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Nabi Oil Mills Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 485 of 1974
Judge
Reported in[1977]40STC118(AP)
AppellantNabi Oil Mills
RespondentCommercial Tax Officer and ors.
Appellant AdvocateS.R. Ashok, Adv.
Respondent AdvocateThe Government Pleader for Commercial Taxes
DispositionPetition allowed
Excerpt:
.....miller is liable to tax whether he purchased (sic) the entire oil or not. the remand order of the assistant commissioner of commercial taxes dated 22nd july, 1970, extracted above, clearly enjoins the commercial tax officer to enquire and determine what portion of the groundnut purchased by the assessee was sold to others and whether the last dealer in the state had paid the tax and what portion of it was crushed by the assessee. any determination by him, contrary to those directions would be clearly illegal. ..by the impugned order the respondent failed to carry out a legal duty imposed on him and such failure was destructive of a basic principle of justice, a writ of mandamus should issue ex debito justitiae to compel the respondent to carry out the directions given to him by the..........to tax.3. aggrieved by that order the petitioner preferred an appeal which was allowed by the assistant commissioner of commercial taxes by his order dated 22nd july, 1970. the assistant commissioner of commercial taxes after referring to the decision of this court in jowli sunkiah and co. v. commercial tax officer, nandyal [1968] 21 s.t.c. 300 and another decision of this court in m. madar khan and co. v. assistant commissioner (commercial taxes), anantatpur [1971] 27 s.t.c. 18, held that the petitioner herein 'decorticated groundnuts and sold groundnut seed to other millers. the purchasing millers who crushed seeds into oil are liable to pay tax. the commercial tax officer is requested to obtain the affidavits of all the purchasing millers and send the same for verification.....
Judgment:

Madhava Reddy, J.

1. The petitioner was assessed to tax on the turnover of the groundnut during the assessment year 1968-69 by the Commercial Tax Officer under his assessment order dated 28th October, 1969. Under entry 6 of the Third Schedule to the A. P. General Sales Tax Act (6 of 1957), 'groundnut' is exigible to tax as under:

When purchased by a miller other than a decorticating miller in the State at the point of purchase by such miller and in all other cases at the point of purchase by the last dealer who buys in the State.

2. The tax is three paise in a rupee. It is the case of the petitioner that he was not only a 'miller' but also a 'dealer' in groundnut and, therefore, such portion of the turnover of the groundnut which was sold by him to others was not exigible to tax. The Commercial Tax Officer, however, by his assessment order dated 28th October, 1969, assessed the entire turnover of groundnut representing the purchase of the groundnut by the petitioner to tax.

3. Aggrieved by that order the petitioner preferred an appeal which was allowed by the Assistant Commissioner of Commercial Taxes by his order dated 22nd July, 1970. The Assistant Commissioner of Commercial Taxes after referring to the decision of this court in Jowli Sunkiah and Co. v. Commercial Tax Officer, Nandyal [1968] 21 S.T.C. 300 and another decision of this court in M. Madar Khan and Co. v. Assistant Commissioner (Commercial Taxes), Anantatpur [1971] 27 S.T.C. 18, held that the petitioner herein 'decorticated groundnuts and sold groundnut seed to other millers. The purchasing millers who crushed seeds into oil are liable to pay tax. The Commercial Tax Officer is requested to obtain the affidavits of all the purchasing millers and send the same for verification whether tax has been assessed and paid by the purchasing millers. If the purchasing millers have paid tax, the Commercial Tax Officer may allow exemption on the sales effected to them. Otherwise, the appellant may be assessed to tax'.

4. The matter then came up before the Commercial Tax Officer, who by his order dated 16th September, 1972, held that 'in response to a notice issued inviting objections if any against the proposed assessment, the dealers in their letter dated 16th September, 1972, objected to the levy of tax on a turnover of Rs. 5,05,292.23 on the ground that they need not pay tax on this turnover as they are not the last buyers in this regard and the purchasers have issued certificates to the effect that they will pay tax on this and also requested to give relief as per the directions of the appellate orders'. The Commercial Tax Officer then proceeded to hold further that 'it may be a fact that they need not pay tax on this turnover on the date when the transactions took place. But, according to the latest several decisions, as manufacturers of groundnut oil, they are liable to pay tax as first purchasers. Hence, the objections raised are overruled and the assessment proposed is confirmed'. In that view of the matter he confirmed the proposed assessment.

5. Aggrieved by that order the petitioner carried the matter in appeal. The Assistant Commissioner of Commercial Taxes by his order dated 17th November, 1973, dismissed the appeal and upheld the assessment order in the following words : '...In Somanna and Sons v. State of A.P. [1972] 30 S.T.C. 281 (S.C.), the Supreme Court had clearly held that the purchasing by miller is liable to tax whether he purchased (sic) the entire oil or not. In Rafeeq Ahmed and Co. v. State of Andhra Pradesh [1969] 24 S.T.C. 430 also, the same view was taken with reference to the tax on the untanned hides and skins in the hands of a tanner by way of purchase'. It is these assessment proceedings that are challenged in this writ petition by the petitioner, inter alia, on the grounds : (i) that the Commercial Tax Officer has contravened the direction issued in the remand order of the Assistant Commissioner of Commercial Taxes dated 22nd July, 1970 and it was obligatory upon him to find out whether the petitioner's turnover of groundnut was intended for crushing in a mill or was also intended for sale and if any part of the turnover represented purchases for sale of the groundnut, that was not exigible to tax; (ii) that irrespective of the order of remand, inasmuch as the petitioner was both a miller and a dealer, only that portion of the turnover of groundnut which was actually crushed was exigible to tax and that which was intended for sale and was actually sold, was not liable to be taxed.

6. In my view, both these contentions have to be upheld. The remand order of the Assistant Commissioner of Commercial Taxes dated 22nd July, 1970, extracted above, clearly enjoins the Commercial Tax Officer to enquire and determine what portion of the groundnut purchased by the assessee was sold to others and whether the last dealer in the State had paid the tax and what portion of it was crushed by the assessee. After remand when the matter reached the Commercial Tax Officer he totally disregarded the directions given in the appellate order. Though he issued a notice inviting objections and though he noticed that the petitioner purchased the groundnut from ryots and sold a part of that stock within or outside the State and used only the remaining stock for manufacturing groundnut oil, he did not determine what portion of the turnover was sold to others in or outside the State and what portion of the turnover represents groundnut, which was crushed into oil by him. He, no doubt, observed that no further material was placed before him. But he did not advert to the account books and the several affidavits already filed before him. He did so evidently because he was under the impression that in view of the subsequent decisions to which he did not expressly refer to, the entire turnover was exigible to tax irrespective of whether he had purchased the groundnut with a view to crush it into groundnut oil in his mill or sell it to others. Whether or not that view is correct, I will advert to later. But, in that view, the Commercial Tax Officer making the assessment pursuant to a remand order was bound by the directions in the remand order. Any determination by him, contrary to those directions would be clearly illegal. He could not ignore the remand order.

7. In Sri Lakshmi Satyanarayana Castor Oil Mill v. Deputy Commissioner, Commercial Taxes, Nellore [I977] 39 S.T.C. 100 (Writ Petition No. 3999 of 1975 decided on 2nd September, 1976), where the order of the Assistant Commissioner passed in an appeal had become final and the Commercial Tax Officer proceeded to make an enquiry for refund of tax in accordance with the directions contained therein and proceedings were sought to be taken by the Deputy Commissioner to set aside the orders of refund, this court held that 'since the period of four years had expired at the time when the Deputy Commissioner proposed to initiate revision proceedings on 5th March, 1975, it is obvious that the order of the Assistant Commissioner passed on 4th November, 1969, had become final. The Commercial Tax Officer was bound to carry out the directions given to him by the Assistant Commissioner and, so long as the order of the Assistant Commissioner is not set aside, it cannot be said that there is any illegality or irregularity committed by the Commercial Tax Officer in passing the order of 30th June, 1972' (i.e., directing refund in accordance with the Assistant Commissioner's order).

8. In Bhopal Sugar Industries Ltd. v. Income-tax Officer [1960] 40 I.T.R. 618 (S.C.) where a subordinate tribunal refused to carry out the directions given to it by a superior tribunal in the exercise of its appellate powers, their Lordships observed that 'by that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice and is further more destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal...by the impugned order the respondent failed to carry out a legal duty imposed on him and such failure was destructive of a basic principle of justice, a writ of mandamus should issue ex debito justitiae to compel the respondent to carry out the directions given to him by the Income-tax Appellate Tribunal'. This pronouncement of the Supreme Court by itself is a sufficient ground to quash the orders of the Commercial Tax Officer dated 16th September, 1972 and that of the Assistant Commissioner dated 17th November, 1973.

9. Even the second ground urged by the petitioner merits acceptance. In Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. v. State of Andhra Pradesh [1971] 28 S.T.C. 590 (S.C.), the Supreme Court laid down that 'the event which attracts tax is the act of the miller purchasing groundnut and not his act of crushing the groundnut purchased or dealing with it in any other manner'. But at the same time it also observed that 'in none of the cases before us it was shown that any of the assessees had purchased groundnuts with a view to sell them. Hence we need not go into the question as to what would be the position in law where a miller purchases some groundnut for milling and the rest for sale'.

10. In B.G. Somanna and Sons v. State of A.P. [1972] 30 S.T.C. 281 (S.C.), dealing with the case of a miller, the Supreme Court left this question open observing that 'in the cases before us also we need not consider the position of a miller who purchases some groundnuts for milling and the rest for sale'. Hence if a particular assessee had purchased some groundnut for milling and kept some groundnut for resale whether the entire turnover of such miller who happens to be a dealer also is liable to tax or not, was not finally decided by the Supreme Court. However, a Bench of this Court had occasion to consider this question in Ravoof and Co. v. State of A.P. [1972] 30 S.T.C. 428. In that case, the assessee was a firm which had a tannery at Vizianagaram and it was purchasing untanned hides and skins. It was the case of the assessee that part of such untanned hides and skins were purchased for tanning and the rest for sale. Repelling the contention of the Government Pleader appearing for the State that since the tanner had purchased untanned hides and skins, the entire turnover is exigible to tax, irrespective of whether he used them for tanning or for resale, the Bench held that 'nowhere in the Act is there any provision prohibiting independent transactions of that type. If there is, it will be in restraint of free trade guaranteed under Article 19 of the Constitution and there is no other illegality attached to having independent dealings in purchase and sale of raw hides and skins. A firm can make purchases of raw hides and skins for the purpose of resale in several centres and have a tannery at another centre, where small quantities of the purchases are tanned for purpose of export. Therefore, it cannot be said that all the purchases of raw hides and skins by the firm were for tanning, however disproportionate the purchases may be in relation to the needs of the tannery'. The assessee there contended that the purchase of raw hides and skins, for which exemption is claimed, were only for resale and not meant for tanning; that separate accounts have been maintained for that business separately, that while the firm at Srikakulam had been registered, the tannery at Vizianagaram had also been registered separately, that, therefore, these two should not be mixed up though there may be a common assessment, that the turnover relating to the purchases and sales of raw hides and skins should be exempted as he was not the last dealer in the State exigible to tax under item 9 of Schedule III of the Act. Just as raw hides and skins groundnut is exigible to tax in the hands of the miller, if he was the first purchaser and the last purchaser if he was a dealer. In that view the Bench directed that 'the case should be examined with reference to the registration of the firm, the accounts and other circumstances available and if it is found that he had a separate and distinct business with regard to the purchases and sales of raw hides and skins he can only be considered as a dealer in so far as that turnover is concerned and not a tanner and that turnover should be exempted from tax, if he is not the last dealer in the State'. This judgment applies on all fours to the facts of this case. The Assistant Commissioner in his order dated 22nd July, 1970, had directed an enquiry as to what part of the turnover of groundnut relates to groundnut sold and what part of the turnover of groundnut represents groundnut crushed for manufacturing oil.

11. In view of the Bench decision and also in view of the remand order which has become final and was binding on the Commercial Tax Officer, the order of the Commercial Tax Officer dated 16th September, 1972 and that of the Assistant Commissioner dated 17th November, 1973, cannot be sustained and are accordingly quashed.

12. The Commercial Tax Officer is directed to take up proceedings in accordance with the remand order of the Assistant Commissioner dated 22nd July, 1970 and after giving an opportunity to the petitioner to produce such records as he deems fit, proceed to assess the tax liability of the petitioner in the light of the observations made above.

13. This writ petition is accordingly allowed with costs. Advocate's fee Rs. 100.


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