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Commissioner of Sales Tax Vs. Nand Kishore Gauri Shanker - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. Nos. 25, 26 and 27 of 1971
Judge
Reported in[1974]33STC117(All)
AppellantCommissioner of Sales Tax
RespondentNand Kishore Gauri Shanker
Appellant AdvocateStanding Counsel
Respondent AdvocateR.K. Gulati, Adv.
Excerpt:
- - he made purchases during the relevant years of goods which were liable to tax under section 3-d(1) of the act as well as of goods which were not taxable under that section. the contention of the department is that turnover under sub-section (3) of section 3-d means the turnover determined after aggregating the turnover of purchases of both the taxable as well as non-taxable goods......not notified under section 3-d(l) of the u.p. sales tax act can be added in the purchases of the goods notified under section 3-d(1) for the purpose of determining whether the assessee's turnover during the year was above the taxable limit of rs. 12,000, as provided under section 3-d(3) of the u.p. sales tax act2. the assessee is a dealer within the meaning of the u.p. sales tax act. he made purchases during the relevant years of goods which were liable to tax under section 3-d(1) of the act as well as of goods which were not taxable under that section. the turnover of purchases of taxable goods was less than rs. 12,000, but if aggregated with the turnover of purchases of non-taxable goods, it exceeded rs. 12,000. the additional judge (revisions), sales tax, took the view that the.....
Judgment:

Hari Swarup, J.

1. Similar questions have been referred in these three references under Section 11(3) of the U.P. Sales Tax Act made at the instance of the Commissioner of Sales Tax. The question of law referred to us for opinion is in the following terms:

Whether, under the circumstances of the case, the purchases made by the assessee with respect to the goods not notified under Section 3-D(l) of the U.P. Sales Tax Act can be added in the purchases of the goods notified under Section 3-D(1) for the purpose of determining whether the assessee's turnover during the year was above the taxable limit of Rs. 12,000, as provided under Section 3-D(3) of the U.P. Sales Tax Act

2. The assessee is a dealer within the meaning of the U.P. Sales Tax Act. He made purchases during the relevant years of goods which were liable to tax under Section 3-D(1) of the Act as well as of goods which were not taxable under that section. The turnover of purchases of taxable goods was less than Rs. 12,000, but if aggregated with the turnover of purchases of non-taxable goods, it exceeded Rs. 12,000. The Additional Judge (Revisions), Sales Tax, took the view that the turnover of purchases of non-taxable goods was not liable to be added to the turnover of taxable purchases for purposes of determining if the turnover was entitled to exemption granted by Sub-section (3) of Section 3-D of the U.P. Sales Tax Act. The contention of the department is that turnover under Sub-section (3) of Section 3-D means the turnover determined after aggregating the turnover of purchases of both the taxable as well as non-taxable goods. The plea of the assessee is otherwise.

3. Section 3-D was for the first time introduced in 1958 by the U.P. Sales Tax (Amendment) Act (19 of 1958). The relevant portion of the section introduced in 1958 was as follows:

Section 3-D: Levy of purchase tax. -- (1) There shall be levied for each such assessment year a tax on the turnover of purchases of every dealer in respect of such goods or classes of goods and at such rates, not exceeding four naye paise per rupee, as may from time to time be notified by the State Government in the official Gazette. On the issue of such notification, no sales tax under this Act shall be levied on the turnover of the goods so notified:

Provided that no dealer shall, except as provided in Sub-section (2), be liable to pay tax under this section if his turnover of purchases during the assessment year in respect of such goods is less than Rs. 30,000 or such larger amount as may be prescribed in that behalf...'

4. By the same Act by which Section 3-D was introduced, an explanation was added in Section 2(i), which defines the term 'turnover', and another Section 2(ii) was added to define 'turnover of purchases'. Section 2(i) as it existed at that time read as follows:

'turnover' means the aggregate of the proceeds of sale by a dealer: Provided that the proceeds of the sale by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, or poultry or dairy products from fowls or animals kept by him shall be excluded from his turnover....

5. By Act 19 of 1958 the following explanation was added:

Subject to the provisions of Sections 3-D and 3-E, the word 'turnover' shall, in respect of a dealer in goods notified under Sub-section (1) of Section 3-D, be deemed to include 'turnover of purchases' also.

6. Simultaneously, Section 2(ii) was introduced, and it defines 'turnover of purchases' as:

'turnover of purchases' means the aggregate of the amounts of purchase price paid or payable by a dealer in respect of purchase of goods made by or through him after deducting the amount, if any, refunded to the dealer by the seller in respect of any goods returned to such seller within such period as may be prescribed.

7. The effect of the introduction of the explanation in Section 2(i) was to include the turnover of purchases in respect of the notified goods in the definition of 'turnover'.

8. Subsequently, amendments were made in the definition of turnover. In 1964 'turnover' was defined as:

'turnover' means the aggregate amount for which goods are supplied or distributed by way of sale or are sold, or the aggregate amount for which goods are bought, whichever is greater, by a dealer either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration....

9. Section 3-D continued in the same form till it was recast by Act. No. 22 of 1964. This shows that the change in the definition of 'turnover' was not to have any effect on the proviso to Section 3-D, and the exemption limit was to be calculated by aggregating the turnovers of purchases of notified goods only.

10. Sub-sections (1) and (3) of Section 3-D, which are relevant for our purpose, were in 1964 framed in the following terms:

11. Section 3-D(1): 'Except as provided in Sub-section (2), there shall be levied and paid, for each assessment year or part thereof, a tax on the turnover, to be determined in such manner as may be prescribed, of first purchases made by a dealer or through a dealer, acting as a purchasing agent in respect of such goods or class of goods, and at such rates, not exceeding two paise per rupee in the case of foodgrains, including cereals and pulses, and five paise per rupee in the case of other goods and with effect from such date, as may, from time to time, be notified by the State Government in this behalf.

12. (3) No dealer shall be liable to pay a tax under this section if his turnover during the assessment year is less than Rs. 12,000 or such larger amount as may be notified by the State Government in that behalf for purposes of liability for payment of tax in relation to any goods or class of goods notified under Sub-section (1).'

13. The question that arises is whether by recasting Sub-sections 3-D(l) and 3-D(3), the Legislature intended to change the law regarding levy and collection of purchase tax. Examining the two sections we do not find that any particular change has been made in the law so far as it concerns the fixing of exemption limit regarding the liability to pay the purchase tax. Previously, if in respect of the notified goods the turnover of purchases in any assessment year was less than Rs. 30,000, no purchase tax was payable. To us it appears that this limit of Rs. 30,000 has now been reduced to Rs. 12,000. We do not think that the intention of the Legislature was to alter the basis for determining this limit. The intention of the proviso to Section 3-D is to exempt those small dealers whose turnover of notified goods was less than Rs. 12,000. The term 'turnover' in Sub-section (3) has been used in the same sense in which it has been used in Sub-section (1). It refers to the aggregate of the turnover of purchases of goods in respect of which notification has been issued by the State Government under Sub section (1) of Section 3-D. The turnover of purchases of goods which are not so notified will not, therefore, be liable to be added to the turnover of purchases of the notified goods for purposes of determining the exemption of turnover under Sub-section (3) of Section 3-D.

14. Learned standing counsel brought to our notice a judgment of this Court in S.T.R. No. 273 of 1971 -- Commissioner, Sales Tax, U.P., Lucknow v. Sita Ram Ayodhya Prasad -- in which a Bench of this Court held that if a dealer's turnover of foodgrains was below the limit fixed for the purpose by a notification issued by the State Government under Section 3-D(l), no purchase tax will be payable thereon even though he may have purchased other notified goods and aggregate of all such purchases exceeded the limit fixed by the notification. We need not express any opinion on this matter as the learned counsel for the assessee has not placed reliance on this judgment and has stated that his contention was not that the sales tax department committed any error in adding up the purchases of all the notified commodities for which different limits may have been fixed under Section 3-D(3). The question which was decided in S.T.R. No. 273 of 1971 does not arise in the present case. Here the question is confined to the right of the department to add the turnover of notified goods with that of goods not so notified for purposes of payment of purchase tax under Section 3-D(3) of the Act.

15. For the reasons given above, we answer the question referred to us in the negative and in favour of the assessee. As the assessee in the three connected references is the same and all the references have been heard together, we direct that the assessee will get a consolidated set of costs in all the three references, which we assess at Rs. 150.


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