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A. Srinivasa Pai Vs. Sales Tax Appellate Tribunal, Trivandrum - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 7 and 19 of 1958
Judge
Reported inAIR1961Ker236; [1961]12STC80(Ker)
ActsT.C. General Sales Tax Act, 1125 - Sections 2 and 5
AppellantA. Srinivasa Pai
RespondentSales Tax Appellate Tribunal, Trivandrum
Appellant Advocate V.K.K. Menon,; S. Balakrishna Pillai,; C.S. Padmanabha I
Respondent AdvocateGovernment Pleader
DispositionPetitions dismissed
Cases ReferredRobinson v. Graves
Excerpt:
- - neither the rice nor the bags are supplied free, and it must follow that the petitioners are dealers not merely in rice but in the bags as well. 15. the contention apparently is that the rice and the bags form an integrated commodity and the exemption under section 5 (vi) of the act should hence apply not merely to the rice but to the bags as well......however, to indicate that the bags were given' free, and that their value did not form part of the price paid by the purchasers.5. the tribunal has taken the view that the price per bag of rice charged -by the petitionerscontained two elements, the price of the rice which is exempt from taxation and the price of the bags which is not so exempt. we are unable to see anything wrong in the conclusion reached by thetribunal.6. the expression 'dealer' is defined in section 2 (d) of the act as 'any person who carries on the business of buying or selling goods'. there can he no doubt that the petitioners are dealers within the meaning of this definition.7. the expression 'goods' is defined in section 2 (e) of the act as 'all kinds of movable property' including certain items specifically.....
Judgment:

M.S. Menon, J.

1. These are petitions under Section 15-B of the General Sales Tax Act, 1125. They seek a revision of the orders of the Sales Tax Appellate Tribunal, Trivandrum in Appeals Nos. 40 of 1957 and 13 of 1958. T. R. C. No. 7 of 1958 relates to Appeal No. 40 of 1957 and T. R. C. No. 19 of (1958 to Appeal No. 13 of 1958. The petitions were heard together and a common judgment will suffice.

2. The question for determination in both the cases is whether when bags of rice are sold the gunny bags concerned attract sales tax under the General Sales Tax Act, 1125. The Tribunal has held that the tax is attracted and it is the correctness of that decision that is challenged before us.

3. It is not disputed that the rice itself does not attract any tax under the Act. , Section 5(vi) of die Act specifically provides that the sale of foodgrains shall be exempt from taxation.

4. The petitioners had not charged separately For the gunny bags when the bags of rice were sold. There is nothing, however, to indicate that the bags were given' free, and that their value did not form part of the price paid by the purchasers.

5. The Tribunal has taken the view that the price per bag of rice charged -by the petitionerscontained two elements, the price of the rice which is exempt from taxation and the price of the bags which is not so exempt. We are unable to see anything wrong in the conclusion reached by theTribunal.

6. The expression 'dealer' is defined in Section 2 (d) of the Act as 'any person who carries on the business of buying or selling goods'. There can he no doubt that the petitioners are dealers within the meaning of this definition.

7. The expression 'goods' is defined in Section 2 (e) of the Act as 'all kinds of movable property' including certain items specifically mentioned in that definition and excluding 'actionable claims, stocks and shares and securities'. There can be no doubt that the definition will cover both' rice and gunny bags.

8. The petitioners sell, rice in gunny bags and charge a price which we must consider as a composite figure consisting of the price of the rice and of the bags in which the rice is sold. Neither the rice nor the bags are supplied free, and it must follow that the petitioners are dealers not merely in rice but in the bags as well.

9. The tax under the Act is a tax on the turnover of a dealer. 'Turnover' is defined in Section 2 (k) of the Act as the aggregate amount for which goods are either bought by or sold by a dealer whether for cash or for deferred payment or other valuable consideration.

10. Every transfer of property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration will come within the definition of the expression 'sale' as given in Section 2 (j) of the Act There is definitely a transfer of property in these cases in both rice and gunny bags and that in the course of the petitioners' trade or business and for cash or for deferred payment or other valuable consideration.

11. In other words, all the elements necessary to subject the petitioner's turnover in respect of gunny bags to sales tax appear to be present. The turnover cannot be gathered separately from the accounts of the petitioners and has been estimated at Rs. 74,908-2-0 in T. R. C. No. 7 of 1958 and at Rs. 49,136-8-0 in T. R. C. No. 19 of 1958, The correctness of the estimate is not in dispute; before us.

12. All the decisions reported in the Sales Tax Cases which have any bearing on the subject--Varasukhi and Co. v. Province of Madras, 1951-2 STC X (Mad); Mohanlal Jogani Rice and Attal Mills v. State of Assam, 1953-4 STC 129 : (AIR 1953 Assam 42); Indian Leaf Tobacco Development Co., Ltd, v. State of Madras (Now Andhra) 1954-5 STC 354 (Mad); Nimar Cotton Press, Khandwa v. Sales Tax Officer, Khandwa, 1954-5 STC 428 : ((S) AIR 1956 Nag 27); A. S. Krishna and Co., Ltd. Guntur v. State of Andhra, 1956-7 STC 26 : (AIR 1957 Andh Pra 706); B.V. Hanumantha Rao v. State of Andhra, 1956-7 STG 486 (AP); Nizam Sugar Factory Ltd. v. Commr. of Sales Tax Hyderabad, 1957-8 STC 61 : ((S) AIR 1956 Hyd 194); Jaikishan Gopikishan v. Commr. of Sales Tax M.B., 1957-8 STC 286 : ((S)AIR 1957 Madh Pra 40); Govindram Raroprasad v. Assessing Authority, 1957-8 STC 407 : (AIR 1958 Madh Pra 16) and Krishna Roller Flour Mills, Ganj v. State of Punjab, 1958-9 STC 439 (Puuj) --were cited before us. There is a full discussion of most of them in the orders of the Appellate Tribunal and we consider it quite unnecessary to go over the ground afresh,

13. The cases cited are naturally dependent on the facts and circumstances which obtained in those cases. As pointed out by counsel for the petitioners those facts and circumstances are not entirely identical with the facts and circumstances with which we are concerned! The over-all picture, however, is clear and in support of the contention urged by the Department.

14. Counsel for the petitioners also drew our attention to two works contract cases under the Madras General Sales Tax Act, 1939 --State of Madras v. Cannon Dunkerley and Co. (Madras) Ltd., AIR 1958 SC 560 and Sundaram Motors (Private) Ltd. v. State of Madras, AIR 1959 Mad 33 -- and to Robinson v. Graves, (1935) 1 KB 579. The last mentioned case related to a contract to paint a portrait. All that was held was that such a contract was not a contract for the sale of goods but a contract for work and labour.

15. The contention apparently is that the rice and the bags form an integrated commodity and the exemption under Section 5 (vi) of the Act should hence apply not merely to the rice but to the bags as well. The exemption under Section 5 (vi) is only in respect of the sale of foodgrain, and we are not prepared to say that when foodgrains are packed in gunny bags, the gunny bags lose their physical or commercial identity and form' a part of the food-grains themselves. As stated in (1951) 2 STC 1 (Mad) 'any exemption of arty article must be strictly construed and confined to the exemption itself and not extended.'

16. Ira the light of what is stated abovethese petitions have to be dismissed and we do sowith costs. Advocate's fee Rs. 150/- in each of thetwo cases.


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