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K. Narayana Kumandan Sons and Co. Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case Number Original Jurisdiction Case No. 1168 of 1974
Judge
Reported in[1975]36STC374(Orissa)
AppellantK. Narayana Kumandan Sons and Co.
RespondentSales Tax Officer and ors.
Appellant Advocate B.K. Mohanti, Adv.
Respondent Advocate The Standing Counsel (C.T.)
DispositionApplication dismissed
Cases Referred and Tagoob Mohammad v. Commercial Tax Officer
Excerpt:
.....and collected in respect of the sale or purchase of such declared goods under section 5(1) of the orissa sales tax act, 1947 (orissa act 14 of 1947), subject to the following conditions, namely: sub-section (5) of section 8 provides :notwithstanding anything contained in this section, the state government may, if it is satisfied that it is necessary so to do in the public interest, by notification in the official gazette, and subject to such conditions as may be specified therein, direct,-(a) that no tax under this act shall be payable by any dealer having his place of business in the state in respect of the sales by him, in the course of inter-state trade or commerce, from any such place of business of any such goods or classes of goods as may be specified in the notification, or that..........act, the transactions therein are subject to tax at one point only. under the provisions of the orissa sales tax act (hereafter referred as the 'state act') oil-seeds are liable to tax at the purchase point. according to the petitioner, if purchase tax has been paid under the state act and the said commodity becomes liable to tax under the central act, the purchase tax becomes refundable. under section 8(5) of the central act, the state government issued the following notification :no. 43637 cta-200/66-f.-in exercise of the powers conferred by sub-section (5) of section 8 of the central sales tax act, 1956 (74 of 1956), the state government having been satisfied that it is necessary to do so in the public interest hereby direct that in respect of all declared goods sold in the course.....
Judgment:

R.N. Misra, J.

1. The petitioner, a firm registered under the Orissa Sales Tax Act as a dealer, carries on business at Rayagada within the district of Koraput including purchase and sale of oil-seeds. Oil-seeds are a declared commodity under Section 14 of the Central Sales Tax Act of 1956 (hereinafter referred as the 'Central Act') and, therefore, under the provisions of Section 15 of that Act, the transactions therein are subject to tax at one point only. Under the provisions of the Orissa Sales Tax Act (hereafter referred as the 'State Act') oil-seeds are liable to tax at the purchase point. According to the petitioner, if purchase tax has been paid under the State Act and the said commodity becomes liable to tax under the Central Act, the purchase tax becomes refundable. Under Section 8(5) of the Central Act, the State Government issued the following notification :

No. 43637 CTA-200/66-F.-In exercise of the powers conferred by Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (74 of 1956), the State Government having been satisfied that it is necessary to do so in the public interest hereby direct that in respect of all declared goods sold in the course of inter-State trade or commerce, no tax under the said Act shall be payable by any dealer, having his place of business in the State in respect of the sale by him of such goods where tax has been levied and collected in respect of the sale or purchase of such declared goods under Section 5(1) of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947), subject to the following conditions, namely:-

(i) the burden of proving that the tax under Section 5(1) of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947), has been levied and collected in respect of any such declared goods shall lie on the dealer, and

(ii) the dealer shall not claim refund under Clause (b) of Section 15 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), read with Section 14-B of the Orissa Sales Tax Act of the tax levied and collected under Section 5(1) of the Orissa Sales Tax Act, 1947, from the dealer or such tax has not been refunded to him.

In view of the notification, the petitioner was not assessed to Central sales tax in respect of its dealings in oil-seeds. This court in the case of Orissa Hides Trading Co. v. Sales Tax Officer [1975] 35 S.T.C. 232 came to hold that the notification issued by the State Government ran counter to the scheme of the Central Act. Thereafter the Sales Tax Officer completed the assessment for the year 1973-74 and, while doing so, ignoring the notification in question assessed the transactions in oil-seeds to Central sales tax. He also issued a notice under Rule 10(2) of the Central Sales Tax (Orissa) Rules to reopen the assessments in respect of the years 1971-72 and 1972-73. The petitioner has asked for a writ of certiorari to quash the assessment and also challenges the notice issued under Rule 10(2) of the Central Sales Tax (Orissa) Rules.

2. Mr. Mohanti for the petitioner takes the stand that the decision referred to above requires reconsideration. He has also tried to distinguish the decision on the facts of the present case.

3. Before examining the submissions of Mr. Mohanti, we think it appropriate to analyse the relevant provisions of the Central Act. Section 6 of the Central Act is the charging section, while Section 8 of that Act prescribes the rates of tax. Sub-section (5) of Section 8 provides :

Notwithstanding anything contained in this section, the State Government may, if it is satisfied that it is necessary so to do in the public interest, by notification in the official Gazette, and subject to such conditions as may be specified therein, direct,-

(a) that no tax under this Act shall be payable by any dealer having his place of business in the State in respect of the sales by him, in the course of inter-State trade or commerce, from any such place of business of any such goods or classes of goods as may be specified in the notification, or that the tax on such sales shall be calculated at such lower rates than those specified in Sub-section (1) or Sub-section (2) as may be mentioned in the notification;

(b) that in respect of all sales of goods or sales of such classes of goods as may be specified in the notification, which are made in the course of inter-State trade or commerce, by any dealer having his place of business in the State or by any class of such dealers as may be specified in the notification to any person or to such class of persons as may be specified in the notification, no tax under this Act shall be payable or the tax on such sales shall be calculated at such lower rates than those specified in Sub-section (1) or Sub-section (2), as may be mentioned in the notification.

Section 6 has been made subject to the provisions of Section 8 and Sub-section (5) of Section 8 provides that its provisions shall take effect notwithstanding anything contained in Sub-sections (1) to (4) of that section. Section 14 declares various goods to be of special importance in inter-State trade or commerce and Section 15, as it stood before the 1972 amendment and as far as relevant, provided :

Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely :

(a) ...

(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State.

4. In Orissa Hides Trading Company's case [1975] 35 S.T.C. 232, the Sales Tax Officer having not given effect to the notification in question, the dealer came before this court to challenge the order of assessment. The validity of the notification was disputed. Dealing with the contention at some length, the position was summarized thus :

The net effect of the notification, however, is that in respect of a dealer's transactions in the course of inter-State trade or commerce there would be no tax under the Central Act provided the two contingencies indicated in the notification are satisfied. The fact which requires proof is that tax has already been imposed and collected under Section 5(1) of the State Act and the same has not been refunded to him or claim in that behalf is not to be made under the provisions of Section 15(b) of the Central Act. This fact has to be established by the assessee. The mandate in Section 15(b) of the Central Act is that the tax under the State Act is to be refunded once the same goods are sold in the course of inter-State trade or commerce and are assessed to tax under the Central Act: Khader & Co. v. State of Madras [1966] 17 S.T.C. 396. Judged from that angle, the notification embodies a converse scheme, i. e., where the State tax is collected and the dealer shall not claim refund of that tax under Section 15(b) of the Central Act, the Central sales tax shall not be payable.

(The underlining is by us.)

A statutory notification [in exercise of power under Section 8(5) of the Central Act] cannot be permitted to run counter to Section 15(b) of the Central Act. That view has been taken in Rafeeq Ahmed & Co. v. State of Andhra Pradesh [1969] 24 S.T.C. 430 and we respectfully agree with the same. The tax to be refunded under Section 15(b) of the Central Act is the tax levied under the State Act. The notification, in our view, is a misconceived one, though it was intended to avoid the hardship of the claim of refund....

Mr. Mohanti concedes that the decision is directly against him. But he argues that the question on the earlier occasion did not require the validity of the notification to be tested and, therefore, the judgment on this point cannot be taken to be strictly of precedent value. We fail to appreciate this argument. As already indicated, the assessee in the earlier case wanted the notification to be acted upon as the Sales Tax Officer had not followed it. Before this court, the State Government also took the stand that the notification was not enforceable in view of the direct provision in Section 15(b) of the Central Act. In the said premises, the validity of the notification was examined. The question was very much in issue and there has been a final adjudication. We do not agree with Mr. Mohanti that the question is open to examination afresh. Even if it were, we do not think, a different view is tenable on the point. Similar view has been expressed by the Madras High Court in M. A. Khader & Co. v. Deputy Commercial Tax Officer [1970] 25 S.T.C. 104 and Tagoob Mohammad v. Commercial Tax Officer [1971] 28 S.T.C. 110 decided by the Andhra Pradesh High Court.

5. The next submission of Mr. Mohanti is that the Central Sales Tax (Amendment) Act of 1972 has validated the notification and, therefore, at least for the assessments already completed, reopening whereof is now contemplated, the notification would be applicable. Section 15(1) of the amending Act provides:

Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, any assessment, reassessment, levy or collection of any tax made or purporting to have been made, any action or thing taken or done in relation to such assessment, reassessment, levy or collection under the provisions of the principal Act before the commencement of this section shall be deemed to be as valid and effective as if such assessment, reassessment, levy or collection or action or thing had been made, taken or done under the principal Act as amended by Clause (a) of Section 11 and Clause (a) of Section 12 of this Act, and accordingly-

(a) all acts, proceedings or things done or action taken by the State Government or by any other officer of the State Government or by any other authority in connection with the assessment, reassessment, levy or collection of such tax shall, for all purposes, be deemed to be and to have always been done or taken in accordance with law....

The amending Act came into force with effect from 1st April, 1973. The assessments for the years 1971-72 and 1972-73 were completed on 12th July, 1973, and in respect of these two years notice for reopening the assessments has been given. Mr. Mohanti's contention regarding validation of the notification is with reference to these two assessments. Section 15(1)(a) of the amending Act validates acts, proceedings and things done or action taken in connection with assessment, reassessment, levy or collection of tax. Section 15(1)(a) of the validating Act does not intend to have any prospective effect, that is under its cloak, action taken after 1st April, 1973, would not be valid unless it fits in with the scheme of the Central Act.

The assessments completed after 1st April, 1973, thus would not have any protection of the validating Act and the petitioner is not entitled to derive any support from the said Act for the contention that the assessments for the years 1971-72 and 1972-73 by adopting the notification having already been made cannot be reopened. Both the contentions of the petitioner, therefore, fail.

6. The writ application is accordingly dismissed. We make no direction for costs.

B.K. Ray, J.

7. I agree.


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