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Manji Bhimji Parmar Vs. the Assistant Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 36 of 1968
Judge
Reported in1970MPLJ697; [1971]27STC321(MP)
AppellantManji Bhimji Parmar
RespondentThe Assistant Sales Tax Officer and ors.
Appellant AdvocateS.C. Chaturvedi, Adv.
Respondent AdvocateK.K. Dube, Government Adv.
DispositionPetition allowed
Cases ReferredHindustan Construction Co. Ltd. v. J.P. Namdeo
Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 171 of 1967 decided on the 9th december, 1969. 5. we accordingly allow the writ petition and set aside the assessment as well as the demand made on the basis of that assessment from the petitioner......are expressly delegated to him. by the entry mentioned above he has been delegated the power to assess dealers who have a turnover of less than rs. 4 lakhs. they must have a turnover before they can be amenable to the jurisdiction of the assistant sales tax officer. a dealer who has no turnover at all cannot be said to be a dealer having a turnover of less than rs. 4 lakhs.3. this conclusion is also reached if we look at the matter from another point of view. this power is given to the officer occupying the lowest rung in the hierarchy of officers authorized to make assessment and his jurisdiction has been confined to a turnover of less than rs. 4 lakhs. if the interpretation contended for by the learned counsel for the state is accepted, the result would be that in the case of.....
Judgment:
ORDER

Bishambhar Dayal, C.J.

1. This is a petition by Messrs Manji Bhimji, railway contractors. Under a contract with the railway they constructed two bridges in Madhya Pradesh. Subsequently they were served with a notice on 27th July, 1966, as to why they should not be assessed to purchase tax under Section 7 of the M.P. General Sales Tax Act. The notice had been given by the Assistant Sales Tax Officer, Rewa. After hearing the petitioner the same officer assessed purchase tax on a turnover of Rs. 5,10,000 after allowing a deduction of Rs. 40,000. The total tax assessed was Rs. 26,200. This petition has been filed against that demand and the point stressed by the learned counsel for the applicant is that the Assistant Sales Tax Officer had no jurisdiction to assess purchase tax. The power to assess tax under the Act is given to the Commissioner (section 30) and he has authority to delegate the same to his subordinates. Under Rule 68 of the M.P. General Sales Tax Rules the Commissioner is authorized to delegate certain powers of assessment according to the table mentioned in the rule. Reliance is placed by the learned counsel for the State on entry No. 7(c) in that table. In the second column of entry No. 7 the sections under which the powers have been delegated are mentioned as Sections 18, 19 and 22. The power which has been delegated is mentioned in column 3, the relevant part of which is as follows:

To make an assessment or reassessment of tax or penalty, or to fix a date for payment, or to extend the date for payment of such tax or penalty, or to allow the payment of tax or penalty by instalments and to exercise all other powers under Sections 18, 19 and 22:

* * *(c) In respect of a dealer, other than a dealer having no place of business in Madhya Pradesh, whose gross turnover of the year preceding the period of assessment does not exceed Rs. 4 lakhs.

The contention of the learned counsel for the applicant is that the power to assess delegated to the Assistant Sales Tax Officer mentioned in column 3 is to assess those dealers who have a taxable turnover which does not exceed Rs. 4 lakhs, and that it does not authorize the Assistant Sales Tax Officer to assess something which is not a turnover at all in the hands of a dealer. The definition of 'turnover' is given in Section 2(t) of the Act as follows:

'turnover' used in relation to any period means the aggregate of the amount of sale prices received and receivable by a dealer in respect of any sale or supply or distribution of goods made during that period, whether or not the whole or any portion of such turnover is liable to tax but after deducting the amount, if any, refunded by the dealer to a purchaser, in respect of any goods purchased and returned by the purchaser within the prescribed period:* * *

Turnover therefore refers only to the price which a dealer receives on sale of goods or which is receivable by him on such sale. A person who does not do any transaction of sale within the State but who merely utilizes his goods in the construction of a bridge certainly has no turnover in that sense. It has not been said in the case of this assessee that it had a turnover and that it was selling any goods within the State and was, therefore, being assessed for purchase tax.

2. Learned counsel appearing for the State contended that so long as a dealer does not have a turnover of more than Rs. 4 lakhs, he is amenable to the jurisdiction of the Assistant Sales Tax Officer even though he has no turnover at all. In that case also he would have a turnover of less than Rs. 4 lakhs and would be amenable to the jurisdiction of the Assistant Sales Tax Officer. We are unable to agree with the learned counsel. The power of assessment is mainly given to the Commissioner of Sales Tax and the Assistant Sales Tax Officer can exercise only those powers which are expressly delegated to him. By the entry mentioned above he has been delegated the power to assess dealers who have a turnover of less than Rs. 4 lakhs. They must have a turnover before they can be amenable to the jurisdiction of the Assistant Sales Tax Officer. A dealer who has no turnover at all cannot be said to be a dealer having a turnover of less than Rs. 4 lakhs.

3. This conclusion is also reached if we look at the matter from another point of view. This power is given to the officer occupying the lowest rung in the hierarchy of officers authorized to make assessment and his jurisdiction has been confined to a turnover of less than Rs. 4 lakhs. If the interpretation contended for by the learned counsel for the State is accepted, the result would be that in the case of assessment of purchase tax, he would have no pecuniary limit to which he can assess. Not only that officers of a higher rank covered by entry 7(b) who are to deal with dealers having a turnover of more than Rs. 4 lakhs but less than Rs. 30 lakhs will have no jurisdiction at all to assess any purchase tax, and the Commissioner with whom the residuary power rests and who can assess every dealer other than those mentioned in Clauses (b) and (c) of entry 7 would also be confined to exercise jurisdiction only in respect of dealers who have a turnover of more than Rs. 30 lakhs. We are unable to read these entries in that light. We think the intention of Rule 68 is to give power to assess turnover in cases of certain classes of dealers to Sales Tax Officers under Clause (b) and to Assistant Sales Tax Officers under Clause (c) and that all the residuary powers of assessment of purchase tax and in case of dealers of other classes not covered by Clauses (b) and (c) will remain undelegated with the Commissioner himself.

4. In this view of the matter we think that the Assistant Sales Tax Officer had no jurisdiction to assess purchase tax in the present case. The same view was taken by a Division Bench of this court, of which one of us (B. Dayal, C.J.) was a member, in Hindustan Construction Co. Ltd. v. J.P. Namdeo, Assistant Sales Tax Officer, Rewa, and Ors. Miscellaneous Petition No. 171 of 1967 decided on the 9th December, 1969.

5. We accordingly allow the writ petition and set aside the assessment as well as the demand made on the basis of that assessment from the petitioner. The petitioner will get his costs. Counsel's fee is fixed at Rs. 100. The outstanding amount of the security deposit shall be refunded to the petitioner.


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