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The Deputy Commissioner of Agricultural Income-tax and Sales Tax Vs. V. Sreedhara Shenoy - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 36 and 37 of 1971
Judge
Reported in[1973]32STC181(Ker)
AppellantThe Deputy Commissioner of Agricultural Income-tax and Sales Tax
RespondentV. Sreedhara Shenoy
Appellant AdvocateGovernment Pleader
Respondent Advocate V. Rama Shenoi and; R. Raya Shenoi, Advs.
DispositionPetition allowed
Cases ReferredMegh Raj v. Allah Rakhia A.I.R.
Excerpt:
.....has failed to understand the significance of the passage extracted; the result is that the division bench ruling of this court thought by the tribunal to have been impliedly overruled is not overruled and is still good law. 10. this clearly indicates (there cannot be any doubt about it either) that a sale by a retailer to a card-holder of rationed articles is a sale coming within the sales tax act. we hold that the tribunal has erred on this question as well. then section 15 gives some exemption to the goods mentioned in section 14, clause (vi) of which reads :oil-seeds, that is to say, seeds yielding non-volatile oils used for human consumption, or in industry, or in the manufacture of varnishes, soaps and the like, or in lubrication and volatile oils used chiefly in medicines,..........a decision of the allahabad high court, where the learned judges followed their own earlier full bench decision in ram bilas ram gopal's case [1969] 24 s.t.c. 508, which was referred to by our division bench in the decision already mentioned. as indicated already, the supreme court reversed the decision of the allahabad high court; and the tribunal appears to have thought that the said decision of the supreme court had the effect of overruling the reasoning of the full bench of the allahabad high court referred to by us in our division bench ruling. and the tribunal came to the conclusion that our division bench ruling was also impliedly overruled by the decision of the supreme court in chittar mal narain das's case [1970] 26 s.t.c. 344 (s.c.).4. the relevant passage from the judgment.....
Judgment:

T.C. Raghavan, C.J.

1. These revision cases are against a common order passed by the Sales Tax Appellate Tribunal in two cases relating to two different assessment years. The State is the petitioner in both the cases and the common assessee the respondent. The questions involved are also the same.

2. The assessee is a wholesale dealer in rationed foodgrains like rice and wheat and also a dealer in groceries including coriander and methi. He claimed total exemption from tax on his turnover of sales of controlled rationed focdgiains, which claim the Sales Tax Officer and the Appellate Assistant Commissioner rejected, but, on appeal, was allowed by the Tribunal. He had also a contention that the wheat sold by him came within the Notification S.R.O. No. 602/63 dated 24th April, 1963, published in the official Gazette on 2nd June, 1963. This contention was also accepted by the Tribunal. Yet another contention the assessee had was that coriander and methi were oil-seeds coming within Section 14(vi) of the Central Sales Tax Act. This again was accepted by the Tribunal, which held that the assessee need not pay tax on the sales of coriander and methi. There were other contentions too like that the sales of wheat attempted to be taxed were not first sales within the State and that the containers were not taxable. These questions, however, were not considered by the Tribunal, since the conclusions on the other questions made a decision on these issues unnecessary. What we have to consider is whether the decisions of the Tribunal on the three questions mentioned above are correct.

3. The main question is the first question, namely, whether the sales of the rationed articles by the assessee to the retailers were sales coming within the General Sales Tax Act. There was an earlier Division Bench ruling of this Court, to which one of us was a party, in R.P. Govindan & Co. v. Sales Tax Appellate Tribunal [1970] K.L.T. 136. where the question considered was whether such sales of rationed articles to the retailers by a wholesaler were sales. And the Division Bench answered the question in the affirmative. When judgment was being pronounced in that case, the Full Bench ruling of the Allahabad High Court in Commissioner of Sales Tax, U.P., Lucknow v. Ram Bilas Ram Gopal [1969] 24 S.T.C. 508, was brought to the notice of the Division Bench; and the Division Bench observed that the reasoning in that decision was almost on the same lines as the reasoning the Division Bench adopted in the case before it. Thereafter, the decision of the Supreme Court in Chittar Mal Narain Das v. Commissioner of Sales Tax, U.P. [1970] 26 S.T.C. 344 (S.C.) came. That was a decision reversing a decision of the Allahabad High Court, where the learned Judges followed their own earlier Full Bench decision in Ram Bilas Ram Gopal's case [1969] 24 S.T.C. 508, which was referred to by our Division Bench in the decision already mentioned. As indicated already, the Supreme Court reversed the decision of the Allahabad High Court; and the Tribunal appears to have thought that the said decision of the Supreme Court had the effect of overruling the reasoning of the Full Bench of the Allahabad High Court referred to by us in our Division Bench ruling. And the Tribunal came to the conclusion that our Division Bench ruling was also impliedly overruled by the decision of the Supreme Court in Chittar Mal Narain Das's case [1970] 26 S.T.C. 344 (S.C.).

4. The relevant passage from the judgment of the Supreme Court, namely, the judgment of Shah, J., was extracted by the Tribunal. Still, the Tribunal has failed to understand the significance of the passage extracted; for instance, the crucial sentence in the passage is :

In our judgment Clause 3 sets up a machinery for compulsory acquisition by the State Government of stocks of wheat belonging to the licensed dealers.

5. This is proof positive that the finding of the Supreme Court in the said decision was that the stocks of wheat belonging to the licensed dealers were cornpulsorily acquired by the State Government; naturally, the sales by the licensed dealers in that case were not sales coming within the Sales Tax Act; compulsory acquisitions are evidently not sales.

6. The counsel of the respondent has argued with considerable fervour that the observation of. the Division Bench 'simply because one of the elements necessary to constitute 'sale' under the Sale of Goods Act is absent, the sale will not cease to be a sale' has gone beyond the principles laid down by the three decisions of the Supreme Court relied on by the Division Bench. We do not think that this criticism of the counsel is justified. The Division Bench has pointed out, relying on State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. [1958] 9 S.T.C. 353 (S.C.) and New India Sugar Mills Ltd. v. Commissioner of Sales Tax Bihar [1963] 14 S.T.C. 316 (S.C.), that a sale as contemplated by the Sale of Goods Act had four ingredients, viz., parties competent to contract, mutual assent, a thing the absolute or general property in which was transferred from the seller to the buyer and a price in money paid or promised. Thereafter, considering the three other decisions of the Supreme Court, Indian Steel and Wire Products Ltd. v. State of Madras [1968] 21 S.T.C. 138 (S.C.), Andhra Sugars Ltd. v. State of Andhra Pradesh [1968] 21 S.T.C. 212 (S.C.) and State of Rajasthan v. Karam Chand Thappar and Brothers (Coal Sales) Ltd., Jaipur [1969] 23 S.T.C. 210 (S.C.), the Division Bench has made the observation, the correctness of which is disputed. It is clear that, out of the four ingredients mentioned above to constitute a sale, the first, the third and the fourth could not be absent in any transaction and the absence, if an absence is possible, could only be of the second ingredient, i. e., mutual assent. Thus, the observation of the Division Bench, that the absence of one of the elements necessary to constitute a sale will not make the sale any the less a sale, can only relate to the absence of mutual assent. And from the reasoning in the three Supreme Court decisions relied on by the Division Bench, the presence of mutual assent was considered to be not an ingredient in a sale under the Sales Tax Act.

7. This position has been made more clear by the later decision of the Supreme Court in Salar Jung Sugar Mills Ltd. v. State of Mysore [1972] 29 S.T.C. 246 (S.C.). Seven Judges constituted the Bench; and Ray, J., has pronounced the unanimous judgment of the court. The learned Judge has considered all the relevant decisions of the Supreme Court on the topic commencing with Gannon Dunkerley's case ([1958] 9 S.T.C. 353 (S.C.)) and ending with Chittar Mal Narain Das's case [197O] 26 S.T.C. 344 (S.C.), the learned Judge has also referred to a few English decisions, some of which at least were referred to by our Division Bench. Ultimately, Ray, J., has considered the English decision in Ridge Nominees Ltd. v. Inland Revenue Commissioners [1962] Ch. 376 and has extracted a passage from the judgment of Danckwerts, L.J., which reads:

It seems to me that a sale may not always require the consensual element mentioned in Benjamin on Sale, 8th ed., p. 2 and that there may, in truth, be a compulsory sale of property with which the owner is compelled to part for a price against his will. The effect of the statute in such a case is to say that the absence of the transferor's consent does not matter and the sale is to proceed without it.

8. This passage makes the position clear beyond doubt that, if an owner is compelled to part with his property for a price even against his will, the transaction will still be a sale. And this was all that was said by the Division Bench in the passage discussed above. The result is that the Division Bench ruling of this Court thought by the Tribunal to have been impliedly overruled is not overruled and is still good law.

9. We may once again revert to the recent decision of the Supreme Court in Salar Jung Sugar Mills case [1972] 29 S.T.C. 246 at 262 (S.C.), where Ray, J., has observed:

Counsel for the appellants contended that mutual assent in the present case would not be free but compulsory and the parties would have no choice in the matter and therefore there would be no sale. The most common-place illustration of supply and acceptance of goods resulting in sale under the present conditions is furnished by the present system of sale of rationed goods. There are ration shops in particular areas. Ration cards are distributed to residents in that area. The owners of these cards are required to go to the particular shop mentioned in the card for supply of rationed articles. Price is also regulated by the Rationing Order. Therefore the parties, the price, the shop, the supply and the acceptance of goods in accordance with the provisions of the Rationing Order are all regulated. When one presents a ration card to the shop and the shop owner delivers the rationed articles and the holder of the ration card accepts them and pays the price, there is indisputably a sale.

10. This clearly indicates (there cannot be any doubt about it either) that a sale by a retailer to a card-holder of rationed articles is a sale coming within the Sales Tax Act. Then, we are not able to understand how a sale by a wholesaler to a retailer of rationed articles is not a sale coming within the Sales Tax Act. Therefore, the decision of the Tribunal on this question is erroneous; and we hold that the sales of rationed articles by the assessee to the retailers are taxable sales.

11. The next question is one relating to the sale of wheat. The Tribunal has held that Notification S.R.O. No. 602/63 applied to the cases. The Government Pleader has pointed out that the said notification cannot apply to the sales of wheat in these cases; and the counsel for the assessee has also agreed to this. Therefore, we need not consider this question in any elaborate manner; we hold that the Tribunal has erred on this question as well.

12. But the counsel for the respondent has pointed out that, even if the notification relied upon by the Tribunal does not apply to the cases, still there will remain the further question whether the sales of wheat are really first sales within the State. The Government Pleader also has agreed that this question has to be considered by the Tribunal.

13. Then we come to the third question, namely, whether coriander and methi come within Section 14(vi) of the Central Sales Tax Act, Section 14 declares that certain goods are of special importance in inter-State trade or commerce. Then Section 15 gives some exemption to the goods mentioned in Section 14, Clause (vi) of which reads :

Oil-seeds, that is to say, seeds yielding non-volatile oils used for human consumption, or in industry, or in the manufacture of varnishes, soaps and the like, or in lubrication and volatile oils used chiefly in medicines, perfumes, cosmetics and the like.

14. There is a Division Bench ruling of the Orissa High Court in State of Orissa v. Dinabandhu Sahu & Sons [1969] 24 S.T.C. 233, where the Division Bench has interpreted this clause as if it were a definition of the term 'oil-seeds'. And this decision has been followed by the Tribunal; and the Tribunal has held on the strength of this ruling that coriander and methi axe oil-seeds entitled to the exemption mentioned in Section 15 of the Central Sales Tax Act. And the correctness of this is being questioned by the Government Pleader. The Government Pleader has drawn our attention to the recent Division Bench ruling of this Court in State of Kerala v. Moidoo 1972 K.L.T. 90, where this question has been considered. The Division Bench has pointed out that there are other decisions also like the Orissa Division Bench ruling including a decision of our court by a single Judge in 0. M. Hamsa Haji v. Sales Tax Officer, Tirur 1967 K.L.T. 731. Still, the Division Bench has held that the language of Clause (vi) of Section 14 will not justify the conclusion that the said clause embodies a definition of the term 'oil-seeds'. The Division Bench has referred to relevant decisions of the Supreme Court like Ramavatar Budhaiprasad v. The Assistant Sales Tax Officer, Akola [1961] 12 S.T.C. 286 (S.C.) and Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh [1967] 19 S.T.C. 469 (S.C.) and also to the Full Bench decision of this Court in Krishna Iyer v. State of Kerala 1962 K.L.T. 608. There is yet another Division Bench ruling of this Court taking the same view in Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Mammootty 1970 K.L.T. 142. The principle to be followed in such cases is to accept the meaning of the terms as they are understood in common parlance.

15. The decision of the Federal Court in Bhola Prasad v. Emperor A.I.R. 1942 F.C. 17 and the decision of the Privy Council in Megh Raj v. Allah Rakhia A.I.R. 1947 P.C. 72, have held that the expression 'that is to say' is only explanatory or illustrative and is not an expression either of amplification or of limitation. Considering these aspects, the Division Bench has held in Moidoo's case 1972 K.L.T. 90, that Clause (vi) of Section 14 does not embody a definition of 'oil-seeds' and the words following the expression 'that is to say' are only explanatory of the term 'oil-seeds'. We do not find any reason to doubt the correctness of this conclusion of the Division Bench; and we are in agreement with this view. It must, therefore, follow that the nature of coriander and methi (whether they are oil-seeds) has to be ascertained from the way or manner in which these articles are treated or understood by persons who deal in them or use them. And it is common knowledge that these articles are not understood or treated by the common man who uses them as oil-seeds; in common parlance, they are not understood or considered to be oil-seeds; nor are they considered to be oil-seeds by the dealer who sells them. We may point out that, in Moidoo's case 1972 K.L.T. 90, the Division Bench was considering dhania (coriander); and that the Division Bench has remanded the case to the Tribunal to find out whether dhania is an oil-seed or not as it is understood in common parlance. We do not think there is any need for a remand on this question, since coriander and methi are not considered to be oilseeds in common parlance. Therefore, on this question we hold that they are not oil-seeds; and that the petitioner is not entitled to any concession on the sales of these articles.

16. It is then pointed out by the counsel of the respondent that there was another question also, viz., that the respondent was not bound to pay tax on containers. As we have already stated at the commencement of the judgment, the Tribunal did not consider this question, since it was unnecessary in the view it took on the first question. Now that we have taken a different view on the said question, this question has also to be considered by the Tribunal.

17. In the result, we allow these revision cases and hold that the respondent (the assessee) is not entitled to any exemption on the sales of rationed articles. Regarding the question of sales of wheat, the Tribunal will consider whether the sales are first sales in the State or not. The Tribunal will also decide whether the containers are liable to tax. And on the basis of these decisions, the Tribunal will modify its decision to the extent indicated.

18. The revision cases are allowed in the manner indicated, however, without any order regarding costs.


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