Skip to content


P.V. Brothers Starch Industrials and ors. Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 237, 271, 812, 886, 997, 1041 and 1062 of 1975
Judge
Reported in[1977]39STC397(Ker)
AppellantP.V. Brothers Starch Industrials and ors.
RespondentThe State of Kerala and ors.
Appellant Advocate P.K. Shamsuddin,; K.A. Abdul Salam,; M. Hyder Ali Khan
Respondent AdvocateThe Government Pleader
DispositionPetition dismissed
Cases ReferredKhyerbari Tea Co. v. State of Assam A.I.R.
Excerpt:
- - 3. it is a well-settled principle of taxation law that 'the state can pick and choose districts, objects, persons, methods and rates for taxation, if it does so reasonably' see khyerbari tea co. the learned counsel for the petitioners referred me to section 5(3) of the general sales tax act, 1963 and section 8(4) of the central sales tax act, 1956, the former provision prescribing the method and manner for claiming lower rate of tax and the latter provision prescribing the manner for claiming exemption from section 8(1) of the central sales tax act, 1956 and submitted that no like provisions are contained in the act or the rules for claiming the benefit of the proviso to entry no. i am of the view that this submission is well-founded......liable to tax under section 5 of the principal act. however, a dealer, whose turnover of the purchase of tapioca is less than rs. 35,000 and who sells such tapioca for domestic consumption and for use as food material, is exempted from tax under the act. the petitioners contend that inclusion of tapioca in the first schedule is a piece of colourable legislation, that the same is arbitrary and that it is not saved by article 304 of the constitution.2. the submission on the first point is that under section 8(2a) of the central sales tax act, 1956, also tapioca became taxable at 2 per cent. explaining this point, it is further submitted that the real object of the inclusion of tapioca in the first schedule is to prevent export of tapioca from the state. according to the petitioners.....
Judgment:

George Vadakkel, J.

1. Tapioca was included in the First Schedule to the Kerala General Sales Tax Act, 1963, by the impugned legislation, the Kerala General Sales Tax (Third Amendment) Act, 1974, thereby making it a taxable commodity under the principal Act, point of levy being the last purchase in the State by a dealer liable to tax under Section 5 of the principal Act. However, a dealer, whose turnover of the purchase of tapioca is less than Rs. 35,000 and who sells such tapioca for domestic consumption and for use as food material, is exempted from tax under the Act. The petitioners contend that inclusion of tapioca in the First Schedule is a piece of colourable legislation, that the same is arbitrary and that it is not saved by Article 304 of the Constitution.

2. The submission on the first point is that under Section 8(2A) of the Central Sales Tax Act, 1956, also tapioca became taxable at 2 per cent. Explaining this point, it is further submitted that the real object of the inclusion of tapioca in the First Schedule is to prevent export of tapioca from the State. According to the petitioners there are only very few dealers who sell tapioca for domestic consumption and for use as food material and most of the dealers are exporters.

3. It is a well-settled principle of taxation law that 'the State can pick and choose districts, objects, persons, methods and rates for taxation, if it does so reasonably' : see Khyerbari Tea Co. v. State of Assam A.I.R. 1964 S.C. 925 at 941. The State is therefore competent to tax sale or purchase of tapioca. I am not prepared to hold that the levy of 2 per cent tax on the last purchase point in respect of tapioca is in any way unreasonable and confiscatory so as to violate Article 19(1)(f) and (g) of the Constitution. If the legislation is competent and constitutional and is not confiscatory, the same cannot be stated to be a colourable legislation. That under Section 8(2A) of the Central Sales Tax Act, 1956, exporters will have to pay tax at the rate of 2 per cent is no ground for declaring the impugned legislation a colourable one. To hold so would mean that goods exempted can never be the subject of taxation.

4. It is argued that no guidelines have been prescribed as regards the manner in which an assessee can establish that his turnover of the purchase of tapioca is less than Rs. 35,000 and that the same was sold for domestic consumption and for use as food material. The learned counsel for the petitioners referred me to Section 5(3) of the General Sales Tax Act, 1963 and Section 8(4) of the Central Sales Tax Act, 1956, the former provision prescribing the method and manner for claiming lower rate of tax and the latter provision prescribing the manner for claiming exemption from Section 8(1) of the Central Sales Tax Act, 1956 and submitted that no like provisions are contained in the Act or the Rules for claiming the benefit of the proviso to entry No. 72 in the First Schedule of the General Sales Tax Act, 1963, whereby tapioca became a taxable commodity. The learned Government Pleader pointed out that in so far as no particular or specified method of proof has been prescribed, the assessees would be free to prove the same in any manner. I am of the view that this submission is well-founded.

5. Though it was argued that the impugned legislation is not saved by Article 304 of the 'Constitution, it is not contended and it has not been established that Article 301 of the Constitution is attracted in any manner. In fact there was no case before me that the movement part of the trade in tapioca is in any way hindered, obstructed or restricted by the imposition of the impugned tax so as to attract Article 301. So no question of saving the tax under Article 304 arises for consideration.

6. The argument based on Section 58 needs only to be mentioned to be rejected in so far as imposition of tax on tapioca was by the legislature and not by the Government.

7. The original petitions are dismissed. In the circumstances of the case, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //