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Jayanthilal and Bros. Vs. Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax and anr. - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtKerala High Court
Decided On
Case Number O.P. Nos. 554, 554A, 554B and 554C of 1960
Judge
Reported in[1961]12STC245(Ker)
AppellantJayanthilal and Bros.
RespondentAppellate Assistant Commissioner of Agricultural Income-tax and Sales Tax and anr.
Appellant Advocate C.K. Viswanatha Iyer, Adv.
Respondent AdvocateThe Government Pleader
Disposition Petition allowed
Cases ReferredUnion Leather Company v. State of Madras
Excerpt:
- state financial corporation act, 1951[c.a. no. 63/1951. sections 29 & 31: [k.s. radhakrishnan, thottathil b. radhakrishnan & m.n. krishnan, jj] recovery of loan amount held, once industrial concern commits default in repayment of the loan or advance made by the financial corporation and under a liability, the right of the corporation to invoke section 29 of the act accrues and it is open to the corporation to realise the entire loan advanced to the industrial concern not only from the properties of the industrial concern but also from the properties pledged or mortgaged b y the sureties for the loan advanced by the corporation. section 29 is a complete code by itself. liability of principal-debtor and surety is always joint and co-extensive. [n. narasimhaiah v karnataka state..........in each of these years, and that those assessments cover the entire turnover of all the non-resident principals of the petitioner. his contention is that such omnibus assessments are not warranted by the act, and that they should be quashed by appropriate writs or directions from this court under article 226 of the constitution.2. the contention on behalf of the state is that such assessments are proper and are justified by section 18 of the general sales tax act, 1125. that section reads as follows :-in the case of any person carrying on the business of buying or selling goods in the state but residing outside it (hereinafter in this section referred to as a 'non-resident'), the provisions of this act shall apply subject to the following modifications and additions, namely :- (i).....
Judgment:

M.S. Menon, J.

1. These petitions are directed against the assessment of the petitioner to sales tax under the General Sales Tax Act, 1125, in respect of the years 1952-53, 1953-54, 1954-55 and 1955-56. It is common ground that there is only one assessment in each of these years, and that those assessments cover the entire turnover of all the non-resident principals of the petitioner. His contention is that such omnibus assessments are not warranted by the Act, and that they should be quashed by appropriate writs or directions from this court under Article 226 of the Constitution.

2. The contention on behalf of the State is that such assessments are proper and are justified by Section 18 of the General Sales Tax Act, 1125. That section reads as follows :-

In the case of any person carrying on the business of buying or selling goods in the State but residing outside it (hereinafter in this section referred to as a 'non-resident'), the provisions of this Act shall apply subject to the following modifications and additions, namely :-

(i) In respect of the business of the non-resident, his agent residing in the State shall be deemed to be the dealer.

(ii) The agent of a non-resident shall be assessed to tax or taxes under this Act at the rate or rates leviable thereunder, irrespective of the business of such non-resident in which the agent is concerned, irrespective of the amount of the turnover of such business being less than the minimum specified in Section 3, Sub-section (3).

(iii) Without prejudice to his other rights, any agent of a nonresident who is assessed under this Act in respect of the business of such non-resident may retain out of any money payable to the non-resident by the agent, a sum equal to the amount of the tax or taxes assessed on or paid by the agent.

(iv) Where no tax would have been payable by the non-resident in respect of his business in the State by reason of the turnover thereof being less than the minimum specified in Section 3, Sub-section (3), he shall be entitled to have the amount of the tax or taxes paid by his agent, refunded to him on application made to the assessing authority concerned, or where more than one such authority is concerned, to such one of the authorities as may be authorised in this behalf by Government by general or special order.

(v) Such application shall be made within twelve months from the end of the year in which payment was made by or on behalf of the non-resident of the tax or taxes or any part thereof.

3. Section 14-A of the Madras General Sales Tax Act, 1939, corresponds to Section 18 of the General Sales Tax Act, 1125. In India Coffee and Tea Distributing Co., Ltd., Madras v. State of Madras [1958] 9 S.T.C. 769 the Madras High Court dealt with Section 14-A as follows :-

It is clear from the provisions of this section that it is really the non-resident principal that is assessed to tax and the agent is deemed to be a dealer in respect of his business as a convenient representative for assessment, levy and collection of the tax. The assessment is with reference to the sales on the principal's account and the rates of tax are those applicable to him. The agent is given a statutory right to retain moneys of the principal in his hands a sum equal to the tax assessed or paid. Under Section 14-A (ii) the agent is made liable to pay the tax irrespective of the fact whether the amount of turnover of the business was less than the minimum specified in Section 3(3) or not. In case the turnover happens to be less than the minimum specified in Section 3(3) the principal is given a right to obtain a refund under Section 14-A(iv)

And quoted with approval the following passage from an earlier decision of that Court regarding the scope of the legal fiction created by the section :-

The turnover of the agent dealer is the aggregate of the prices realised by the sales of the commodities belonging to the principal. This agent might be acting for several principals. He is deemed to be 'as many dealers' as there are 'non-resident principals' for whom he is dealing.

It should be axiomatic that there must be 'as many assessments' as there are 'non-resident principals'.

4. There can be no doubt that Section 18 does not permit any assessment of the type before us, and that there must be as many separate assessments as there are non-resident principals. To approximate, as the learned Government Pleader has done, a single assessment of the whole turnover of a dealer in respect of all the commodities in which he deals to a single assessment of the whole turnover of all the non-resident principals for whom the assessee acts will be to do violence to the provisions of the section and the fiction it has created.

5. The learned Government Pleader drew our attention to Union Leather Company v. State of Madras [1960] 11 S.T.C. 318. We are unable to see anything in that decision which militates against the conclusion we have reached.

6. It follows that the assessments impugned in these petitions have to be quashed. We do so.

7. Various other contentions are raised in these petitions. It is unnecessary to consider them in this judgment and they are left open for future determination.

8. We make it clear that the quashing of the assessments will not preclude the Department from making fresh assessments according to law. It was agreed that if and when such assessments are made no question of 'limitation will be raised and we must record that the said agreement has influenced us in interfering at this stage without leaving the petitioner to his normal remedies under the 'Act by way of appeal and revision.

9. The petitions are allowed as above. No costs.


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