1. This is a petition under Article 226 of the Constitution against the order of the Sales Tax Officer, Puri, directing the petitioner to pay sales tax in respect of the sales of cocoanuts valued at Rs. 3,291/12/- to certain firms in Raipur Madhya Pradesh) and Manbhum (Bihar). The petitioner is a Co-operative Society of cocoanut growers carrying on its business at Sakhigopal in the district of Puri. The admitted facts are as follows :
2. The petitioner collected cocoanuts from various persons in Orissa and sold them to several dealers in Raipur and Manbhum. The purchasing firms placed orders with the petitioner and also paid some money in advance. On receipt of such orders, the petitioner indented for railway wagons, loaded them with cocoanuts and booked them by rail to Raipur and Manbhum and sent the Railway Receipts to the purchasing firms either through bank or through V.P.P. The purchasing firms obtained custody of the Railway Receipts on payment of the full price inclusive of transport charges and then took delivery of the cocoanuts at the places of destination. There was no evidence before the Sales Tax authority, adduced by either side, to show that the cocoanuts were actually consumed in Raipur or in Manbhum. The petitioner, however, claimed exemption from sales tax in respect of these transactions relying on Article 286(1)(a) of the Constitution. The Sales Tax Officer, however, disallowed its claim saying that it was the petitioner's duty to prove that the goods were actually consumed in Raipur or in Manbhum and in the absence of any reliable evidence to that effect Clause (1)(a) of Article 286 read with the Explanation to that clause would not apply and that the transactions of sale were liable to taxation in Orissa by virtue of the general power of taxation conferred by the Orissa Sales Tax Act, 1947, as adapted after the Constitution.
After the admission of this petition under Article 226 further time was given to the petitioner to prosecute its appeal before the Assistant Collector of Sales Tax who is the immediate appellate authority of the Sales Tax Officer. The appeal was, however, dismissed on practically the same grounds as those that weighed with the Sales Tax Officer, namely, that the burden of proof of actual con-sumption in Manbhum or Raipur, as the case may be, lay on the petitioner. Thereupon, Mr. Mohanty pressed for the hearing of this petition under Article 226.
3. On behalf of the State of Orissa the Advocate-General contended that in cases of this type where the Orissa Sales Tax Act itself provided, an equally convenient alternative remedy for the aggrieved party to apply for revision to the superior Sales Tax authority and to request that a case may be stated for the decision of the High Court (see Sections 23 and 24) it was not appropriate to invoke the powers of this Court under Article 226. On this larger question we wish to reserve our opinion because it appears that by the order of this Court dated 29-8-52, while admitting this petition, the petitioner was led to think that after the disposal of its appeal by the Assistant Collector of Sales Tax this petition would be put up for final hearing. The petitioner can therefore reason ably contend that it was misled by this order into thinking that after the failure of its appeal before the Sales Tax appellate authority it could press for the hearing of this petition instead of applying to the superior Sales Tax authority for revision under Section 23 of the Sales Tax Act or requesting for the statement of a case to the High Court under Section 24.
4. Coming to the merits of this case the main question for consideration is whether on the aforesaid admitted facts the State of Orissa have no power to tax these sales. Whether the State of Bihar or the State of Madhya Pradesh, as the case may be, have the power to tax these sales is a question with which we are not primarily concerned. On behalf of the State of Orissa it was urged that the power of the State to tax a transaction of sale in Orissa is derived from Entry 54 of List II of Schedule 7 read with Article 246 of the Constitution. It was however conceded that if Article 286(1)(a) were to apply, the power of the Government to tax these sales would cease to exist; but it was urged that as Article 286(1)(a) was in the nature of an exception it was the duty of the petitioner to show that these sales came within the scope of that Article.
5. The question of burden of proof is however academic in this case. Articles 246, 286(1)(a) and Entry 54 of List II of Sch. 7 have been construed recently by the Supreme Court in a decision reported in -- 'State of Bombay v. United Motors Ltd.', AIR 1953 SC 252 (A). The admitted facts of that case were as follows. Certain firms in Bombay were carrying on the business of buying motor cars, selling them to various persons and delivering the cars to the purchasers outside the State of Bombay. The question was whether the Government of Bombay could levy sales tax in respect of those transactions of sale in which delivery of the cars took place outside the state of Bombay. The Supreme Court answered this question in the negative as will be clear from the following observations :
'On the construction we have placed upon the Explanation, sales or purchases effected in Bombay in respect of goods in Bombay but delivered for consumption outside Bombay are not taxable in Bombay.'
These observations would apply with full force in the present case in view of the admitted position that though the transaction of sale took place in Orissa, the cocoanuts were actually delivered outside Orissa. The question as to the stage at which the property in the goods passed from the seller to the buyer is wholly immaterial. Admittedly the goods were not consumed in Orissa nor were they delivered in Orissa for the purpose of consumption. (6) In the aforesaid judgment of the Supreme Court their Lordshins have construed the provisions of Clause (1)(a) of Article 286 along with the Explanation to that clause and pointed out that the primary object of inserting those provisions in the Constitution was to give a simple definition of the situs of sale so as to avoid the uncertainties which prevailed before the commencement of the Constitution. Where a transaction of sale involves inter-State elements, it is very difficult to say where the place of sale is because the concept of sale itself involves several ingredients, such as agreement to sell, transfer of ownership, delivery of goods etc. Their Lordships observed that the Constitution makers, with a view to simplify the law on the subject for the purpose of sales tax and prevent multiple taxation, denned 'inside sale' in the Explanation thereby also defining what was 'outside sale', that is to say, sale outside a State; the determining factor in each case being the place where there was actual delivery of goods for the purpose of consumption which was an easily ascertainable test. After full discussion of the scope of the Explanation they observed : 'We are, therefore, of opinion that Article 286(1)(a) read with the Explanation prohibits taxation of sales or purchases involving inter-State elements by all States except the State in which the goods are delivered for the purpose of consumption therein in the wider sense explained above.' Thus the present constitutional position seems to be that where any transaction of sale involves inter-State elements only that State where the goods are actually delivered for the purpose of consumption would be entitled to tax that transaction. No other States will have that power. If, therefore, the State of Orissa wish to tax a transaction of sale involving inter-State elements they will have to show that the delivery also took place in Orissa for the purpose of consumption. Oa the admitted position their power of taxing this transaction does not exist. It is therefore unnecessary to consider whether this transaction is liable to taxation either in Manbhum or in Raipur. I would therefore allow the petition and set aside the order of the sales Tax authorities directing the petitioner to pay sales tax in respect of the aforesaid sales. The petitioner is entitled to costs. Hearing fee is assessed at five gold mohurs.
7. I agree.