Skip to content


Shafeeq Shameem and Co. and anr. Vs. the State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petitions Nos. 929 and 1110 of 1961, 195 of 1962 and 312 of 1963
Judge
Reported in[1964]15STC828(AP)
AppellantShafeeq Shameem and Co. and anr.
RespondentThe State of Andhra Pradesh and ors.
Appellant AdvocateK. Subrahmanya Reddy, Adv.
Respondent AdvocateThird Government Pleader
Excerpt:
.....force of the amended provision. - 717 the above passage clearly indicates that a purchase preceding an export sale is validly taxable under the provisions of the madras general sales tax act, i......to the petitioner proposing to assess the petitioner's purchasing branch on the turnover of raw skins purchased by that branch under the directions of the head office, after rejecting the objection which had been raised by the petitioner to the proposed assessment.4. the contentions of the petitioner, m. a. khader, in his various writ petitions are as follows :-(1) the sale is an inter-state sale and, therefore, the state of andhra pradesh cannot levy sales tax.(2) tax cannot be lawfully levied on raw skin as it is not an article fit for consumption.(3) tax can be levied only at the point of purchase and cannot be levied on the writ petitioner, m. a. khader, and the purchase was in madras state and not in andhra pradesh state.5. shafeeq shameem & co. were assessed to sales tax by the.....
Judgment:

Anantanarayana Ayyar, J.

1. Muhammad Abdul Khader filed W. P. No. 195 of 1962 praying for a writ of prohibition or other appro priate writ or order directing the two respondents to forbear and desist from further proceedings to assess him to sales tax for the assessment year 1957-58 in pursuance of a notice dated 15th February, 1962, issued by the Deputy Commercial Tax Officer, Hyderabad III, who is the second respondent. The first respondent is the State of Andhra Pra desh. The same petitioner filed a similar writ petition, W.P. No. 1110 of 1961 regarding the assessment year 1961-62 and W. P. No. 312 of 1963 regarding the assessment year 1958-59. In all the three writ petitions, there are the same two respondents and the same points are involved.

2. Shafeeq Shameem & Co., skin merchants of Vijayanagaram, filed W. P. No. 929 of 1961 praying for a writ of certiorari and prohibition or any other appropriate writ or direction, for quashing the Order of assessment No. 6094/59-60 dated 30th December, 1960, which had been passed by the Commercial Tax Officer, Visakhapatnam, and for a direc tion to the respondents to desist from taking further proceedings in pursuance of that Order of assessment. In that writ petition, there are three respondents. The first respondent is the State of Andhra Pradesh, as in the other three writs. The second respondent is the Commercial Tax Officer, Visakhapatnam. The third respondent is the Deputy Commissioner of Commercial Taxes, Kakinada. The third Government Pleader, Sri P. Ramachandra Reddy, representing the respondents in all the writ petitions, contested those petitions. All the writ petitions were heard together by common consent, as they involve common questions of law. The questions concerned in W. P. Nos. 1110 of 1961, 195 of 1962 and 312 of 1963 are identical, in addition to their being filed by the same person. For convenience, those writs are referred to as the writs of M. A. Khader.

3. The petitioner, M. A. Khader, is a skin merchant with his head office at Dindigul in Madras State. He has a purchasing branch at Hyderabad for purchsing raw skin in the State of Andhra Pradesh and delivering them- in Madras State. The Deputy Commercial Tax Officer issued notice to the petitioner proposing to assess the petitioner's purchasing branch on the turnover of raw skins purchased by that branch under the directions of the head office, after rejecting the objection which had been raised by the petitioner to the proposed assessment.

4. The contentions of the petitioner, M. A. Khader, in his various writ petitions are as follows :-

(1) The sale is an inter-State sale and, therefore, the State of Andhra Pradesh cannot levy sales tax.

(2) Tax cannot be lawfully levied on raw skin as it is not an article fit for consumption.

(3) Tax can be levied only at the point of purchase and cannot be levied on the writ petitioner, M. A. Khader, and the purchase was in Madras State and not in Andhra Pradesh State.

5. Shafeeq Shameem & Co. were assessed to sales tax by the Com mercial Tax Officer, Visakhapatnam, on the basis that that company was only a purchasing agent and, in that capacity purchased raw hides and skins and sent them to A. Hajee Abdul Shukoor & Co. of Madras for whom the former company was purchasing agent. The contentions raised and argued before us in W. P. No. 929 of 1961 are Nos. 1 and 2 mentioned above.

6. Contention No. 2.-Beyond doubt or dispute, the raw hides and skins originated within the State of Andhra Pradesh and were sent as such to Madras State without any alteration or processing within Andhra Pradesh State, for being tanned and converted into tanned leather in Madras. The learned Advocate for the petitioners, Sri K. Subrahmanya Reddy, contends that raw hides and skins are unfit for consumption. It is true that for a person who requires tanned leather or finished leather goods and can consume only such articles, raw hides and skins are not articles fit for consumption. But, for the tanner who wants to ply his business of tanning by converting raw hides and skins into leather, raw hides and skins form the raw materials which he consumes in the process and business of tanning and leather is the finished product which he produces. In Anwarkhan Mehboob Co. v. State of Bombay A.I.R. 1961 S.C. 213 at p.216, the question arose whether, when tobacco was delivered in the State of Bombay for the purpose of changing it into a commercially different article, viz., bidi patti, the delivery was for the purpose of consumption. Their Lordships observed as follows :-

Consumption consists in the act of taking such advantage of the commodities and services produced as constitutes the ' utilization' thereof....But the fact that there is for each commodity what may be considered ordinarily to be the final act of consumption, should not make us forget that in reaching the stage at which this final act of consumption takes place the commodity may pass through different stages of production and for such different stages, there would exist one or more intermediate acts of consumption. Thus, the final act of con sumption of cotton may be considered to be the use as wearing apparel of the cloth produced from it. But before cotton has become a wearing apparel, it passes through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned cotton is spun into yarn by the spinner ; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor. At each of these stages, distinct utilities are produced and what is produced is at the next stage consumed. It is usual, and correct to speak of raw cotton being consumed in ginning; of ginned cotton being consumed in spinning; of spun yarn being consumed in weaving; of woven cloth being consumed in the making of wearing apparel....This conversion of a commodity into a different commercial commodity by subjecting it to some processing is consumption within the meaning of the Explanation to Article 286 no less than the final act of user....

7. It is obvious that raw hides and skins are being consumed in the process of tanning in which a distinct utility is produced by a produc tion of tanned leather. So, this contention is not tenable.

8. Contention No. 3.-Section 6 of the Andhra Pradesh General Sales Tax Act (Act VI of 1957) runs as follows :-

Notwithstanding anything contained in Section 5, the sales or purchases of declared goods by a dealer shall be liable to tax at the rate, and only at the point of sale or purchase specified against each in the Fourth Schedule....

9. Item 6 in Schedule IV to the Act runs as follows:-

6. Hides and skins :(a) untanned hides When purchased by a 2 nayeand skins. tanner in the State at Paisethe point of purchase in theby the tanner and in rupee.'all other cases at thepoint of purchase bythe last dealer whobuys them in the State.

10. We find no reason to disagree with the view of the Sales Tax Authori ties that Shafeeq Shameem & Co., i.e., the writ petitioner in W. P. No. 929 of 1961, was purchasing agent of the company in Madras State to whom the purchaser sent the goods. It will be observed that, under the above provision, the tanner, who is the purchaser, has to pay the sales tax at the point of purchase. The learned Advocate for the petitioners seeks to rely on the decision in Anwarkhan Mehboob Co. v. State of Bombay A.I.R. 1961 S.C. 213. In that case, the question arose whether the provi sions in the Bombay Sales Tax Act did not authorise the imposition, levy or collection of any purchase tax on the transaction in question. The relevant provision in Section 10(1) of the Bombay Sales Tax Act, 1953, ran as follows :-

There shall be levied a purchase tax on the turnover of pur chases of goods specified in column 1 of Schedule B, at the rates, if any, specified against such goods in column 4 of the said Schedule....

11. The above provision is substantially similar in effect to the provi sion in Section 6 of the Andhra Pradesh General Sales Tax Act. In the Schedule concerned in that case, bidi tobacco was not specifically mentioned and an argument was advanced that it did not come under entry 80 which ran as follows :

All goods other than those specified from time to time in Sche dule A and in the preceding entries.

12. That contention was repelled. In the present case, there is no scope for any such contention in view of the specific mention of untanned hides and skins in item 6 of Schedule IV. In the above case, there was no contention raised or considered that purchase tax could not be levied. But, all the same, the fact remains that their Lordships did not find anything illegal in the provision of purchase tax in the Act. The learned Advocate for the petitioners has contended that, though the sale took place in Hyderabad, the purchase took place in Madras and not in Hyderabad, so far as the writ petitions of M. A. Khader are concerned. It is not possible to accept this contention. For, the sale took place in Hyderabad to the purchasing branch of M. A. Khader and the purchase by the latter also took place at the same time and at the same place, namely, Hyderabad within Andhra Pradesh State.

13. In State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. [1958] 9 S.T.C. 353, it was observed that the expression ' sale of goods ' in entry 48 is a nomen juris, its essential ingredients being an agreement to sell mova bles for a price and property passing therein pursuant to that agreement.

14. In Khimji Vishram and Co. v. State of Andhra Pradesh [1962] 13 S.T.C. 779 at pp. 783, 784, a con tention was raised before a Division Bench of this Court, of which one of us was a member, regarding Section 8(2) of the Central Sales Tax Act (74 of 1956). The learned Judges dealt with it as follows:

This contention, when analysed, reduces itself to this, namely, that the word 'sale' used in Section 8(2) of the Central Act means only a sale and cannot take in a purchase. In our opinion, this argument is unsound. The Section, no doubt, refers to a sale but every trans action of sale involves,, the concept of both a sale and a purchase.

Where goods are sold, the transaction is one of sale from the point of view of the seller but from the point of view of the purchaser it is a transaction of purchase....

If so much is conceded, there is really no need to make a specific mention of 'purchase' in Section 8(2), the omission of which has, in fact, been responsible for the argument advanced in this case.

15. In the present case, Section 6 of the Andhra Pradesh General Sales Tax Act read with item 6 in Schedule IV has a specific provision for tax on the purchaser when the tanner makes the purchase.

16. In J. K. Jute Mills Co., Ltd. v. State of Uttar Pradesh [1961] 12 S.T.C. 429 at p. 437, it has been observed as follows :

In the context, the words 'on the occasion of the sale ' have reference to the character of the transaction and not to the point of time at which the duty becomes leviable, and they have no bearing on the question as to when such a tax could be imposed.

17. In that case, the question was whether a sales tax could be imposed with retrospective operation by the passing of a Validation Act, considering the fact that the sales tax was a tax on the occasion of sale.

18. In Tata Iron & Steel Co. Ltd. v. State of Bihar [1958] 9 S.T.C. 267 at p. 284, the question arose whether certain provisions of the Bihar Sales Tax Act, 1947, imposing on the dealer the liability to pay a tax on sale was within the legisla tive competence of the Legislature of Bihar. It was observed by their Lordships of the Supreme Court as follows :

The argument on this point is that sales tax is an indirect tax on the consumer....In our judgment this argument is not sound. From the point of view of the economist and as an economic theory, sales tax may be an indirect tax on the consumers, but legally it need not be so....

19. In this case, the provisions in the Act and the Schedule are for collecting sales tax direct from the tanner who is the purchaser and consumer of raw hides and skins and the purchase was done in the Andhra Pradesh State.

20. We find that this contention is untenable.

21. Contention No. 1 :-Section 3 of the Central Sales Tax Act runs as follows:-

Section 3. A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase-

(a) occasions the movement of goods from one State to another; or

(b) is effected by a transfer of documents of title to the goods during their movement from one State to another. * * * *

22. The learned Advocate for the petitioners contends that the sales concerned in these proceedings come under Section 3(a) as they occasion ed the movement of untanned hides and skins from Andhra Pradesh State to Madras State. The learned Government Pleader points out that in each of the sales concerned in these cases, the transaction of sale and purchase became complete within Andhra Pradesh State, that the movement took place subsequently, by way of the purchasing agent within Andhra Pradesh State sending the goods (whose purchase was complete) to his principal in Madras, in so far as W. P. No. 929 of 1961 was concerned and that, in the other writ petitions, the pur chaser, M. A. Khader was himself taking the goods away to Madras State from his branch office in Hyderabad. We find that this sub mission of the learned Government Pleader is correct.

23. In Sriram Venkata Subbarao v. State of Andhra Pradesh [1960] 11 S.T.C. 646 at p. 652, the facts were as follows :

The appellants signed contract forms as agents for Bombay dealers and made purchases of cotton inside the Andhra State on behalf of those Bombay dealers, took delivery of the cotton and despatched it to the Bombay dealers. The appellants also charged the Bombay dealers, commission and other charges. It was held that the appellants were liable to pay tax under Section 14-A of the Madras General Sales Tax Act (IX of 1939) and that the sale was completed inside the State and hence the sale was not an inter-State sale for the purpose of Article 286 of the Constitution. The learned Judges observed as follows :

The expression 'in the course of inter-State trade' used in Article 286(2) of the Constitution is pregnant with meaning. If the sale is completed wholly in the State itself, the competence of State Legisla ture to tax the sale must be placed beyond the pale of dispute. Of course, the State shall have no power to tax what are outside sales....

24. The provisions of law with which we are concerned in the present case under the Andhra Pradesh General Sales Tax Act are substantially similar with the provisions of the Madras General Sales Tax Act, and the provision of Section 3(a) of the Central Sales Tax Act are sub stantially similar in relevant aspects with the provisions of Article 286(2) of the Constitution which were concerned in that case, though there is some difference in wording, so far as the present case is concerned.

25. In J. K. Jute Mills Co., Ltd. v. State of Uttar Pradesh [1961] 12 S.T.C. 429 at p. 437, it was observed that, where the transaction is one of sale of goods as known to law, the power of the State to impose the tax thereon is plenary and unrestricted subject only to any limitation which the Constitution might impose.

26. In Government of Andhra v. Nagendrappa [1956] 7 S.T.C. 568 at pp. 575, 579, the relevant facts were as follows : Untanned hides and skins were purchased by licensed dealers within the Andhra State and sent to commission agents outside and sold and exported by those agents to foreign buyers. The Andhra State sought to levy sales tax upon the dealers in the State on the amounts for which they had bought the untanned hides and skins and exported out of India. The tax was sought to be levied on them as the last dealers who had bought untanned hides and skins in the Andhra State. The relevant law in force was contained in the Madras General Sales Tax Act. The Andhra Pradesh General Sales Tax Act had not come into existence and the Central Sales Tax Act of 1956 also had no application. The questions that arose were:(1) Whether the levy of the tax is authorized by the Act and the Rules? (2) Whether, even if so authorized, the Act and the Rules are not repugnant to Article 286(2) of the Constitution? The learned Judges proceed to interpret the words in Article 286(2) of the Constitution 'in the course of the import of the goods into, or export of the goods out of, the territory of India'. They observed as follows :

Is the exemption limited to sales by export and purchases by import, that is to say, those sales and purchases which occasioned the export or import as the case may be or does it extend to other transac tions directly or immediately connected in intention or purpose with such sales or purchases? Could it be said that in addition to the sales and purchases of the kind described above, the exemption covers the last purchase by the exporter and the first sale by the importer, as being so directly and proximately connected with the export sale or import purchase as to form part of the same transaction? If this last question is answered in the affirmative, Rule 16(2) (ii) would be repug nant to Article 286(2) of the Constitution:..

27. It will be observed that the learned Judges made a distinction which is clear from the above passage. They concluded as follows:

It was argued that the export sales having been effected outside the State, the State was incompetent to tax such sales under the Act. The transactions that are sought to be taxed are not the export sales but the purchases preceding the export sale made by the assessees within the State. As already stated, the Act and the Rules permit the levy of sales tax at the point of purchase of untanned hides and skins by licensed dealers who sell and export them to foreign buyers. To attract the liability to tax, it is not sufficient if there is an intention to export or a plan which contemplates exportation at the time when untanned hides and skins were purchased by a licensed dealer but there must be a sale which occasions the export of the goods outside the State.

28. The learned Judges relied on a decision of the Supreme Court in State of Madras v. Gurviah Naidu & Co., Ltd. [1955] 6 S.T.C. 717 The above passage clearly indicates that a purchase preceding an export sale is validly taxable under the provisions of the Madras General Sales Tax Act, i.e., Rule 4(2)(d) and Rule 16(2) which contained provision substantially similar to the provision in Section 6 read with item 6 of Schedule IV of the Andhra Pradesh General Sales Tax Act, so far as untanned hides and skins are concerned, when the hides and skins were bought by a dealer within the Andhra State and exported by him outside the Andhra State. In that case, the dealers were themselves purchasing within the Andhra State and were exporting them to their agents outside the Andhra State for being sold to others. In the present cases of writs of M. A. Khader, the articles were purchased by him through his branch within Andhra Pradesh State and sent to himself in Madras State for tanning and in W. P. No. 929 of 1961 the purchas ing agent purchased the untanned skins within the Andhra Pradesh State and sent them to his principal outside the Madras State. But this difference in facts as compared to the facts in Government of Andhra v. Nagendrappa [1956] 7 S.T.C. 568 is not material. The principle of that decision is applicable to this case and we find that it is not possible to hold that the sale occasioned movement of the goods from Andhra Pradesh State to Madras State or that they come under Section 3(a) of the Central Sales Tax Act. The first contention also fails.

29. In the result, we find that all the contentions actually urged before us are untenable. We dismiss each of the writ petitions with costs. Advocate's fee Rs. 50 in each writ petition.


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