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Commissioner of Sales Tax Vs. Bhagwandas Rikhiram - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Civil Case No. 134 of 1971
Judge
Reported in1972MPLJ129; [1972]29STC541(MP)
AppellantCommissioner of Sales Tax
RespondentBhagwandas Rikhiram
Appellant Advocate M.V. Tamaskar, Deputy Government Adv.
Respondent Advocate R.K. Tankha and ; B.L. Nema, Advs.
Cases ReferredState of Mysore v. Yaddalam Lakshmi
Excerpt:
.....of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 36,348.19 the assessee was taxed at 7 per cent, under the central sales tax act, as he failed to produce 'c' forms from the registered dealers from whom the bardana was purchased. ). in that case, on the interpretation of sections 6, 8 and 9 of the central sales tax act (as they stood before their amendment in 1969) the supreme court had come to the conclusion that no central sales tax was payable on the sales by an..........worth rs. 36,348 sold in the course of inter-state trade is not liable to sales tax under the central sales tax act on the ground that it was tax paid under the m. p. general sales tax act, 1958?2. the assessee is a dealer in grains. for the purposes of his business he purchases gunny bags (bardana) and sells them along with grain. during the assessment period the assessee had purchased bardana worth rs. 86,463.31 on which state tax was already paid. in the course of the business he sold along with the grain bardana worth rs. 36,348.19 in the course of inter-state transactions. on the sales of bardana worth rs. 36,348.19 the assessee was taxed at 7 per cent, under the central sales tax act, as he failed to produce 'c' forms from the registered dealers from whom the bardana was.....
Judgment:

R.J. Bhave, J.

1. The Board of Revenue has referred the following question at the instance of the Commissioner of Sales Tax, Madhya Pradesh :

Whether the assessee's bardana worth Rs. 36,348 sold in the course of inter-State trade is not liable to sales tax under the Central Sales Tax Act on the ground that it was tax paid under the M. P. General Sales Tax Act, 1958?

2. The assessee is a dealer in grains. For the purposes of his business he purchases gunny bags (bardana) and sells them along with grain. During the assessment period the assessee had purchased bardana worth Rs. 86,463.31 on which State tax was already paid. In the course of the business he sold along with the grain bardana worth Rs. 36,348.19 in the course of inter-State transactions. On the sales of bardana worth Rs. 36,348.19 the assessee was taxed at 7 per cent, under the Central Sales Tax Act, as he failed to produce 'C' forms from the registered dealers from whom the bardana was purchased. The plea of the assessee was that as the bardana was already subjected to State tax at the first point of sale, it could not have been assessed on the second sale in the State and that being the position he could not be made liable to pay sales tax on the sale of bardana even when the sale was in the course of inter-State transactions. In support of his submission the assessee had relied on the decision of the Supreme Court in State of Mysore v. Yaddalam Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C. 231 (S.C.). In that case, on the interpretation of Sections 6, 8 and 9 of the Central Sales Tax Act (as they stood before their amendment in 1969) the Supreme Court had come to the conclusion that no Central sales tax was payable on the sales by an assessee if, for any reason, under the State Act the sales of those goods were exempt from the State tax ; the failure of the assessee to produce 'C' forms in relation to such sales was, therefore, immaterial.

3. The assessing authorities, however, distinguished the Supreme Court decision and imposed the Central sales tax at 7 per cent., as no 'C' forms were produced by the assessee. When the assessee appealed to the Board of Revenue, it came to the conclusion that the Supreme Court case was fully attracted in the case and upheld the contention of the assessee.

4. The Commissioner of Sales Tax, therefore, filed an application under Section 44 of the M. P. General Sales Tax Act asking the Board to make a reference to this court. Before any order could be passed by the Board on that application, Sections 6, 8 and 9 of the Central Sales Tax Act were amended by the Central Sales Tax (Amendment) Ordinance, 1969. This Ordinance was subsequenty incorporated in the Central Sales Tax (Amendment) Act, 1969. Retrospective effect was given to the amendments. Because of this amendment the Board thought that an important question of law arose out of its decision and referred the question indicated above.

5. By the abovesaid amendment, Sub-section (1A) was added after Sub-section (1) of Section 6 of the Central Sales Tax Act. That sub-section reads:

(1A) 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 tade 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.

This amendment of Section 6 was designed to nullify the effect of the decision of the Supreme Court in State of Mysore v. Yaddalam Lakshminara-simhiah Setty and Sons [1965] 16 S.T.C. 231 (S.C.). The combined effect of Section 6(1A) and Section 8(2A) was that all sales, which were exempt from sales tax except under Sections 10 and 12 of the State Act, were subject to Central sales tax and were taxable at the rate prescribed under Section 8(2) of the Act notwithstanding the fact, that if the sales would have been effected in the State no tax would have been levied.

6. After the amendment of the Central Sales Tax Act, the matter came for consideration before their Lordships of the Supreme Court in State of Kerala v. Joseph and Co. [1970] 25 S.T.C. 483 (S.C.) Their Lordships held:

The effect of the Central Sales Tax (Amendment) Ordinance, 1969, is to supersede the judgment of the Supreme Court in the case of Yaddalam Lakshminarasimhiah Setty1. It is now made clear that even if no tax was leviable under the general sales tax law of the State in. respect of intra-State transactions of sale, tax will be leviable under the Central Sales Tax Act, 1956, on sale of goods effected by a dealer in the course of inter-State trade according to the sales tax law of the appropriate State. By Section 9(2) of the Central Sales Tax Act, 1956, as amended by the Ordinance of 1969, the procedural law prescribed by the general sales tax law of the State applies in the matter of assessment, reassessment, collection and enforcement and payment under the Central Sales Tax Act, but the liability to pay is determined by the provisions of the Central Sales Tax Act. The effect of the amendment of Section 2(j) of the Central Sales Tax Act, 1956, by the Ordinance with retrospective effect from the date on which the principal Act was enacted, is that the turnover for the purpose of the Central Sales Tax Act, 1956, has to be determined in accordance with the provisions of that Act and the Rules made thereunder.

7. This court had also occasion to consider the effect of the amendment of the Central Sales, Tax Act. A Division Bench of this court in The Commissioner of Sales Tax, M. P. v. Bhopal Dal and Flour Mills, Bhopal Misc. Civil Case No. 8 of 1968 decided on 11th September, 1970; printed below held that unless there is exemption from tax generally under the State law the turnover in the course of inter-State trade and commerce will be liable to tax and that would be so notwithstanding the fact that under the State law such turnover may be exempt from tax subject to certain specified conditions or in specified circumstances; and that except the sales covered by Sections 10 and 12 of the State Act, all other sales would be subject to Central sales tax if they are effected in the course of inter-State trade or commerce.

8. The two pronouncements, referred to above, are binding on us and as such the answer to the question is plain enough. Following these two decisions, we answer the question to the effect that the bardana sales worth Rs. 36,348 effected in the course of inter-State trade are liable to sales tax under the Central Sales Tax Act even though no tax would have been recoverable under the State Act if the sales would have been effected within the State itself.

9. Shri Tankha, learned counsel for the assessee, however, urged that the assessee had not produced 'C' form certificates because the law as interpreted by the Supreme Court in State of Mysore v. Yaddalam Lakshmi-narasimhiah Setty and Sons [1965] 16 S.T.C. 231 (S.C.), dispensed with the necessity of production of the certificates. Under the circumstances, he urged, this court should issue a directive to the Board of Revenue to give the assessee an opportunity to produce the certificates. This prayer cannot be granted. In exercise of the advisory jurisdiction this court can only answer the question referred for our decision. The assessee may move the Board with the abovesaid prayer and the Board may, if it has the power to do so, allow the prayer. But no direction can be issued by this court.

10. In the circumstances of the case, we direct the parties to bear their own costs.


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