1. These two petitions are under Article 226, Constitution of India for quashing the orders of assessment under the provisions of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947). These two petitions were heard1 together and will be governed by this Judgment of ours.
2. O.J.C. 234/54: -- The petitioner in this case is a registered dealer within the meaning ofthe said Act and has obtained a certificate of Registration. The central place of business of lie petitioner in oil, oil-seeds, turmeric, hemp, jute, etc., is at Berhampur within the district of Ganjam. The assessment in question refers to the quarters ending on the last days of March, june and September, 1953.
The petitioner being a registered dealer purchased articles mentioned in the certificate of Registration from another registered dealer with the undertaking that the articles were to be resold n Orissa. On this position, therefore, both the petitioner and the selling registered dealer were exempt from paying sales-tax under the provisions of Section (5) (2) (a) (ii) of the Act.
The present petitioner, however, broke the undertaking and sold the goods outside the State of Orissa. The Department, therefore, included the sale-prices of such goods which the petitioner sold outside Orissa having broken the undertaking within the taxable turnover of the petitioner. In doing so the Department relied upon the Proviso to Section 5 (2) (a) (ii) of the Act, it would be pertinent to quote the relevant portions of S, 5 of the Act.
'5. (1) The tax payable by a dealer under this Act shall be levied at the rate of one quarterof an anna in the rupee on his taxable turnover:
* * * * (2) In this Act the expression 'taxable turnover means that part of a dealer's gross turnover during any period which remains after deducting therefrom:
(a) his turnover during that period on (the clause that we are pertinently concerned with is)
(ii) sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration as being intended for resale by him in Orissa or for use by him in the execution of any contract in Orissa, and on sales to a registered dealer of containers or other materials for the packing of such goods:
Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover.'
3. Mr. H. Mohapatra, appearing on behalf of the petitioner being confronted with a previous decision of this Court against him where the identical question arose, now relies upon the provisions of Article 286, Clause (1), Sub-clause (a) of the Constitution. The portions of Article 288 relevant for our purpose are as follows:
'Article 286(1). No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place -
(a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India.
* * * * (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce: * * * *
Mr. Mohapatra strongly relies upon a recent decision of the Supreme Court reported in --'Mohanlal Hargovind Das v. State of M.P.', 1955 S.C. 786 ( (S) AIR V 42) (A) coming from Madhya Pradesh, and contends that the previous decision of this Court has got to be rerised in view ofthe above decisions of the Supreme Court on the subject. There the petitioner who was a registered dealer under the C.P. and Berar Sales Tax Act imported tobacco from the State of Bombay in large quantities from the Bombay Suppliers who were themselves registered dealers under the C.P. and Berar Sales Tax Act.
The Bombay Suppliers processed tobacco in their godowns situated within the State of Bombay and supplied the finished tobacco to the petitioner in Madhya Pradesh, The petitioner imported this finished tobacco into Madhya Pradesh from these suppliers who were carrying on business in the State of Bombay and there was of necessity as a result of these transactions the movement of the goods across the border.
The petitioner who is a registered dealer in that goods had given an undertaking under the similar provisions of the C.P. and Berar Sales . Tax Act that he had purchased the said goods for use as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and further that he had sold those articles outside the State of Madhya Pradesh. Their Lordships held that the Madhya Pradesh authorities could not tax such transactions.
On a careful perusal of the decision of their Lordships we are of the view that the decision has no bearing for the purpose of deciding the 'present case inasmuch as their Lordships of the Supreme Court exempted the liability of such transactions from being taxed by the Madhya Pradesh authorities only on the ground that the, transactions were in the course of inter-State trade or commerce as contemplated under Article 286(2).
After analysing the facts and circumstances of the case, their Lordships observed:
'As a result of the transactions entered into by the petitioners with these suppliers the finished tobacco which was supplied to the petitioners moved from the State of Bombay to the State of Madhya Pradesh and these transactions were, therefore, in the course of inter-State trade or commerce.'
Their Lordships further observed:
'In the case before us there was no such provision made by Parliament and the transactions in question were all after 31-3-1951 with the result that the ban imposed by Article 286(2) was in operation and if the transaction took place in the course of inter-State trade or commerce not only were Sri Chhaganlal Ugrachand Nipani and Shri Maniklal Chunanlal Baroda exempt from the liability to pay the tax on these transactions but the petitioners also were similarly exempt. No liability, therefore, could be imposed either for Sales Tax or for purchase tax within the terms of the Act on these transactions which as above stated took place in the course of inter-State trade or commerce.'
On the finding, therefore, that the transactions were in the nature of inter-State trade or commerce, the case came directly under Article 286(2), and in the absence of any enactment by the Parliament the State Legislature could not impose any tax on sale or purchase of such transactions. While dealing with the breach of the undertaking, their Lordships of the Supreme court observed as follows:
'It was, however, urged that the petitioners had made declarations at the time of making the purchases of this finished tobacco that they had purchased the said goods for use as raw materials in the manufacture of goods for sale for actual delivery in Madhya Pradesh for the purpose ofconsumption, In that State and that by virtue of the provisions of Section 4 (6), of the Act they were liable to pay the purchase tax on the purchase price of goods which had been utilised for any other purpose.
* * * * 'We are clearly of opinion that the Stateof Madhya Pradesh is restrained from imposingany tax on the transactions of purchase or salewhich take place in the course of inter-State tradeor commerce and! no question of liability of thepetitioner by virtue of such declarations survives . . . .'
Such a decision is obviously on account of the reason that in that case the transactions being of inter-State character, there was no basis for taxation and the declaration cannot serve as such basis.
4. In the present case, however, Mr. Mohapatra has fairly never contended that these transactions are in the nature of inter-State trade or commerce inasmuch as there are absolutely no materials to come to such a conclusion. There is no mention even in the petition filed before us that these transactions were of such nature.
In our view, therefore, the decision of the Supreme Court is of no assistance. The petitioner, therefore, has now to fall back upon Article 286(1) of the Constitution relying upon the position that the sales which are being taxed in the present case being outside the State of Orissa are exempt from taxation by the State authorities, and are beyond the reach of the State law.
This contention is fully covered and negatived by the previous decision of this Court in the case of -- 'Ahmed Mohinuddln v. Sales Tax Officer, Ganjam', O.J.C. No. 253 of 1954 (Orissa) (B) (Unfeported). In that case, on a careful analysis of the relevant provisions of the section, My Lord the Chief Justice came to the conclusion that it was not the second sale by the petitioner outside the State of Orissa which was the basis for taxation in the present case but the first sale in which the present petitioner was the purchaser from another registered! dealer.
It appears clear that on account of this undertaking given by the present petitioner that the articles purchased by him as a registered dealer would be sold within the State of Orissa, the seller or the registered dealer is exempt from, paying sales tax and as a matter of that the present petitioner also was so exempt.
But this exemption, or (more accurately) this deduction was a conditional one and 'it is so provided in Sub-clause (ii) of Clause (a) of Sub-section (2) of Section 5 itself that if the condition is broken, that is to say, that the registered dealer-purchaser uses the goods for purposes other than those specified in his certificate of registration, the prices of goods so utilised shall be Included in the taxable turnover of the purchasing registered! dealer.
I am of the same opinion that there is no constitutional bar for making such a provision in the Act itself. Indeed, the scheme of the Act is such as to ordinarily levy tax on the selling dealer; but in case of this nature where conditional deductions are allowed on the undertaking in the purchasing dealer's certificate of registration, the Legislature is completely within its Jurisdiction to make a provision' that on the breach of such an undertaking the purchasing dealer is liable to pay the tax on the basis of the sale which took place with the aforesaid undertaking. There is no question that the first series of sales were within the State of Orissa. Being in agreement with the view expressed by their Lord- ships in -- O.J.G. 253 of 1954 (Orissa) (B), I hold that the assessment in question is in accordance with law and does not call for any interference.
5. Mr. Mohapatra, further relies upon' a decision of the Nagpur High Court in the case of -- 'Babulal v. D. P. Dube', 1955-6 S.T.C. 255 (C) in support of his contention that the sates tax' being a piece of legislation for the purpose of levying tax on the seller, the authorities are not competent to realise the tax from the purchaser. The palpable extinction between the C.P. and Berar Sales Tax Act and that of ours is that the proviso to Sub-clause (ii) of Clause (a) of Sub-section (2) of Section 5 was not there in the C.P. Act itself.
The Government in their rule-making power provided that for breach of any condition in the certificate of registration, the tax levied may be realised from the purchaser. Their Lordships concluded that even if it could be said that it was open to the Legislature to make the tax recoverable from the purchaser as a penalty for evasion and breach of the declaration made by him, it was necessary to enact the law in the Act and not in the rules.
In our Act it is a part of the statute itself and there being no legal or constitutional tar on the part of the State Legislature to put in this proviso, the departmental authorities are entitled to realise the tax from the purchaser under the said proviso.
6. In conclusion, therefore, the petition fails and is dismissed with costs. Hearing fee is assessed at Rs. 100/- (rupees one hundred).
7. O.J.C. 241/54: Here the assessment is for the quarters ending 30-6-1951 to 31-3-1952, that is, for four quarters. The petitioner who is a registered dealer in turmeric, chillies, jute, etc., on submitting his returns, for the aforesaid quarters, claimed deduction under the provisions of Section 5 (2) (a) (ii), Orissa Sales Tax Act, 1947.
The departmental authorities allowed deduction excepting in respect of the transactions which constitute a breach of the undertaking given by the present petitioner, at the time of purchase from another registered dealer that the articles were intended for resale in Orissa: The petitioner, however, had sold the articles outside Orissa on account of which the Sales Tax authorities have Included the sale-price of these transactions within the taxable turnover of the petitioner relying upon the proviso. The same identical point arises in the present case as we have discussed above.
8. Mr. M.S. Mohanty appearing on behalf of the petitioner has, however, argued an additional point relying upon the provisions of Article 286(2) which run as follows:
'Except in so far as Parliament may by law otherwise provide, no law of a State shall Impose, or authorise the imposition of a tax on the sale or purchase, of any goods where such sale or purchase takes place in the course of inter-State trade or commerce.'
It is manifest, in order that the transactions may be brought within the aforesaid Clause (2), they must be in the course of inter-State trade or commerce. In the present case, the materials are conspicuously insufficient for the purpose of coming to a conclusion that the transactions are in the course of inter-State trade or commerce.
The only fact that is transparent is that the articles were sold outside Orissa. There is no indication of the position that in fact at the time when the petitioner purchased these articles he had already contracted to sell these articles outside the State of Orissa. On the contrary the unassailable position is that the purchase of these articles by the petitioner was on the basis of an undertaking that they are to be resold within the State of Orissa.
The words in the course of appearing in Article 286(1)(b) have been explained in the judgment of Patanjali Shastri C.J. in the case of --'State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory', 1953 S.C. 333 (AIR V 40) (D), in the following terms:
'The word 'course' etymologically denotes movement from one point to another, and the expression 'in the course of not only implies a period of time during which the movement is in progreas but postulates also a connected relation. * * * * 'A sale in the course of export out of the country shall similarly be understood in the context of Clause CD (b) as meaning a sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities. The time factor alone is, not determinative'.
The clause, used by his Lordship in the previous case reported in -- 'State of Travancore Cochin v. Bombay Co., Ltd.', 1952 S.C. 366 (AIR V 39) (E),: 'A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of goods to a common carrier for transport out of the country by land or sea', was explained in this decision as:
'The phrase 'integrated' activities' was used in the previous decision to denote that 'such a sale' (i.e., sale which occasions the export)' cannot be dissociated from the export without which it cannot 'be effectuated and the sale and the resultant export form parts of a single transaction.-It is in that sense that the two activities -- the sale and! the export were said to be integrated,'
9. In this case, however, we do not think it necessary to further discuss the exact meaning of the words 'in the course of inter-State trade or commerce' as there is a signal lack of materials to come to the conclusion that the transactions in question were In the course of inter-State trade or commerce.
10. This petition therefore, is accordingly dismissed with costs. Hearing-fee is assessed at Rs. 100/- (Rupees one hundred)..
11. I agree