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Deputy Commissioner of Agricultural Income-tax and Sales Tax Vs. Balakrishna Pillai - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case Number T.R.C. No. 38 of 1973
Judge
Reported in[1975]36STC487(Ker)
AppellantDeputy Commissioner of Agricultural Income-tax and Sales Tax
RespondentBalakrishna Pillai
Appellant AdvocateThe Government Pleader
Respondent Advocate C.K. Sivasankara Panicker and; P.G. Parameswara Panicker, Advs.
DispositionRevision dismissed
Cases ReferredState of Gujarat v. Raipur
Excerpt:
- - 7. we would like to add that the authorities cited at the bar in respect of the assessee reported in state of gujarat v......reported in state of gujarat v. raipur . [1967] 19 s.t.c. 1 (s.c.), which laid down that for a sale turnover to be exigible for tax it should be in the course of business and that there should be frequency, continuity or periodicity in the sales. reliance was also placed on a decision of this court in r. narasimhan poti v. state of kerala [1971] 27 s.t.c. 39.6. the counsel for the revenue contended that gunnies are a commodity having resale value and that purchases and sales of gunnies are activities closely integrated with the business in cashew-nuts and that the sales of gunnies are in the course of business. an identical question came up for decision before this court in srinivasa pai v. state of kerala [1975] 36 s.t.c. 482 (t. r. c. nos. 35, 36 and 37 of 1973), and also in.....
Judgment:

V. Khalid, J.

1. The revenue is the petitioner. The revenue seeks to revise the order passed by the Sales Tax Appellate Tribunal, Trivandrum, exempting the turnover of Rs. 53,177 being the sale proceeds of empty gunnies by the assessee. The Tribunal rested its decision on the ground that the sales of empty gunnies were not in the course of the business and hence was not liable to be taxed.

2. The assessee is a leading cashew trader. The year of assessment is 1968-69. The total sales turnover reported was Rs. 2,60,54,546.76, which included the sales turnover of Rs. 53,176.95, being the sale proceeds of empty gunnies. The assessee claimed exemption from tax for the sale proceeds of empty gunnies on the ground that it was not his main business. The assessing authority took the view that purchases and sales of gunnies were an integral part of the cashew business and included this turnover also for assessment. The Appellate Assistant Commissioner confirmed the assessment. In second appeal the Appellate Tribunal held that the sale proceeds aforesaid is not exigible to tax.

3. The Appellate Tribunal held that the amount of Rs. 53,176.95 represents the sale of gunnies that are 'discarded materials' accumulated in the course of carrying on the business in cashew. It also held that the value of gunnies in relation to the turnover of cashew is negligible and that the transaction was not entered into with a profit-motive and also that the sale of gunnies is not in the course of business, and hence not taxable.

4. The following questions of law were raised for our decision in this tax revision case:

(A) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in holding that the empty gunnies are 'discarded materials' accumulated in the course of carrying on business in cashew-nuts Is the said finding based on any material ?

(B) Was the Appellate Tribunal justified in law in holding that the sale of empty gunnies by the assessee in the instant case is not in the course of business and as such the turnover of Rs, 53,177 is not liable to be taxed ?

(C) Are the findings of the Appellate Tribunal to the effect 'that the volume of sales of empty gunnies is only negligible', 'that it cannot be said that the periodic disposal of the empty gunnies in the case in question are transactions entered into with profit-motive' etc., based on any material Are the said findings justified and valid in law ?

(D) Is the interpretation of the Supreme Court decision reported in State of Gujarat v. Raipur . [1967] 19 S.T.C. 1 (S.C.) by the Appellate Tribunal valid and sustainable and

(E) Are not the findings and conclusion of the Appellate Tribunal holding that the sales of empty gunnies is not in the course of business vitiated due to a wrong approach to the question at issue ?

5. Reliance was placed by the assessee before the Appellate Assistant Commissioner and the Tribunal on a decision of the Supreme Court reported In State of Gujarat v. Raipur . [1967] 19 S.T.C. 1 (S.C.), which laid down that for a sale turnover to be exigible for tax it should be in the course of business and that there should be frequency, continuity or periodicity in the sales. Reliance was also placed on a decision of this court in R. Narasimhan Poti v. State of Kerala [1971] 27 S.T.C. 39.

6. The counsel for the revenue contended that gunnies are a commodity having resale value and that purchases and sales of gunnies are activities closely integrated with the business in cashew-nuts and that the sales of gunnies are in the course of business. An identical question came up for decision before this court In Srinivasa Pai v. State of Kerala [1975] 36 S.T.C. 482 (T. R. C. Nos. 35, 36 and 37 of 1973), and also in National Cashew Co. v. State of Kerala Printed at page 490 infra. (T. R. C. No. 9 of 1972). This court, to which one of us was a party, held that the sales turnover of gunny bags is exigible to tax. This court repelled the contention of the assessees who were dealers in ration foodgrains, sugar, provisions, etc., in Srinivasa Pai v. State of Kerala* (T. R. C. Nos. 35, 36 and 37 of 1973), and in cashew-nuts in National Cashew Co. v. State of Kerala Printed at page 490 infra (T. R. C. No. 9 of 1972), that they did not carry on business in gunny bags. This court upheld the plea of the revenue that the containers In those cases did not lose their physical or commercial identity and that the turnover in respect of the containers was liable to tax. The principle enunciated in the decisions, referred to above, applies to this case also and, therefore, we have to set aside the order of the Tribunal and hold that the Tribunal was not right in exempting the sales turnover of gunny bags.

7. We would like to add that the authorities cited at the Bar in respect of the assessee reported in State of Gujarat v. Raipur . [1967] 19 S.T.C. 1 (S.C.) have to be considered against the background of the amended sections of the Kerala General Sales Tax Act, 1963. We would extract the relevant definitions that are necessary for the disposal of this case. Section 2(viii) defines a 'dealer'.

(viii) 'dealer' means any person who carries on the business of buying, selling, supplying or distributing goods directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes....

The definition includes a casual trader also. A 'casual trader' is defined in Section 2(vii) :

(vii) 'casual trader' means a person who has, whether as principal, agent or in any other capacity, occasional transactions of a business nature involving the buying, selling, supply or distribution of goods in the State, whether for cash or for deferred payment, or for commission, remuneration, or other valuable consideration ;

'Sale' is defined in Section 2(xxi) and 'turnover' is defined In Section 2(xxvii) :

(xxi) 'sale' with all Its grammatical variations and cognate expressions means every transfer of the 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, but does not include a mortgage, hypothecation, charge or pledge....'

'(xxvii) 'turnover' means the aggregate amount for which goods are either bought or sold, or supplied or distributed by a dealer, either directly or through another, on his own account or on account of others, whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or horticultural produce grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise shall be excluded from his turnover....'

8. The discussion in the decisions cited above would indicate that if the sales turnover of a particular dealer is to be included for the purposes of assessment, he should be held to be carrying on business in that particular commodity and that isolated transactions of commodities with which he did not deal should not be included in the turnover liable to assessment. The observations in those decisions lose much of the weight in the light of the definition of a 'dealer' including the casual trader also, who, according to the definition, is a person either as principal or agent or in any other capacity, has occasional transactions of a business nature involving buying, selling, supply or distribution of goods in the State, whether for cash or for deferred payment or for commission, remuneration or other valuable consideration. It cannot be said that the assessee in this case who deals in cashew-nuts cannot be brought within the ambit of a casual trader occurring in Section 2(vii) of the Act. On this ground, the decision of the Tribunal has to be set aside. In the result, we allow this revision with costs, set aside the order of the Tribunal and confirm the order of the Appellate Assistant Commissioner.


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