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The Rajagiri Rubber Co. Ltd. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 42 to 48 of 1977
Judge
Reported in[1978]42STC395(Ker)
AppellantThe Rajagiri Rubber Co. Ltd.
RespondentState of Kerala
Appellant Advocate K.A. Nayar, Adv. and; Menon and Pai, Advs.
Respondent AdvocateThe Government Pleader
Cases Referred and Sales Tax v. Midland Rubber and Produce Co. Ltd.
Excerpt:
- - he was of the view that though the company was formed with the object of rubber business as well as other business activities, the only activity proved to have been carried on by it was cultivation ;that the business of the assessee was to cultivate rubber trees and to sell rubber derived from them and that no other business is alleged to have been carried on by the assessee; but in order to entitle him to be regarded as a dealer within the meaning of the definition of 'dealer' in section 2(b) of the act, it was necessary to investigate and find whether the elements of regularity of transactions, frequency and volume of sales, stressed by the judicial decisions stood satisfied or not......central sales tax act. he was of the view that though the company was formed with the object of rubber business as well as other business activities, the only activity proved to have been carried on by it was cultivation ; that the business of the assessee was to cultivate rubber trees and to sell rubber derived from them and that no other business is alleged to have been carried on by the assessee; and that it was therefore a pure agriculturist in rubber which sells the agricultural produce in its marketable stage. this was a clear finding of fact by the appellate assistant commissioner after consideration of all the facts and circumstances, which had been noticed by the sales tax officer for coming to the conclusion against the assessee. we may at this stage refer to the decision of.....
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. These tax revision cases are by the assessee, the Rajagiri Rubber Co. Ltd., Alleppey, in respect of assessment to sales tax under the Central Sales Tax Act, 1956, for the assessment years 1963-64 to 1969-70. The assessee claimed to be a grower or producer of rubber engaged in growing and producing the commodity and selling the same in the market as part of its agricultural operations and, therefore, exempt from the liability to pay sales tax in accordance with the principles of the Supreme Court decisions in Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Greenham Estate (P.) Limited [1969] 24 S.T.C. 424 (S.C.) and Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Midland Rubber and Produce Co. Ltd. [1970] 25 S.T.C. 57 (S.C.). If the position were as stated by the assessee, the principle of the above decisions undoubtedly support its contention. The Sales Tax Officer dealt with the matter in his order where he pointed out the conditions and circumstances from which he drew the inference that the assessee was a dealer as denned in Section 2(b) of the Act. Before we proceed to detail these circumstances and conditions, we might notice the definition of the term 'dealer' in the Act, as it stood at the relevant time, which was as follows :

Section 2(b) 'dealer' means any person who carries on the business of buying or selling goods and includes a Government which carries on such business.

The Sales Tax Officer pointed out that the assessee had got itself registered under the Central Sales Tax Act as a dealer ; it collected Central sales tax on a small portion of the turnover and C forms from its purchasers ; that it had its office, place of business and selling agents, viz., M/s. A.V. Thomas & Co. ; that its memorandum & articles of association included, as one of its objects, to carry on its business in rubber ; and that the very nature of the cash crop dealt with by the assessee ruled out any idea of cultivation for consumption and established an all pervasive profit-motive. From these considerations, the Sales Tax Officer drew the inference that the assessee was a 'dealer' and that the sale proceeds of rubber were liable to sales tax. On appeal, the Appellate Assistant Commissioner did not sustain this reasoning of the officer. He considered the aspects relied on by the Sales Tax Officer and stated that the assessee was not a dealer liable to be assessed under the Central Sales Tax Act. He was of the view that though the company was formed with the object of rubber business as well as other business activities, the only activity proved to have been carried on by it was cultivation ; that the business of the assessee was to cultivate rubber trees and to sell rubber derived from them and that no other business is alleged to have been carried on by the assessee; and that it was therefore a pure agriculturist in rubber which sells the agricultural produce in its marketable stage. This was a clear finding of fact by the Appellate Assistant Commissioner after consideration of all the facts and circumstances, which had been noticed by the Sales Tax Officer for coming to the conclusion against the assessee. We may at this stage refer to the decision of the Supreme Court on which reliance has been placed by counsel for the assessee, viz., the Dharmodayam Company's case [1977] 109 I.T.R. 527 at 533 (S.C.), where it was laid down by the Supreme Court that from an enumeration of several objects in the memorandum & articles of association, a Tribunal would not be justified in coming to the conclusion that all the objects specified in the memorandum & articles of association were actually being carried on by the company incorporated in pursuance of the said memorandum. When the matter went up further on appeal at the instance of the revenue, to the Appellate Tribunal, the Tribunal dealt with the matter in a somewhat unsatisfactory way. It did not get to grips with the circumstances and the aspects that had been concentrated upon by the Sales Tax Officer and by the Appellate Assistant Commissioner. It extracted at length the memorandum & articles of association of the company and referred to the aspects which had been referred to in the orders of the Sales Tax Officer and the Appellate Assistant Commissioner. It then proceeded to record its conlusion in paragraph 16 thus :

16. In this case, there is clear evidence to show that the company has been incorporated with the definite object of doing business and making profit from such business activities. There is clear proof to show that these business activities include the acts of purchasing lands, producing rubber and after converting it into salable articles selling them to their customers outside the State. So, to that extent the department has discharged their burden of proof.

This finding of the Tribunal apparently concluded an important part of the case against the assessee in so far as it amounts to a finding that the assessee was indulging in the activities of buying and selling rubber. But in order to entitle him to be regarded as a dealer within the meaning of the definition of 'dealer' in Section 2(b) of the Act, it was necessary to investigate and find whether the elements of regularity of transactions, frequency and volume of sales, stressed by the judicial decisions stood satisfied or not. For this purpose, the Tribunal directed a remand to the Appellate Assistant Commissioner.

2. Counsel for the assessee has strongly attacked the order of remand made by the Tribunal. We think the counsel's attack against the order is justified. The Tribunal has a duty to consider the several aspects on which reliance had been placed by the Sales Tax Officer and by the Appellate Assistant Commissioner, for coming to the conclusion on the question whether the assessee could or could not be regarded as a dealer in rubber. Without having specifically considered these aspects and entered a finding on the question, the Tribunal's remand, we are constrained to observe, amounts to a non-application of its judicial mind. We are unable to sustain the same. We set aside the order of the Tribunal and send the matter back to the Tribunal for fresh disposal in accordance with law and in the light of the observations contained in this judgment. There will be no order as to costs.


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