning & Weaving Mills Co. Ltd.'s case : [1965]1SCR900 the Supreme Court speaking through Shah, J. (as he then was) expounded the same thus :

'The expression 'in the manufacture of goods' should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods. Where any particular process is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would, in our judgment, fall within the expression 'in the manufacture of goods''.

In Ballarpur Straw Board Mills Limited's case this Court has applied these very principles. Bearing this exposition, the claim made requires to be examined with due regard to the nature of the industry the applicant proposes to establish and the ultimate production of goods by that industry. What may be good for one industry may not be good for another industry. So far as hotel industry, the peculiarities attached to that industry must be clearly kept in view. Everything that goes or is connected with convenience and comfort of the customers for whom it is primarily or exclusively established, have to be treated as falling within the expression of the term 'in the manufacture of goods'.

14. When I examine the claim made by the petitioner with reference to every one of the items for which it had registration, it is not possible to hold that they are not integrally connected with the ultimate production of goods. In this view, the rejection by the CTO was unjustified and illegal.

15. In dealing with claims for registration under the CST Act and the scope of inquiry to be made thereto in Deputy Commissioner of Commercial Taxes, Madras Division v. Manohar Brother [1962] 13 STC 686 (Mad.) a Division Bench of the High Court of Madras consisting of Jagadisan and Srinivasan, JJ., expressed thus :

'It is wholly unnecessary for the assessing authority to investigate the truth or otherwise of the manifest representation made by a non-resident buyer by his keeping all the purposes set out in the form without deleting any one or more of them. Any false representation by the non-resident buyer who has signed the C forms will expose him to grave consequences for breach of statutory provisions, but the forms as such cannot be condemned and put aside to defeat the seller's right and claim of taxation under section 8(1) of the Act.'

In State of Madras v. Radio and Electricals Ltd. : AIR1967SC234 the Supreme Court referred to these principles and impliedly approved the same and in any event has not disapproved the same. With respect, the principles enunciated in Manohar Brothers' case [1962] 13 STC 686 (Mad.) is sound and I am in respectful agreement with the same.

16. On the principle enunciated in Manohar Brothers' case [1962] 13 STC 686 (Mad.) also the CTO should have allowed registration except for those items that are not pressed, which however, does not prevent him to take action against any misuse by the petitioner.

17. In the light of my above discussion, I quash the impugned order except to the extent of 'building materials and stones' and issue a writ in the nature of mandamus to the respondent to include all other items refused in that order in the certificate of registration already issued to the petitioner under the CST Act.

18. Writ petition is disposed of in the above terms. But, in the circumstances of the case, I direct the parties to bear their own costs.

19. Let this order be communicated to the respondent within 10 days from this day.

20. Writ petition allowed.


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