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Rehmath Trading Co. Vs. the Sales Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case Number O.P. No. 4421 of 1977-I
Judge
Reported in[1980]46STC25(Ker)
AppellantRehmath Trading Co.
RespondentThe Sales Tax Officer and anr.
Appellant Advocate P.A. Mohammed (T) and; S.A. Razzak, Advs.
Respondent AdvocateThe Government Pleader
DispositionPetition dismissed
Cases ReferredErnakulam v. Sales Tax Officer
Excerpt:
.....were effected in favour of the dealers possessed of certificates of registration which is the best evidence to attract the exemption. 10. in my view, exhibit p2 is well-supported by sub-rule (14) of rule 32 and form 25, which, for the reasons stated by me, are intra vires the statute and perfectly valid......provisions of entry 72 claims exemption from tax, being not the last purchaser in the state as a dealer liable to pay tax under section 5, has to obtain a declaration from the person who purchased the goods from him to the effect that such purchaser is a dealer who is liable to pay tax under section 5. the sub-rule says 'every purchaser shall issue such a declaration to the seller'. this has to be understood as every purchaser who purchases as a dealer who is liable to pay tax under section 5. it is such a buyer who has to issue a declaration to the seller to that effect. it is the seller whose identity as not the last purchaser as a dealer liable to pay tax is established by means of a declaration in the requisite form, viz., form 25, who is entitled to the exemption stated under.....
Judgment:

T. Kochu Thommen, J.

1. The petitioner challenges exhibit P2 and seeks a declaration that Sub-rule (14) of Rule 32 of the Kerala General Sales Tax Rules, 1963 ('the Rules'), on the basis of which exhibit P2 was made, and form 25 prescribed under the said sub-rule are invalid.

2. By exhibit P2 the Sales Tax Officer, Badagara, the 1st respondent, disallowed the petitioner's claim for exemption from payment of tax under the Kerala General Sales Tax Act, 1963 ('the Act'), in respect of sales of tapioca effected by them during the months of July and August, 1977. The officer provisionally assessed the petitioner to tax for the said months. The reason for rejecting the claim for exemption is that the petitioner did not satisfy the requirements of Rule 32(14).

3. I shall now refer to the relevant provisions. Section 5, which is the charging provision, reads:

5. Levy of tax on sale or purchase of goods.-(1) Every dealer (other than a casual trader or agent of a non-resident dealer) whose total turnover for a year is not less than twenty-five thousand rupees and every casual trader or agent of a non-resident dealer, whatever be his total turnover for the year, shall pay tax on his taxable turnover for that year,-

(i) in the case of goods specified in the First or Second Schedule, at the rates and only at the points specified against such goods in the said schedules ; and

(ii) ...

(2) Every dealer other than a dealer referred to in Sub-section (1) whose total turnover for a year in respect of the goods specified in the First or Second Schedule is not less than two thousand five hundred rupees shall pay tax at the rate and only at the point specified against the goods in the First or Second Schedule, as the case may be, on his taxable turnover in that year relating to such goods :.

Tapioca is mentioned in entry 72 in the First Schedule. This entry reads :

--------------------------------------------------------------------------------

Sl. Description Point of levy Rate

No. of the goods of tax

(1) (2) (3) (4)

--------------------------------------------------------------------------------

(Per

cent)

* * * *

72. Tapioca At the point of last purchase in the State by a 2.

dealer who is liable to tax under Section 5 :

Provided that a dealer shall not be liable to pay

tax under this Act in respect of tapioca if his turnover

of the purchase of tapioca within the State is less than

thirty-five thousand rupees and such tapioca is sold for

domestic consumption and for use as food material:

Provided further that an authorised retail

distributor appointed under the Kerala Rationing Order,

1966, shall not be liable to pay tax under this Act in

respect of tapioca sold to ration card holders, whatever

be his turnover.

--------------------------------------------------------------------------------

Admittedly, the provisos to entry 72 have no application to the petitioner. Consequently, tax is payable by the petitioner under Section 5, whenever it is the last purchaser in the State as a dealer.

4. A dealer is defined under Section 2(viii) as follows:

'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-.

(b) a casual trader;.

A 'casual trader' is denned under Section 2(vii) in the fallowing words :

'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.

The definition of a 'dealer' is wide enough to include persons who indulge in occasional transactions of a business nature involving the buying, selling, supply or distribution of goods in the State. But a person who sells or purchases goods otherwise than in the course of a business transaction is not regarded as a dealer under the Act, as it stood at the relevant time.

5. Section 13 postulates registration of dealers. It reads :

13. Registration of dealers.-(1) Every dealer whose total turnover in any year is not less than twenty-five thousand rupees shall, and any other dealer may, get himself registered under this Act.

(2) Notwithstanding anything contained in Sub-section (1), every dealer carrying on business in all or any of the goods mentioned in the First and the Second Schedules whose total turnover in respect of those goods in any year is not less than two thousand five hundred rupees shall get himself registered.

(3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2),-

(i) every casual trader ;.

(iv) every agent of a non-resident dealer ; and .

shall get himself registered under this Act, irrespective of the quantum of his total turnover in such goods..

All persons coming within the mandatory provisions of Section 13 must register themselves as dealers. The effect of this provision is that, apart from casual traders, whatever be their total turnover, dealers carrying on business in tapioca (which falls within the First Schedule) and having an annual total turnover of not less than Rs. 2,500 must get themselves registered.

6. The effect of these provisions is that every dealer who comes within the ambit of Section 5 and who seeks the exemption to which he is entitled under entry 72 of the First Schedule has to prove that he is not the last purchaser in the State as a dealer who is liable to pay tax under Section 5. In other words, he must prove that the sale effected by him is in favour of another dealer who is liable to pay tax. That means that in order to become qualified for exemption he should satisfy himself and the authorities that he has sold the goods to such a dealer. Every dealer who is liable to pay tax under Section 5 (including a casual trader, whatever be his turnover) is obliged to be registered in terms of Section 13. The dealer mentioned under entry 72 is a person liable to pay tax under Section 5 and is, therefore, none other than a dealer who is obliged to get himself registered under Section 13. Registration is thus the best evidence to indicate whether a person is a dealer who is liable to pay tax under Section 5. It is only in respect of sales in favour of such a dealer can the dealer who sells the goods claim the exemption under entry 72. This entry thus postulated only a class of dealers, namely, registered dealers. The absence of registration negatives any claim for exemption on the basis of sales in favour of dealers who are liable to tax. The purpose of the impugned Sub-rule (14) of Rule 32 is to make sure that he who claims exemption as per entry 72 of the First Schedule has complied with the requirements thereof. Sub-rule (14) is thus a rule of evidence which is statutorily prescribed. Sub-rule (14) of Rule 32 reads :

(14) Every dealer in goods taxable at the point of last purchase in the State shall, if he is not liable to tax on such goods by reason of his not being the last purchaser in the State, obtain a declaration in form 25 from the person to whom he has sold the goods. Every purchaser shall issue such a declaration to the seller. The declaration so obtained shall be submitted to the assessing authority on or before the twenty-fifth of the month succeeding that to which the sales relate along with a statement of such declaration showing the name and address of the dealers to whom the goods were sold with the particulars of sale bill, quantity, and value, and the total turnover covered by such declarations.

The sub-rule, though not very precisely drafted, is not difficult to understand, if read in the light of the other relevant statutory provisions. The sub-rule requires that every dealer in goods taxable at the last point of purchase, and on whom the liability to pay tax is cast under Section 5, but who by virtue of the provisions of entry 72 claims exemption from tax, being not the last purchaser in the State as a dealer liable to pay tax under Section 5, has to obtain a declaration from the person who purchased the goods from him to the effect that such purchaser is a dealer who is liable to pay tax under Section 5. The sub-rule says 'every purchaser shall issue such a declaration to the seller'. This has to be understood as every purchaser who purchases as a dealer who is liable to pay tax under Section 5. It is such a buyer who has to issue a declaration to the seller to that effect. It is the seller whose identity as not the last purchaser as a dealer liable to pay tax is established by means of a declaration in the requisite form, viz., form 25, who is entitled to the exemption stated under entry 72. Form 25 is very specific on this point. It reads:

Form of declaration to be furnished by a purchasing dealer when goods

taxable at the point of last purchase in the State are purchased by him.

[See Rule 32(14)]

1. I/We...(here enter the name and full postal address of the purchaser) dealer/s in goods taxable at the point of last purchase in the State, have purchased goods of the description given below from Shri/Messrs... (here enter the name and full postal address of the seller/s).

2. I/We have included the value of the goods so purchased in our total turnover of the year and my/our total turnover is not less than Rs. 2,500.

3. My/Our registration certificate number is...(here enter R. C. No.).

4. I/We am/are registered dealer(s) on the rolls of the Sales Tax Office, ...(here enter the name of the Sales Tax Office).

Particulars of goods purchased--------------------------------------------------------------------------------Sl. No. & date of Description of Quantity Value RemarksNo. sale bill issued goods -------------- ofby the seller No. of Weight goods---------------- packages pur-No. Date chased--------------------------------------------------------------------------------Place... Name, signature and status of the personDate... signing the declaration.

It contains a declaration by the purchaser that he is a dealer and that he has included the value of the goods purchased by him in his total turnover, which is not less than Rs. 2,500. It would appear that there is a lacuna here ; for, the form does not appear to take in the casual traders and agents of nonresident dealers who are liable to tax, irrespective of their total turnover. Nevertheless, in the case of such persons also their status has to be specified and declared by suitable alteration of the form, even if their turnover is less than the minimum mentioned in the form. The purchasing dealer is further required to give the particulars of his certificate of registration on the rolls of the sales tax office where he is registered as a dealer. The particulars of the goods purchased have also to be mentioned in the form. The form contains, subject to what is stated earlier, all the requisite particulars necessary to prove that the transaction in question supports the claim for exemption in terms of entry 72.

7. The argument of the petitioner's counsel is that Sub-rule (14) of Rule 32 and the particulars required in form 25 are arbitrary provisions in so far as they exclude the possibility of an assessee proving his claim for exemption otherwise than by showing that the person to whom goods were sold was possessed of the necessary registration certificate. The petitioner's counsel contends that Sub-rule (14) has to be read as directory and not mandatory, for there may be cases where it would be possible for the assessee to show that, although the person to whom goods were sold did not possess a certificate of registration as a dealer, was in fact a dealer liable to tax by reason of the nature and size of his activities. He relies upon the decision of this Court in Phipson and Company Limited, Ernakulam v. Sales Tax Officer, Special Circle, Ernakulam 1967 K.L.T. 623, where it was held that the requirement of Sub-rule (13) of Rule 32 was directory and not mandatory.

8. Sub-rule (13) reads as follows :

(13) Every dealer in goods taxable at the point of first sale in the State, shall, if he is not liable to tax on such goods by reason of his not being the first seller of the goods in the State, obtain a certificate written and signed underneath or on the other side of the bill or cash memorandum to the effect that the goods covered by the bill or cash memorandum had suffered tax at his (seller's) hands or at the hands of any other dealer mentioned in the certificate. The seller in such goods shall give such a certificate on every sale made by him.

With reference to that sub-rule this Court stated that if the assessee could establish that the goods in question had already suffered tax at the point of the first sale, the assessee being not the first seller, his claim for exemption even in the absence of the certificate required under the sub-rule could not be rejected. Sub-rule (13) was regarded as directory for the reason that it was possible in such cases for the authorities to verify with reference to the relevant documents whether tax had in fact been paid.

9. But Sub-rule (14) postulates a different situation. Here the goods have not suffered tax at any point of time and the dealer claims exemption on the ground that the sale in question is in favour of another dealer who is liable to tax. The only effective means of verification of the identity of the purchaser as such a dealer to enable the seller to claim the exemption as per entry 72 is the production of the certificate of registration as required under Sub-rule (14). If Sub-rule (14) is read as directory it would in many cases be practically impossible for the concerned authorities to verify the genuineness of the claim for exemption. Section 13 compels the registration of all dealers who are liable to pay tax under Section 5. Consequently, the exemption under entry 72 can extend only to those dealers who are in a position to establish that the sales in question were effected in favour of the dealers possessed of certificates of registration which is the best evidence to attract the exemption. Registration is the statutory proof of the status of the purchaser and form 25 is the surest means of establishing the seller's claim to exemption. This is what is sought to be accomplished by the mandatory provisions contained in Rule 32(14). In the circumstances, the contention that Sub-rule (14) has to be read as directory has no substance.

10. In my view, exhibit P2 is well-supported by Sub-rule (14) of Rule 32 and form 25, which, for the reasons stated by me, are intra vires the statute and perfectly valid. The original petition is accordingly dismissed. In the circumstances of this case, the parties will bear their respective costs.


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