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Deputy Commissioner of Sales Tax, South Zone Vs. Travancore Rayons Ltd. - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtKerala High Court
Decided On
Case Number Tax Revision Case No. 2 of 1959
Judge
Reported in[1961]12STC178(Ker)
AppellantDeputy Commissioner of Sales Tax, South Zone
RespondentTravancore Rayons Ltd.
Appellant AdvocateThe Government Pleader
Respondent Advocate K.P. Abraham,; E.M. Jacob,; George Kurien,;
Disposition Petition dismissed
Cases ReferredFirm L. Hazari Mal v. Income
Excerpt:
.....and co-extensive. [n. narasimhaiah v karnataka state financial corporation, air 2004 kar 46 dissented from]. - the rules further provide that the assessing authority, on being satisfied about the applicant being a bona fide dealer in goods on a strictly wholesale basis which were being despatches outside the state should order registration and issue a certificate in form xvii......such discount or deduction is equally applied to all from whom such payment is demandable.8. we think rebate means relinquishing part of the liability by a person entitled to with a view to persuade a person liable to follow a particular conduct which such person was not otherwise compelled. that being the gist of the definition, we think to withhold it where payment had already been made, and confer it where payment is to be made, would not be a proper interpretation of the section. on the other hand, following the particular conduct would be essential for getting the benefit, and in this context we do not think the provisions of section 11 (2) would be attracted, so as to preclude a dealer from claiming the benefit. the learned advocate has also relied on the definition of the word.....
Judgment:

M.A. Ansari, C.J.

1. This petition under Section 15-B(1) of the General Sales Tax Act, XI of 1125, is by the Deputy Commissioner of Sales Tax, South Zone, and the respondent is the Travancore Rayons Ltd., Rayon-puram, Perumbavoor. The dispute between the parties is over the rebate of 50% under Section 8 of the General Sales Tax Act, hereafter mentioned as the Act. The facts of the case are that the respondent's sale turnover for rayon and transparent paper had during the assessment year 30th May, 1950, to 31st March, 1951, amounted to Rs. 61,50,087, and the turnover of the sales in club house for the same year had come to Rs. 25,111, the two amounting to Rs. 61,75,198. The sales tax on those at the rate of 3 pies would normally come to Rs. 96,534-5-6 ; but the dealer had already deposited Rs. 97,597-8-0 and would be admittedly entitled to the difference claimed. In addition the dealer was claiming 50% rebate on the sales amounting to Rs. 68,26,943, and should 'this claim be allowed the tax chargeable would be reduced to Rs. 50,230-1-0. The Sales Tax Officer had rejected it directing the refund of Rs. 1,444-11-0, that being the difference between that had been deposited earlier and the actual amount of sales tax found due on the total turnover of the dealer. The Appellate Assistant Commissioner was also not impressed with the claim and confirmed the order appealed against. The respondent therefore appealed to the Appellate Tribunal that has allowed the appeal and has held the benefit conferred by Section 8 not to be controlled or affected by Section 11(2) of the Act.

2. The petitioner's learned Advocate had argued that a dealer under the Act cannot withhold what he has collected by way of sales tax, and the benefit conferred by Section 8 would not justify the tax being shared between the State and the dealer. He has urged that the latter provision should be interpreted to operate, where the liability to pay the tax be still undischarged and not to justify a claim for refund. Having regard to the importance of the question we would quote in extenso Section 8 :-

Sales of certain goods for delivery outside the State.-In respect of such finished articles of industrial manufacture as may be notified by Government and subject to such restrictions, and conditions as may be prescribed, a rebate shall be allowed of one-half of the tax levied on sales of such articles for delivery outside the State, if such articles are actually so delivered.

3. It is also clear that the benefit under the section can be claimed only by a dealer who had already been registered according to Rule 25 framed under the Act. That rule provides that dealers, who export on strictly wholesale basis, articles mentioned in the Notification under Section 8 must register themselves. The application for the purpose must be in Form XVI and should be submitted to the assessing authority of the area where the principal place of business of the dealer be situated, with payment of Rs. 20 as fee. The rules further provide that the assessing authority, on being satisfied about the applicant being a bona fide dealer in goods on a strictly wholesale basis which were being despatches outside the State should order registration and issue a certificate in Form XVII. The certificate should cover the place or places of business of the dealer, should relate to the year for which it is desired to claim the rebate and is renewable on receipt of further application in Form XVIII with the prescribed fee Rs. 20. The next important provision is about limitation which fixes 30 days for filing the application after the commencement of the year for which the grant of the renewal of the certificate is asked for. The certificate is liable to cancellation in the event of infringement of any of the rules or the provisions of the Act, and a dealer must comply with the aforesaid formalities in order to enable him to claim the benefit of section '8. 'Rule 26 requires the application to be in Form XIX and within 30 days of the close of the year in which the commodities were delivered outside the State, and by Sub-rule (2) the assessing authority is required after satis-fying himself about the claim being in order and the rebate to be admissible to adjust the amount of the rebate at the time of the final assessment under Rule 14. It is therefore clear that the Act and the rules do not exclude a return to the dealer of an amount paid into the treasury should at the time of the final assessment his liability be found not to be what was provisionally estimated. The petitioner's learned Advocate, however, has emphatically denied the right to claim back any amount collected by the dealer as the 'tax and has rested his argument mainly on Section 11(2) which is in these-words :-

Every person who has collected or collects any amount by way of tax under this Act on or after the date prescribed under 'the proviso 'to sub-clause (1) shall pay over to State Government all amounts so collected by him if they are in excess of the tax, if any, paid by him for the period during which the collections were made; and in default of such payment, the amounts may be recovered as if they were arrears of land revenue.

4. He has urged that rebate given by Section 8 means reduction of such liability as is still not discharged and where money comes in the hands of the dealer as tax from his sales, the amount must be passed on to the Government under Section 11(2). We do not think the (provisions on which so much reliance has been placed exclude the claim for the return of the tax amount under the benefit especially conferred by the Act on a dealer. Sub-section (2) of Section 11 affirms the liability to surrender what has been collected for the Government by the dealer, and is but a particular application of the rule that persons in fiduciary positions must not use their positions to their own advantage. The dealer under the Act is just an agent of the Government with a statutory duty, and therefore must not use his position for his own advantage. But the rule against taking advantage of the fiduciary position has never been extended to exclude the benefit especially conferred by the instrument creating the trust. Therefore we think the sub-section was never intended to deprive a dealer of the benefit especially conferred on him by the Act, and thus defeat the object for which the rebate has been provided. Section 8 permits a dealer the rebate in order to induce him to follow a particular conduct whose consequences would result in benefit to the State, and that object would not be achieved if the benefit were to be withheld after the dealer had done what the enactment had required him to perform. It would be no answer to the aforesaid objection that the dealer would not get the benefit when he had so paid the tax, for neither the benefit under Section 8 is so qualified nor the liability for the provisional assessment. We therefore think the direction under Section 11(2) does not preclude a dealer from getting the benefit. In order to become entitled to the benefit there must be sales of goods, there must be delivery of such goods, and both must be outside the State. The third requirement is that the sale and delivery must be of finished articles of industrial manufacture and must be notified earlier by the Government. Therefore where a manufacturer sells and delivers such articles the dealer becomes entitled to a rebate of half the tax on the sale.

5. The petitioner's learned Advocate has drawn our attention to the definition of 'rebate' in the Dictionary of English Law by Jewitt. That word has been defined at page 1480 to mean:

Rebate, discount; reducing the interest of money in consideration of prompt payment or otherwise ; a deduction made from a payment.

6. He has further relied on Black's Law Dictionary, Second Edition, where the word is given to mean as follows:

Rebate. Discount; reducing the interest of money in consideration of prompt payment. Also a deduction from a stipulated premium on a policy of insurance, in pursuance of an antecedent contract. Also a, deduction or drawback from a stipulated payment, charge, or rate (as a rate for the transportation of freight by a railroad) not taken out in advance of payment, but handed back to the payer after he has paid the full stipulated sum.

7. It would be also useful to have before us how Corpus Juris Secundum defines the word, where the most important part of the definition is given thus :

The etymological or dictionary meaning of the term includes any discount or deduction from a stipulated payment, charge, or rate not taken as in advance of payment, but handed back to the payer after he has paid the stipulated sum, even when such discount or deduction is equally applied to all from whom such payment is demandable.

8. We think rebate means relinquishing part of the liability by a person entitled to with a view to persuade a person liable to follow a particular conduct which such person was not otherwise compelled. That being the gist of the definition, we think to withhold it where payment had already been made, and confer it where payment is to be made, would not be a proper interpretation of the section. On the other hand, following the particular conduct would be essential for getting the benefit, and in this context we do not think the provisions of Section 11 (2) would be attracted, so as to preclude a dealer from claiming the benefit. The learned Advocate has also relied on the definition of the word 'levy' in Firm L. Hazari Mal v. Income-tax Officer, Ambala [1956] 30 I.T.R. 500, but we do not think the definition of the word 'levy' in that case can be of use in construing the word 'rebate' in Section 8. It follows therefore that this revision petition is dismissed with costs, and the order of the Tribunal is upheld. We fix the Counsel fee at Rs. 150.


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