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P.V. Mohammed Vs. Collector of Palghat - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 766 and 767 of 1958
Judge
Reported inAIR1960Ker138; [1959]10STC422(Ker)
ActsConstitution of India - Articles 226 and 286
AppellantP.V. Mohammed
RespondentCollector of Palghat
Appellant Advocate T.C. Raghavan, Adv.
Respondent Advocate K.V. Surianarayana Iyer, Adv. General
DispositionPetition dismissed
Cases ReferredState of Bombay v. United Motors
Excerpt:
- - these proved unsuccessful......filed.the petitioner's case is that in view of the decision of the supreme court relating to inter-state sales and a press note issued by the state of madras on 9th january 1954 the amounts could not be collected from him. he therefore prayed for writs of prohibition or other appropriate writ, direction or order in respect of the proceedings for realisation of the sales-tax in each case. the respondent, the collector of palghat, has filed a coun-ter-affidavit stating that the assessments were in respect of the periods prior to the constitution of india and that the decisions of the supreme court and the press note referred to by the petitioner have no application to these cases. it was also con-tended that the orders for realisation of the tax having become final, no writ should be.....
Judgment:
ORDER

T.K. Joseph, J.

1. The petitioner in these Original petitions prays for the issue of a writ of prohibition or other appropriate writ, direction or order restraining the respondent, the Collector of Palghat, from enforcing or executing the orders in Calendar Cases Nos. 145 and 146 of 1951 on the file of the Additional First Class Magistrate, Palghat, and collecting the sales-tax involved in the two cases. The petitioner was a dealer in untanned hides and skins, was carrying on business at Mankara, formerly in the State of Madras and now in the State of Kerala. He was assessed to sales-tax in respect of his dealings for the period 1947-48 and 1948-49 and was directed to pay a sum of Rs. 1,334-12-0 in respect of the former year and Rs. 1,766-2-6 in respect of the latter year.

As the tax was not paid he was prosecuted under section 15(b) of the Madras General Sales Tax Act 1939, before the court of the Additional First Class Magistrate. Palghat. C. C. No. 145 of 1951 was the case in respect of the assessment for the year 1948-49 and C. C. No. 146 of 1951 in respect of the assessment for the year 1947-48. Both the cases ended in conviction and the petitioner was ordered to pay a sum of Rs. 100/- in each case as fine, in additon to the tax as per the two assessment orders. These decisions were confirmed in appeal and revision. Thereafter the respondent filed execution petitions in the court of the Su-bordinate Judge Ottapalam, for realisation of the tax as per the above decisions. The petitioner contended before that court that by virtue of the decision of the Supreme Court in State of Born-hay v. United Motors (India) Ltd. (AIR 1953 S C 252), the sales-tax was not leviable, as the sales were in the nature of inter-State transactions.

His case was that the sales were to parties in Bangalore. The Subordinate Judge held that he could not So behind the orders sought to be executed and that the petitioner, if so advised, could move the proper authorities for amendment or cancellation of the order. Two months' time was allowed to the petitioner for this purpose. The petitioner moved the Sub-Divisional Magistrate, the Collector of Malabar, and the Board of Revenue for modification or cancellation of the orders, in the light of the decision of the Supreme Court. These proved unsuccessful. As the Collector did not pursue the execution proceedings the petitioner kept quiet. However, in 1958 the Collector again presented two execution petitions before the Subordinate Judge. Ottapalam, for realisation of the amounts and on receipt of notice of the same, these petitions have been filed.

The petitioner's case is that in view of the decision of the Supreme Court relating to inter-State sales and a Press Note issued by the State of Madras on 9th January 1954 the amounts could not be collected from him. He therefore prayed for writs of prohibition or other appropriate writ, direction or order in respect of the proceedings for realisation of the sales-tax in each case. The respondent, the Collector of Palghat, has filed a coun-ter-affidavit stating that the assessments were in respect of the periods prior to the Constitution of India and that the decisions of the Supreme Court and the Press Note referred to by the petitioner have no application to these cases. It was also con-tended that the orders for realisation of the tax having become final, no writ should be issued.

2. There is no merit in these petitions. The tax was levied in respect of the years 1947-48 and 1948-49. The bar on collection of sales-tax on inter-State sales was introduced for the first time by Article 286 of the Constitution of India, This Article cannot affect the levy or collection of tax in respect of the periods before the date on which the Constitution came into force. It was perhaps open to the petitioner to urge at the time of the assessments that the sales were effected outside the State of Madras and that the same were not therefore liable to sales-tax in Madras. That stage Is long past, and the orders of assessment have become final. It is not possible to exercise the powers under Article 226 to examine the correctness of the orders of assessment in respect of pre-Constitution period. The Press Note issued by the Government of Madras on 9th January 1954 has also no bearing on the question. The relevant portion of that Press Note is extracted below:--

'The question how far the provisions of Article 286(1) and (2) of the Constitution have affected the Schemes for levy of sales-tax in the States has been under consideration of both the State and Central Governments. In its judgment in the State of Bombay v. United Motors (India) Ltd. (AIR 1953 SC 252) the Supreme Court held that in respect of inter-State transactions only the State where the goods are delivered and consumed would he competent to levy sales-tax. This judgment has brought certain categories of inter-State transactions within the taxing powers of State Governments, and the Government of Madras have decided to levy sales-tax on such transactions with retrospective effect from 1st April, 1953 the date on which the Supreme Court delivered its judgment and to forego the levy prior to that date.....'

It is clear from the passage extracted above that it relates solely to cases of sales-tax in respect of transactions after the date of the Constitution. In these circumstances it must be held that the petitioner is not entitled to any relief in these proceedings.

3. It follows that the original petitions must be dismissed. O. Ps. Nos. 766 and 767 of 1958 are therefore dismissed with costs including counsel's fee of Rs. 100/- in each case.


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