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E.J. Mathew Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Civil
CourtKerala High Court
Decided On
Case NumberTax Revision Case No. 43 of 1964
Judge
Reported in[1966]17STC25(Ker)
AppellantE.J. Mathew
RespondentState of Kerala
Appellant Advocate M.U. Isaac, Adv.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Cases Referred and State of Kerala v. Cochin Coal Company Ltd.
Excerpt:
.....then clearly the act went beyond the powers of the legislature; 1, it has to be held that the general sales tax act, 1125, imposed, or authorised the imposition of, a tax on the sale or purchase of goods, where such sale or purchase took place in the course of inter-state trade or commerce, subject to authorisation by parliament as provided in article 286(2) of the constitution and that parliament did provide the necessary authorisation for the period between the first day of april, 1951, and the 6th day of september, 1955, by the sales tax laws validation act, 1956. article 286(2) read as follows :except in so far as parliament may by law otherwise provide, no law of a state shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or..........tax under section 3(3) of the act, however, does not indicate that the point was being fixed with a view to future parliamentary legislation under article 286(2) of the constitution or only for the limited period of less than a year between the 30th day of may, 1950, and the 31st day of march, 1951. in these circumstances we think we should hold that 'explanation sales' are not within the purview of that rule and that the first sale specified is the first intra-state sale by a dealer like the petitioner who is not exempt from taxation under section 3(3) of the act. it follows that the petition should fail and that it is unnecessary to consider whether the amendments effected to the general sales tax act, 1125, by the travancore-cochin general sales tax (amendment) act, 1957, and by the.....
Judgment:

M.S. Menon, C.J.

1. The petitioner has been assessed to additional sales tax under Sub-section (2) of Section 3 of the General Sales Tax Act, 1125, in respect of the sales of tobacco effected by him in 1953-54

The relevant portion of that section read as follows:-

(1) Subject to the provisions of this Act-

(a) every dealer shall pay for each year a tax on his total turnover for such year; and

(b) the tax shall be calculated at the rate of three pies for every Indian rupee in such turnover.

(2) Subject as aforesaid, the sale of any of the goods mentioned below shall be subject to a tax at the rate specified in respect thereof, at such single point in the series of sales by successive dealers as may be prescribed; and the tax shall be paid by the dealer concerned on his turnover in each year relating to such goods, and shall be in addition to the tax to which he is liable under Sub-section (1) on his total turnover for the year :

Description Rate of tax for every Indian rupee in theof the goods. turnover relating to such goods.(ix) Tobacco 1 1/2 annas(3) A dealer whose total turnover in any year is less than ten thousand Indian rupees shall not be liable to pay any tax for that year under Sub-section (1)or Sub-section (2);

and Rule 6 of the General Sales Tax Rules. 1950, omitting the proviso thereto, was in the following terms:

The sale of any of the goods mentioned in items (i) to (ix) in Section 3, Sub-section (2), shall be subject to the tax specified in that sub-section at the stage of sale by the person who in the State is the first dealer in such goods, who is not exempt from taxation under Section 3(3).

2. The petitioner purchased the tobacco from outside the State in inter-State trade-in what has come to be termed 'explanation sales' -and sold it within the State. His contention is that he is not liable to the additional tax under Sub-section (2) of Section 3 as his supplier who sold the goods to him in inter-State trade, and not himself, should be considered as 'the person who in the State is the first dealer in such goods'. It is common ground that the supplier was not exempt from taxation under Section 3(3) of the Act.

3. The first dealer contemplated by Rule 6 should certainly be a dealer whose sales can be taxed by the State Legislature and not one whose sales are beyond its powers of taxation. In In re Hindu Women's Rights to Property Act, A.I.R. 1941 F.C. 72 a question as to the scope and extent of the expression 'property' used by the Central Legislature in the Hindu Women's Rights to Property Act, 1937, came up for consideration. The Court said:-

No doubt if the Act does affect agricultural land in the Governors' Provinces, it was beyond the competence of the Legislature to enact it; and whether or not it does so must depend upon the meaning which is to be given to the word 'property' in the Act. If that word necessarily and inevitably comprises all forms of property, including agricultural land, then clearly the Act went beyond the powers of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the Court is bound to construe the word 'property' as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate ; that is to say, property other than agricultural land.

4. In the light of the decision of the Supreme Court in Sundararamier & Co. v. State of Andhra Pradesh [1958] 9 S.T.C. 298 and State of Kerala v. Cochin Coal Company Ltd. [1961] 12 S.T.C. 1, it has to be held that the General Sales Tax Act, 1125, imposed, or authorised the imposition of, a tax on the sale or purchase of goods, where such sale or purchase took place in the course of inter-State trade or commerce, subject to authorisation by Parliament as provided in Article 286(2) of the Constitution and that Parliament did provide the necessary authorisation for the period between the first day of April, 1951, and the 6th day of September, 1955, by the Sales Tax Laws Validation Act, 1956. Article 286(2) read as follows :--

Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce :

Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty-first day of March, 1951.

There was a Presidential Order under the proviso and it is true that when Rule 6 was framed on 30th May, 1950, it was possible for the State to tax 'explanation sales' on that date and till the 31st day of March, 1951.

5. A reading of Rule 6 which was fixing a point of taxation for the additional tax under Section 3(3) of the Act, however, does not indicate that the point was being fixed with a view to future parliamentary legislation under Article 286(2) of the Constitution or only for the limited period of less than a year between the 30th day of May, 1950, and the 31st day of March, 1951. In these circumstances we think we should hold that 'explanation sales' are not within the purview of that rule and that the first sale specified is the first intra-State sale by a dealer like the petitioner who is not exempt from taxation under Section 3(3) of the Act. It follows that the petition should fail and that it is unnecessary to consider whether the amendments effected to the General Sales Tax Act, 1125, by the Travancore-Cochin General Sales Tax (Amendment) Act, 1957, and by the General Sales Tax (Amendment and Validation) Act, 1962, subsequent to the Constitution (Sixth Amendment) Act, 1956, are invalid and of no effect as contended by counsel for the petitioner.

6. The petition fails and is hereby dismissed; but in the circumstances of the case without any order as to costs.


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