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The State of Andhra Pradesh and anr. Vs. Shah Jamnadas Amichand - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Appeal Nos. 631 and 632 of 1972
Judge
Reported in[1975]35STC281(AP)
AppellantThe State of Andhra Pradesh and anr.
RespondentShah Jamnadas Amichand
Appellant Advocate The Principal Government Pleader
Respondent Advocate T. Anantha Babu and ; P. Venkataramana Reddy, Advs.
DispositionAppeal allowed
Excerpt:
.....is that the notices which the commercial tax officer has given are perfectly valid and in accordance with the provisions of the..........1972. since the points arising out of these two writ petitions are common, we would, like the learned judge, refer to the facts as they appear in w. p. no. 4237 of 1970.2. the petitioner is a dealer in turmeric. for the assessment year 1964-65, the transactions in turmeric were taxed on the first purchase point in the state. these turmeric were purchased by the petitioner and sold outside the state. under the central sales tax act, he was assessed on a turnover of rs. 3,89,599.07. the tax imposed was rs. 5,478.59.3. dissatisfied with that assessment order, the petitioner carried the matter in appeal to the assistant commissioner, commercial taxes, anantapur. the appellate authority following the decision reported in state of mysore v. yaddalam lakshminarasimhiah setty and sons.....
Judgment:

Gopal Rao Ekbote, C. J.

1. This appeal is from the judgment of our learned brother Parthasarathi, J., given in two Writ Petitions Nos. 4167 and 4237 of 1970 on 22nd February, 1972. Since the points arising out of these two writ petitions are common, we would, like the learned Judge, refer to the facts as they appear in W. P. No. 4237 of 1970.

2. The petitioner is a dealer in turmeric. For the assessment year 1964-65, the transactions in turmeric were taxed on the first purchase point in the State. These turmeric were purchased by the petitioner and sold outside the State. Under the Central Sales Tax Act, he was assessed on a turnover of Rs. 3,89,599.07. The tax imposed was Rs. 5,478.59.

3. Dissatisfied with that assessment order, the petitioner carried the matter in appeal to the Assistant Commissioner, Commercial Taxes, Anantapur. The appellate authority following the decision reported in State of Mysore v. Yaddalam Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C. 231 (S.C.) held that since in the State the transaction was not amenable to tax, it is also not amenable to inter-State tax.

4. While the matter stood thus, the Amendment Act 28 of 1969 came in. Three provisions of the Amendment Act are relevant. Section 6 of the principal Act was amended. Sub-section (1A) was introduced, and according to that provision :

A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter-State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State.

5. This provision has been given retrospective effect in view of the words used at the outset of the section.

6. The second provision was that of Section 9. It reads :

(1) Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, any assessment, reassessment, levy or collection of any tax made or purporting to have been made, any action or thing taken or done in relation to such assessment, reassessment, levy or collection under the provisions of the principal Act before the 9th day of June, 1969, shall be deemed to be as valid and effective as if such assessment, reassessment, levy or collection or action or thing had been made, taken or done under the principal Act as amended by this Act and accordingly-

(a) all acts, proceedings or things done or taken by the Government or by any officer of the Government or by any other authority in connection with the assessment, reassessment, levy or collection of such tax shall, for all purposes, be deemed to be, and to have always been, done or taken in accordance with law ;

(b) no suit or other proceedings shall be maintained or continued in any court or before any authority for the refund of any such tax ; and

(c) no court shall enforce any decree or order directing the refund of any such tax.

7. Sub-section (2) then for the removal of doubts declares that nothing in Sub-section (1) shall be construed as preventing any person from questioning in accordance with the provisions of the principal Act, as amended by the Act, any assessment, reassessment, levy or collection of tax referred to in Sub-section (1) or from claiming refund according to the said provision.

8. The third provision with which we are concerned is Section 10. It relates to the exemption from liability to pay tax in certain cases. The purport of that section is that notwithstanding anything contained in Section 9 or the said amendments, the dealer shall not be liable to pay any tax under the principal Act, as amended by this Act, if he has not collected any tax under the principal Act on the ground that no such tax could have been levied or collected in respect of the sale or any portion of the turnover relating to such sale.

9. In view of these amendments, the Commercial Tax Officer issued notices asking the dealers to claim exemption, if they are entitled to them, within ten days under Section 10 of the Act or otherwise pay the amount as per the assessment validated by Section 9 of the Act.

10. The petitioners, instead of preferring any claim or approaching the Commercial Tax Officer, filed the said two writ petitions challenging the notices. Their main contention was that a combined reading of Sections 9 and 10 would mean that the assessments have to be reopened in order to determine the tax liability.

11. The learned Judge, although has not expressly found that the assessments validated have to be reopened, nevertheless made certain observations at various places in this judgment which virtually amount to directing the reopening of the assessments validated. He also left certain points for consideration of the assessing authority. It is this view that is now assailed in these writ appeals.

12. Even a casual reading of Section 9 would disclose that notwithstanding anything contained in any judgment, all the assessments or reassessments made during a particular period have been validated by the Act with retrospective effect. It only means that even if the assessments were set aside in appeal or quashed in the proceeding under Article 226 of the Constitution, the assessments nevertheless would be valid. That was specifically held in the two Bench decisions of this Court : (1) W. P. No. 682 of 1972 and batch dated 30th November, 1972, and (2) Messrs. Chopperla Suryanarayana Moorthy and Co. v. Additional Commercial Tax Officer 1972 A.P. High Court Notes 162 (Short Notes).

13. In view of these judgments, therefore, there is no question of reopening of the assessments, nor there is any question of determining afresh the turnover. We therefore find it impossible to agree with the learned Judge that the assessments will have to be reopened and the turnover determined afresh. The assessment is validated subject to any remedy which the petitioners may adopt according to Section 9(2) of the Amendment Act. Since no remedy seems to have been adopted, the assessments have become final.

14. Coming then to Section 10, what all it enjoins is that if the dealers have not collected any tax, they must put in a claim and satisfy the taxing authority that they are not liable to pay any tax according to the assessment already validated. If they succeed in satisfying that they have not collected the tax for the concerned transactions, then it is obvious that in spite of assessment the tax will not be collected from them. On the other hand, if they fail to satisfy the Commercial Tax Officer about their claim, it is plain that the assessment validated can always be enforced against them. The burden in such case under Section 10 is squarely placed on the person who claims that he has not collected the tax. Thus the enquiry under Section 10 has very little relevance to the assessments which are validated under Section 9. Those two provisions need not be mixed up. In any case, because of Section 10, the assessment validated would not be reopened or the turnover determined afresh. The proceeding under Section 10 relates only to the exemption from liability to pay tax in certain cases. If the conditions laid down in that section are satisfied, then the liability to pay the tax would not be there and the assessment determining the tax leviable would not be enforced to that extent. It is therefore difficult to agree with the learned Judge that the assessment has to be reopened, the turnover to be redetermined and it is only then that the liability to pay the tax would arise.

15. The contention then was that Section 8A of the amended Act also indicates that the assessment though validated will have to be reopened. We do not find any words in Section 8A which would produce that result. Since no deduction was claimed under Section 8A in the writ petitions and no point relating to that was urged before the learned Judge, we refrain from making any observation in that behalf. We would, however, like to make it plain that nothing mentioned in Section 8A has the effect of reopening the assessment validated under Section 9 of the Act.

16. The result of the foregoing is that the notices which the Commercial Tax Officer has given are perfectly valid and in accordance with the provisions of the Act. They are not vitiated on any ground.

17. Since no other contention was raised, we would allow the appeals, set aside the judgment of the learned Judge and dismiss the writ petitions with costs throughout. Advocate's fee Rs. 100 in each case and in each court.


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