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Sri Damma Pedda Yellappa Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberSpecial Appeal Nos. 1, 2 and 3 of 1959
Judge
Reported in[1960]11STC691(AP)
AppellantSri Damma Pedda Yellappa
RespondentThe State of Andhra Pradesh
Appellant AdvocateD.V. Sastry and ;R.V. Subba Rao, Advs.
Respondent AdvocateThe Principal Government Pleader
Excerpt:
- - the assessment orders made by him referred to the estimate of cash sales on best judgment......is very widely sold. he did not register himself as a 'dealer' within the meaning of the madras general sales tax act.3. the special assistant commercial tax officer (evasions), nandyal, surprised his business-cum-residence at nandyal on 12th june, 1957. he did not produce any accounts of his sales. however, the officer recovered bundles of v.p.p. money order coupons filed date-war with an abstract showing the amounts received on each day.4. laterly, the special commercial tax officer (evasions), anantapur, visited the business-cum-residence of the appellant on 24th july, 1957 and saw grinding of medicines going on and 30 pestles in use.5. the special commercial tax officer (evasions), anantapur, totalled up the amounts for the years in question, as per the coupons seized by the.....
Judgment:

Narasimham, J.

1. The appellant is the same in these three appeals preferred under Section 23(1) of the Andhra Pradesh General Sales Tax Act against the orders of the Board of Revenue restoring the orders of assessment passed by the Special Commercial Tax Officer (Evasions), Anantapur, for the years 1954-55, 1955-56 and 1956-57.

2. The appellant is described by the authorities as a dealer and manufacturer of Ayurvedic medicines at Nandyal. He prepares a specific for venereal diseases known as 'Satha Jambira Rasayanam', which is very widely sold. He did not register himself as a 'dealer' within the meaning of the Madras General Sales Tax Act.

3. The Special Assistant Commercial Tax Officer (Evasions), Nandyal, surprised his business-cum-residence at Nandyal on 12th June, 1957. He did not produce any accounts of his sales. However, the officer recovered bundles of V.P.P. money order coupons filed date-war with an abstract showing the amounts received on each day.

4. Laterly, the Special Commercial Tax Officer (Evasions), Anantapur, visited the business-cum-residence of the appellant on 24th July, 1957 and saw grinding of medicines going on and 30 pestles in use.

5. The Special Commercial Tax Officer (Evasions), Anantapur, totalled up the amounts for the years in question, as per the coupons seized by the Special Assistant Commercial Tax Officer (Evasions), taking them as the sales turnover for the days of the year covered by the said coupons.

6. To the said amount, two additions were made. Firstly, proportionate amounts worked out for the remaining days of the years in question on the basis of the total sales for each year covered by the V.P.P. money order coupons. A further addition of Rs. 10,000 was made for each year on account of cash sales estimated at Rs. 30 to Rs. 35 a day.

7. Accordingly, notices were issued by the Special Commercial Tax Officer (Evasions), to the appellant to file objections.

8. The Special Commercial Tax Officer rejected the pleas of the appellant that he was not a dealer but an Ayurvedic practitioner prescribing the specific to his patients consulting him for treatment either in person or by post and further that he had not realised a sum exceeding Rs. 15,000 per year in gross and passed the assesment orders.

9. The appellant carried these assessment orders in appeal to the Deputy Commissioner of Commercial Taxes, Anantapur. The said appellate authority cancelled the assessment orders on the ground that the appellant came within the exemption accorded in G.0. Ms. No. 815, dated 7th April, 1948, as a medical practitioner running a dispensary and dispensing medicines only to his patients, either attending his dispensary in person or contacting him by post and that further his income had not come up to the taxable limits.

10. The Board of Revenue perused the orders of the Deputy Commissioner and considered them as improper and irregular and so, in exercise of the powers of revision under Section 20(1) set aside the orders of the Deputy Commissioner and restored the assessment orders of the Special Commercial Tax Officer after notice to the appellant. That is how the appellant has preferred these special appeals.

11. At the outset, an objection was taken against the assessment orders dated 31st August, 1957, urging that they were not saved by Section 41 of the Andhra Pradesh General Sales Tax Act which has come into force on 15th June, 1957. The argument addressed to us is that as the assessments related to the years 1954-55, 1955-56 and 1956-57 when the Madras General Sales Tax Act, 1939, was in force and the assessments were not made prior to the repeal of the said enactment by the Andhra Pradesh General Sales Tax Act, the assessments are not valid. We are referred to Chakoo Bhai v. The State of Orissa and Ors. [1956] 7 S.T.C. 36, where the Division Bench expressed their view that a liability cannot be said to be already incurred until that liability has been ascertained and an assessment made. We may read Section 41 of the Andhra Pradesh General Sales Tax Act in this context in so far as it has relevancy :-

Section 41 (1): 'The Madras General Sales Tax Act, 1939...are hereby repealed:

Provided that such repeal shall not affect the previous operation of the said Acts or section or any right, title, obligation or liability already acquired, accrued or incurred thereunder and subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit) in the exercise of any power conferred by or under the said Acts or section shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken; and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.

12. The proviso is clear in terms that the repeal shall not affect the previous operation of the Madras General Sales Tax Act, 1939. The proviso further provides that any order in the exercise of any power conferred by the Madras General Sales Tax Act, 1939, shall be deemed to have been done or action taken in the exercise of the powers conferred by the Andhra Pradesh General Sales Tax Act. This brings out the full effect of the savings section that there is a continuity in the law relating to the assessment of the sales tax payable and the levy thereof. The orders of assessment dated 31st August, 1957, would be valid orders under the Andhra Pradesh General Sales Tax Act and cannot be objected to in regard to their validity.

13. The next point raised before us is that the appellant is a registered medical practitioner at Nandyal prescribing his specific to patients consulting him in person or corresponding with him by post and that he is not a dealer within the meaning of the Madras General Sales Tax Act.

14. It may be noticed that the Special Assistant Commercial Tax Officer (Evasions), Nandyal, who made a surprise inspection of his business-cum-residence premises on 12th June, 1957, seized the V.P.P. money order coupons arranged date-war with an abstract of total amounts received each day and that further he had noticed an advertisement leaflet of the specific in terms set out thus :

Sold at Re. 1 per 2 tolas-postage and packing extra.

15. The appellant did not produce any registers of his so-called patients and prescriptions. A registered medical practitioner might normally maintain such registers in the ordinary course of his practice. The absence of such registers is significant in the context of his plea that he was dispensing his specific to his patients only and to no others.

16. Further, the advertisement leaflet in terms noticed supra speaks for itself that the specific that he prepared was available for sale, apparently without restriction.

17. In view of the said facts and circumstances, we are not convinced that he gave this specific to his patients only. It is the admitted case of the appellant that he prepares the specific 'Satha Jambira Rasa-yanam' himself. From the pile of V.P.P. money order coupons filed date-war, it is clear that the specific was sold to various customers against their orders. The advertisement leaflet shows also the sale of the said specific without any apparent restriction.

18. It may be that he may have been registered as an Ayurvedic medical practitioner; but, with this clinching material before us, we find ourselves unable to accept the contention that the appellant is a medical practitioner dispensing his specific to his patients.

19. The term 'dealer' is defined under Section 2(b) of the Madras General Sales Tax Act, 1939 (Act IX of 1939). The definition is set out in so far as it is relevant:

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 other valuable consideration,....

20. The term 'goods' is defined under Section 2(c) as meaning all kinds of movable property other than actionable claims, stocks and shares and securities, etc. The definition is widely worded so that the specific of the appellant 'Satha Jambira Rasayanam' would fall within the purview of the said definition.

21. The term 'business' is not defined specifically in the Act. But, we may look into the definition of the term under Section 2(4) of the Income-tax Act thus:

'Business' includes any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture.

22. It is seen that the term is more extensive in its meaning than trade. The words 'carrying on business' necessarily conveys the idea of continuity in transactions. In fact, this necessary idea as to continuity has been emphasized by the Privy Council in Commissioner of Income-tax, Bengal v. Shaw Wallace and Company (1932) 59 I.A. 206

23. The ordinary dictionary meaning of the term 'business' is trade, dealings, commercial activity, etc.

24. Taking into account the said concepts of the term 'business', the appellant, who manufactures 'Satha Jambira Rasayanam' as a specific for venereal diseases, advertises it for sale and receives orders by post continually, would definitely attract the definition of a 'dealer' within the meaning of the Act. The fact that he is a registered medical practitioner by itself is insufficient to exclude him from the ambit of the definition. We find, therefore, that the appellant is a 'dealer' within the meaning of the Act.

25. The next point urged before us is that the further additions to the totals of sales by post are merely speculative and are wanting in reasonable basis.

26. We see that the assessing officer estimated the sales by post for the days not covered by the V.P.P. money order coupons excluding the holidays. He purported to do so for computing proportionate sales, assuming that there were sales on every day not covered by the V.P.P. money order coupons, which was not a holiday.

27. We are not convinced that this is a reasonable basis as long as it is not suggested that certain coupons were suppressed. The pile of receipts were found date-war with abstracts. We may take it that these were all the sales made by post for the year and further additions thereto cannot be made on any reasonable basis. We accordingly delete the additional amounts added on a basis suggesting suppressions.

28. There now remains the question of cash sales. The assessing officer estimated the cash sales at Rs. 30 to Rs. 35 a day and fixed the aggregate realisations at Rs. 10,000 for each year. The appellant's case is that his cash sales would not exceed Rs. 5 a day.

29. The Special Commercial Tax Officer, Anantapur, referred to local enquiries in respect of cash sales. The assessment orders made by him referred to the estimate of cash sales on best judgment. We have called upon the learned Government Pleader to satisfy us with regard to the reasonableness of this addition. He has not placed before us any details regarding the enquiry made in this regard. We are not able to sustain this addition of Rs. 10,000 for each year without any material before us as to the enquiry referred to by the Assessing Authority. We see no other course except to remand this matter to the Assessing Authority for a decision as to the cash sales for each year after due enquiry giving notice to the appellant.

30. The case of exemption accepted by the Deputy Commissioner of Commercial Taxes remains now to be scrutinized. The G.O. Ms. No. 815 dated 7th April, 1948, referred to may be set out for convenient reference :

The Government have examined the representations made by the Madura and the Indian Medical Association, Madras, in regard to the assessment of private medical practitioners to sales tax. There are three categories of medical practitioners, namely :-

(i) those having consulting rooms only;

(ii) those owning dispensaries and dispensing medicines only to their patients; and

(iii) those having large dispensaries and dispensing medicines not only to their patients but also the patients of other practitioners and also sell patent medicines to the public.

31. The Government pass the following orders in respect of each of the categories mentioned above :

Category (i): These are not liable to sales tax as they give pres criptions only and do not dispense medicines.

Category (ii): Though these practitioners are legally liable to sales tax, the Government direct that they may be exempted from the payment of the tax.

Category (iii): These should be treated as any other chemists and druggists and should be assessed to sales tax.

2. The Board is requested to issue necessary instructions in the matter to the Commercial Tax Officers.

32. The Deputy Commissioner, Commercial Taxes, expressed the view that the appellant would earn the exemption as falling within category (ii) set out supra.

33. For the application of the said G.O. the person claiming exemption should be a medical practitioner owning a dispensary and dispensing medicines only to his patients. From the facts we have discussed in the foregoing part of our judgment relating to the contention whether the appellant is a dealer within the meaning of the Act, it is apparent to us that the appellant would not fit in with this description. So, the question of earning any exemption does not arise.

34. In the result, we confirm the assessments to the extent indicated in this judgment and we remand the matter for an enquiry with regard to cash sales and for the issue of revised orders of assessment accordingly. We propose no order as to costs.


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