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M.A. Khader and Co. Vs. Deputy Commercial Tax Officer, Periamet Division - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberWrit Petition Nos. 2577 to 2580 of 1965 and C.M.P. Nos. 11113 to 11115, 12074 to 12083 and 16236 to
Judge
Reported in[1970]25STC104(Mad)
AppellantM.A. Khader and Co.
RespondentDeputy Commercial Tax Officer, Periamet Division
Appellant AdvocateM.R.M. Abdul Kareem and ;P.M. Jummakhan, Advs.
Respondent AdvocateS. Mohan, Assistant Government Pleader
DispositionPetition dismissed
Cases ReferredTilokchand Motichand v. Munshi
Excerpt:
.....meaning that there is an assimilation of both the procedural and substantive law as stated in the local state law in the central act as well, in so far as it applied to declared or specified goods. so far as the goods mentioned in schedule 1 are concerned, their sales are liable to levy both under the state act as well as the central act. ..the single point scheme of taxation cannot be taken in the abstract but has to be understood in the light of the statutory provisions both in the central act as well as the state act. when so understood, the entitlement to refund of the local tax cannot be projected by the dealer like the petitioner who effected the posterior inter-state sale, for the reason that he cannot be classified as the person who suffered the local levy under the local act..........respondent under the central sales tax act, 1956, in respect of transactions which are admittedly inter-state sales. the admitted facts may now be noticed. the assessee is a dealer in tanned hides and skins. for the assessment years 1958-59, 1959-60, 1960-61 and 1961-62 he returned a net turnover of varied amounts which admittedly related to inter-state sales exigible to tax under the central sales tax act, 1956. the first respondent by his orders made thereon for the respective assessment years brought to tax such a turnover as being liable under the central sales tax act and finally levied the tax due and as found by him. the impugned orders in the main writ petitions were passed on 31st may, 1960, for the assessment year 1958-59, 13th march, 1961, for the assessment year 1959-60,.....
Judgment:

Ramaprasada Rao, J.

1. In W. Ps. Nos. 2577 to 2580 of 1965, the petitioner seeks in the main for a writ of certiorari to quash the assessment orders made by the respondent under the Central Sales Tax Act, 1956, in respect of transactions which are admittedly inter-State sales. The admitted facts may now be noticed. The assessee is a dealer in tanned hides and skins. For the assessment years 1958-59, 1959-60, 1960-61 and 1961-62 he returned a net turnover of varied amounts which admittedly related to inter-State sales exigible to tax under the Central Sales Tax Act, 1956. The first respondent by his orders made thereon for the respective assessment years brought to tax such a turnover as being liable under the Central Sales Tax Act and finally levied the tax due and as found by him. The impugned orders in the main writ petitions were passed on 31st May, 1960, for the assessment year 1958-59, 13th March, 1961, for the assessment year 1959-60, 30th November, 1961, for the assessment year 1960-61, and 14th August, 1962, for the assessment year 1961-62. The petitioner, however, relying upon State of Mysore v. Lakshminarasimhiah Setty and Sons1, contends that as Section 9 of the Central Sales Tax Act assimilates all the provisions of the Madras General Sales Tax Act in regard to single point taxation and other exemptions particularly in relation to declared goods and as the scheme of inter-State transaction is therefore made dependent upon local legislation and as the State law provides that such declared goods shall be assessed only at one particular point, no tax can therefore be levied under the Central Sales Tax Act on his last sale. According to the petitioner, he issued a lawyer's notice demanding the refund of the tax, which, according to him, was illegally levied and collected by virtue of the impugned orders referred to above. The petitioner would also contend that though the ratio in State of Mysore v. Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C. 231, confined itself to a period prior to 1st October, 1958, yet the same result ought to follow even for a period posterior thereto. It may be noticed that no fresh material was placed by the petitioner in support of his claim as he was content to rely upon the affidavits filed in the main in W.Ps. Nos. 2465 to 2468 of 1965 for the issue of a writ of mandamus, which were disposed of by this court on 13th October, 1965, and the decision in which is now reported in Khader & Co. v. State of Madras [1966] 17 S.T.C. 396. No doubt, a belated attempt in December, 1968, has been made by the writ petitioner to permit a further affidavit to be filed. This also has been noticed by us. In the supplemental affidavit the petitioner adds that Section 15 of the Central Sales Tax Act does not mandatorily indicate that the Central sales tax must be retained under all circumstances and that the local tax only has to be refunded. In the alternative it is stated, that if at all material times, the Central sales tax has to be retained and the local tax only has to be refunded, then such a provision offends articles 301 and 303 of the Constitution of India. The reason advanced is that invariably in the last inter-State sale the turnover is bound to be greater and therefore the burden is higher and hence it impedes free flow of inter-State trade and commerce. It is also urged that Section 15 of the Central Sales Tax Act is defeated by Rule 23 of the Madras General Sales Tax Rules. Reliance is also placed on G.O.Ms. No. 1467, dated 21st May, 1964, by which similar dealers are executively obtaining refund of Central sales tax on an ad hoc basis.

2. The broad questions springing from the pleadings and the contentions of the parties in these proceedings are common.

3. It is not disputed that the goods in question are declared goods. The scheme of taxation adumbrated in the Madras General Sales Tax Act, 1959, having been assimilated for purposes of imposition of sales tax in case such goods are involved in subsequent inter-State sales, it is clear that the provisions of the State law necessarily have to be looked into to consider and adjudicate upon the fact whether sales tax is attracted on relative inter-State transactions. Though it was felt at one time that the phrase 'in the same manner' in Section 9(3) did not make applicable all the incidents of the local sales tax law to the assessment under the Central Sales Tax Act (vide Mariappa Nadar v. State of Madras [1962] 13 S.T.C. 371, yet it is now established by the dicta of the Supreme Court in State of Mysore v. Lakshminarasimhiah Setty and Sons [1905] 16 S.T.C. 231 that there is no reason why the Central Act made a departure in the manner of levy of tax on the specified goods which are taxed only at a single point under the State Act; if any such radical departure was intended, the Central Act would have expressly stated so. The Supreme Court thus explained the phrase 'in the same manner' as meaning that there is an assimilation of both the procedural and substantive law as stated in the local State law in the Central Act as well, in so far as it applied to declared or specified goods. In that case, however, the impact of Section 15 was not noticed, as the turnover therein related to a period prior to 1st October, 1958.

4. It is convenient to note at this stage the changes effected in the Central Sales Tax Act with particular reference to the introduction and application of Section 15 therein. The principal content of Section 15 of the Central Sales Tax Act, Section 4-A of the Madras General Sales Tax Act, and Rule 23 of the Madras General Sales Tax Rules, 1959, and Form A-4 prescribed therein to enable asscssees to claim refund of a tax paid on sales or purchases of goods specified in Section 4 of the local Act may also be noticed. Section 4 of the State Act dealing with what are terminologically called as declared goods specified in the Second Schedule to the Act lays down that the tax under the local Act shall be payable by a dealer on the sale or purchase inside the State of declared goods at the rate and only at the point specified in the Second Schedule on the turnover in such goods in each year, whatever be the quantum of turnover in that year. Section 14 of the Central Sales Tax Act, which is a reflection of Section 4 of the State Act, declares certain goods as being of special importance in inter-State trade or commerce in which is included hides and skins whether in a raw or dressed state. These are the goods with which we are concerned in these petitions. Section 15 of the Central Act had a chequered history. Though it formed part of Act 74 of 1956, yet it was not brought into force on 5th January, 1957, when the Central Act was ushered in. By several notifications, though dates were fixed for bringing Section 15 into force, yet they were from time to time not implemented. With the result, the operation of the section was withheld until 1st October, 1958. It would be apposite to note the content of Section 15 as amended by Act 16 of 1957. Inter alia it provided that no tax shall be levied in respect of the last sale or purchase inside the State if the declared goods purchased were intended for sale in the course of inter-State trade or commerce. But this amendment was for some reason not given effect to and the present section as it stands is the result of its final amendment by Central Act 31 of 1958. In its present form and as effective from 1st October, 1958, and in so far as it is relevant for our purposes, it is extracted :

Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely :-

(a)...

(b) where a tax has been levied under that, law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State.

5. On a reading of Section 15 of the Central Act it is clear that Section 15(b) postulates the levy of a local tax as also a Central tax on inter-State sales in relation to such goods, but with the condition that the tax levied by the State shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State. It is also clear from the text of Section 15 that it postulates an intra-State sale followed up by an inter-State sale and a refund to the person appointed for the purpose, of the local tax in case the Central sales tax also has been collected. Such real intendment and scope of Section 15(b) read with Section 4-A of the State Act has been lucidly considered by this court in Khader & Co. v. State of Madras [1966] 17 S.T.C. 396, to which my very learned brother Veeraswami, J., was a party, as under :

The scheme of these sections in the present context is this. So far as the goods mentioned in Schedule 1 are concerned, their sales are liable to levy both under the State Act as well as the Central Act. But in the case of declared goods mentioned in Schedule 2, though levies may be made under both the Acts, the levy under the State Act is liable to be refunded...in the case of declared goods the Central charge will prevail and the State tax should be refunded...applying the interpretation which found favour with the Supreme Court in State of Mysore v. Lakshminarasimhiah Setty & Sons [1965] 16 S.T.C. 231, we hold that, having regard to the special provisions under the Madras General Sales Tax Act, 1959, and Section 15 as it is in force today in the Central Aet, the charge under the Central Sales Tax Act is valid and the tax paid pursuant to it is not liable to be refunded....The single point scheme of taxation cannot be taken in the abstract but has to be understood in the light of the statutory provisions both in the Central Act as well as the State Act.

6. Mr. M.R.M. Abdul Kareem relied upon Gokak Mills Ltd. v. State of Mysore [1969] 23 S.T.C. 25, Laxmi Starch Factory Ltd. v. State of Kerala [1965] 16 S.T.C. 794 and K. Mohamed Elias & Co. v. State of Madras [1969] 23 S.T.C. 27. In the first two citations, the impact of Section 15 of the Central Sales Tax Act has not been considered. Reliance however was placed on State of Mysore v. Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C. 231. But with great respect to the Kerala and Mysore High Courts, their ratio overlooks the important fact that the Supreme Court in the case relied upon was concerned with transactions prior to the introduction of Section 15 as it stands now. In K. Mohamed Elias & Co. v. State of Madras [1969] 23 S.T.C. 27, it was not intended by us that no charge whatsoever is attracted at all. We confess that the purport of Section 15 of the Act was not noticed in the said decision. But we reiterate that, if the decision spotlights the contention that in the absence of synchrony, no tax is leviable, we regret to say that such was not our dicta nor was it intended to be so.

7. To implement the spirit of Section 15 of the Central Sales Tax Act, Section 4-A has been inserted in the Madras Act by Act 6 of 1963 and this was followed up by adding Rule 23 to the Madras General Sales Tax Rules on 10th February, 1964. Form A-4 was then prescribed as the form under which a request could be made to the assessing authority for the grant of refund of the tax paid under the local Act in respect of declared goods. The very form and the columns prescribed therein postulate the payment of Central sales tax on such declared goods for which refund is asked for. Such being the content of Section 15 of the Central Sales Tax Act, as also the purport of Section 4-A of the local Act and the Rules made therein, we are not inclined to issue the rule to quash the impugned orders on the ground that no such levy can be postulated. The orders having been passed within the limits of law and as envisaged by the relevant provisions of both the Central and local Acts are valid.

8. The incidental argument is that even if such a levy is comprehended, there is no rigid or inelastic provision compelling the retention of the Central tax and refund of the local tax only. This again ignores the scheme of the Central Sales Tax Act, particularly Section 15. Central Act 16 of 1957 gives a key to the solution. That Act sought to amend Section 15 of the Central Sales Tax Act as it then stood, though not enforced. There was an inhibition under that provision for a levy of local tax, if the goods were intended for sale thereafter, in the course of inter-State trade or commerce. But before this provision was enforced, Section 15 was once again amended. The present section projects a scheme whereby both the Central and State levies are plausible and the refund of the local tax alone envisaged. In the context of Section 15 and as explained by this court in Khader & Co. v. State of Madras [1966] 17 S.T.C. 396, the plea for the issue of the rule of certiorari to quash the impugned orders on the basis, as above, also fails.

9. As already noted, Section 15 enables the refund of the State tax to such person in such manner and subject to such conditions as may be provided in the State law. The prescription envisaged and imposed in Section 15(b) of the Central Act and Section 4-A of the State Act, being a condition precedent for the emergence of the right to refund, it becomes a necessary element for consideration, in the process. It would be imperative to find the import and content of the prescription and see whether it is effective and valid in a fiscal law. Intrinsically, it is clear that the person who is to apply for refund and who is entitled to such refund is the person who paid such tax by himself and that would be the person who paid the local tax. The very concept of refund implies in it the liability to pay tax. A mere economic incident is not implied in it. Therefore the person referred to in Section 15(b) of the Central Sales Tax Act read with Section 4-A of the local Act has to be understood in this context. When so understood, the entitlement to refund of the local tax cannot be projected by the dealer like the petitioner who effected the posterior inter-State sale, for the reason that he cannot be classified as the person who suffered the local levy under the local Act and as one who paid the same in consequence thereof. Only one situation can be postulated. If the declared goods are subject to the local tax at the point of purchase and if such purchaser who is to suffer the local tax himself effected an inter-State sale, then he might be entitled to the refund as prescribed above. This is susceptible of easy explanation for there is an identity, by accident, of the intra-State dealer and the inter-State dealer. If, however, there is no such identity, as it is so in the instant case, then the person who has suffered the local tax would be one different from the person who effected the inter-State sale. In such cases it would be unreasonable to hold, as contended, that the last dealer who sold the goods in the course of inter-State trade or commerce would be entitled to the refund when the law is otherwise.

10. If, however, Rule 23 and Form A-4 of the Madras General Sales Tax Rules are to be interpreted in the way contended, then it is against the letter and spirit of the principle of refund envisaged in Section 15(b) of the Central Sales Tax Act. But on a fair reading of Rule 23 read with Form A-4 it appears that the person who could apply for such refund is the person who effected the inter-State sale. We have already held that he is not entitled to make any such application for refund as he is not the person who paid the intra-State sales tax.

11. We shall now notice whether Rule 23 and Form A-4 prescribed therein achieve the purpose intended by Section 15 of the Central Sales Tax Act and Section 4-A of the local Act. Rule 23(1) reads :

Every dealer who claims a refund under Sub-section (1) of Section 4-A shall, within three months from the date on which the dealer paid the Central sales tax due on the transaction in respect of which he claims refund of the State sales tax, submit to the assessing authority a statement in Form A-4.

12. On a plain reading of the rule it appears to us that it is obligatory on the part of the dealer who paid the Central tax to claim refund of the State sales tax paid. This is but the very negation of the fundamental concept involved in refunds. It cannot be disputed that the assessee is not the person who paid the State sales tax. In common law, a person who paid a tax can only ask for refund, if he is statutorily entitled to it. It would be strange if the dealer who paid the Central sales tax is permitted to obtain a refund of the local tax which he did not pay. Even Form A-4 prescribed therefor appears to lend support to the view that it is the dealer who paid Central tax who is entitled to the refund of the State tax. It would result in unjust enrichment, if the rule is implemented and given effect to. Mr. M. R. M. Abdul Kareem contends that as the burden of State tax is to be presumed to have been borne by the assessee as the last buyer, the rule has to he accepted in its present form, as it is equitable. Equities and hardships are alien for consideration, while interpreting a taxing statute or the ancillary problems connected thereto. Thus we find that Rule 23 of the local Act which ought to prescribe the person entitled to refund, having wrongly prescribed and as the prescription is opposed to common law principles, Rule 23 of the local Act and consequently Form A-4 become inoperative and have to be held as illegal. The petitioner cannot therefore rely upon Rule 23 to obtain refund of the local tax either. It is unnecessary for us to consider the import and the legal incidents of G.O. Ms. No. 1467, dated 21st May, 1964, as it relates to an executive exemption granted by the State and as its repercussions, if any, do not strictly arise for consideration in these petitions.

13. Mr. Mohan, learned Assistant Government Pleader, rightly contends that in any event the petitioner is not entitled to the relief as the decision in W.Ps. Nos. 2465 to 2468 of 1965 would operate as res judicata. The decision therein is reported in Khader & Co. v. State of Madras [1966] 17 S.T.C. 396. It was held that in the case of declared goods, levies could be made both under the Central Act and the State Act. This court also noticed the Supreme Court's decision in State of Mysore v. Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C. 231. The decision was given on 13th October, 1965. Leave to appeal to the Supreme Court against the judgment was asked for and granted on 29th April, 1966. Apparently it was not pursued. Excepting for filing petitions for review of the judgment (which we shall presently consider), after the Supreme Court decided the case in State of Madras v. N. K. Nataraja Mudaliar [1968]22 S.T.C. 376, no steps were taken to canvass the correctness of the judgment in Khader & Co. v. State of Madras [1966] 17 S.T.C. 396. It has therefore become final. The ratio in that case that the activity of the assessee has to suffer the Central sales tax as well, as the goods admittedly entered the channel of inter-State trade, is final, conclusive and binding on the petitioner. As the general principle of res judicata is applicable to writ petitions also, the petitioner cannot succeed on this ground too.

14. The last contention of Mr. M. R. M. Abdul Kareem is that as the petitioner as an inter-State dealer has to shoulder a large burden of tax, the entire scheme offends articles 301 and 303 of the Constitution of India. The argument rests on the factual analysis that the turnover in the ultimate inter-State sale would be larger than that in the earlier sale or purchase inside the State. It is only to obviate the apparent difficulty and in keeping with the scheme of single point levy of tax on declared goods, Section 15 of the Act postulates refund of the State tax and retention of the Central tax. The mere fact that a larger turnover is at the end made exigible to tax, may be a hardship. But alleviation from tax due to hardships cannot be undertaken by courts while interpreting fiscal laws. Such a hardship, even if it is one, is not equatable to a restriction which directly or indirectly restricts or impedes trade, commerce and intercourse throughout the territory of India. Article 301 is therefore not offended. We are unable to appreciate how Section 15 offends article 303, which article emphasises 'the object of the Constitution-makers to safeguard the economic unity of the nation and to prevent discrimination between constituent States in the matter of trade and commerce.' We are not impressed that any restriction has been imposed by reason of Section 15 of the Act on inter-State trade.

15. The petitioner having failed on all the points urged by him, the writ petitions are dismissed with costs. Counsel's fee Rs. 250 in each.

16. C.M.Ps. Nos. 12074 to 12083 and 16236 to 16273 of 1968 :-We shall now take up the Civil Miscellaneous Petitions filed by various petitioners to excuse the delay in filing applications for review of the judgment of this court rendered on 13th October, 1965, 10th January, 1966, and 13th December,1965. In fact the judgments dated 13th December, 1965, and 10th January,1966, follow the judgment given on 13th October, 1965. This is reported in Khader & Co. v. State of Madras [1966] 17 S.T.C. 396. We have observed that the judgment in Khader & Co. v. State of Madras [1966] 17 S.T.C. 396 has become final and the petitioners therein did not take up the matter further to the Supreme Court though they intended to and indeed were permitted to do so. The present group of petitions are to excuse the delay in filing the relative review petitions, which have not yet been numbered. The petitioners are guilty of undue and unexplained delay. They have not acted with reasonable diligence and promptitude. The only excuse given in the affidavit is that the decision in State of Madras v. N. K. Nataraja Mudaliar [1968] 22 S.T.C. 376 was rendered by the Supreme Court on 18th April, 1968, and hence their belated applications for review ought to be entertained. Apart from the merits, which the review petitioners have none, it is no doubt true that this court has the power to review even judgments given under article 226, for the sole purpose of avoidance of miscarriage of justice and to correct its palpable errors. We have held in Mohamedaly Sarefaly & Co. v. Income-tax Officer : [1968]69ITR807(Mad) :.certain broad principles have to be inevitably followed by courts in exercise of the jurisdiction. One of them is that a party who comes to court asking for a particular relief in relation to the particular subject-matter must state all facts and circumstances and urge all the grounds on which he seeks relief and failure to do so either by negligence or oversight cannot be an excuse for starting of a litigation all afresh.

17. In the instant cases, the omission to assert, rights, as is now attempted, taken in conjunction with the inordinate delay in filing the applications for review and the consequential prejudice to the opposite side, exposes the latches of the petitioners. We are satisfied that the petitioners, who are guilty of such latches, have not shown or given any reasonable excuse or sufficient cause for excusing the delay ranging over years. The following excerpts from a luminary judgment of the Supreme Court finally spoken to by Hidayatullah, C.J., in Tilokchand Motichand v. Munshi (W.P. 53/68) [1969] 23 S.T.C. Short Notes 1 are instructive and apposite :

I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the court at the earliest possibletime and explain satisfactorily all semblance of delay....The petitioner moved the High court for relief on the ground that the recovery from him was unconstitutional. He set out a number of grounds but did not set out the ground on which ultimately in another case recovery was struck down by this court. That ground was that the provisions of the Act were unconstitutional. The question is : can the petitioner in this case take advantage, after a lapse of a number of years, of the decision of this court He moved the High Court but did not come up in appeal to this court. His contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within his knowledge and therefore he did not know of it and pursue it in this court. To that I answer that law will presume that he knew the exact ground of unconstitutionality. Everybody is presumed to know the law. It was his duty to have brought the matter before this court for consideration. In any event, having set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than he in his turn got the statute declared unconstitutional, and got a favourable decision. If I were to hold otherwise, then the decision of the High Court in any case once adjudicated upon and acquiesced in may be questioned in a fresh litigation revived only with the argument that the correct position was not known to the petitioner at the time when he abandoned his own litigation.

18. The civil miscellaneous petitions for excusing the delay in filing the applications for review of the earlier judgments of this court are therefore dismissed with costs. Advocate's fee Rs. 35 in each.

19. C.M.Ps. Nos. 11113 to 11115 of 1968 :- These civil miscellaneous petitions by the State also deserve to be dismissed. Apart from the question of delay there is no substance in these applications. A long drawn process of reasoning on which there may be two views, is sought to be placed before us, to prompt us to review our earlier judgment dated 30th January, 1968. In that judgment we settled the formula for refund of local tax in so far as the transactions therein covered the period prior to 1st October, 1958. We have however made it clear in our judgment in these proceedings, as to when and how refund of local tax has to be ordered. The principles set out by us and the indications given are sufficiently exhaustive. It is no longer necessary for us to review our judgment dated 30th January, 1968. In the absence of any allegation about discovery of new or important matter, nor about a mistake apparent on record, the applications for review are not even maintainable. They are dismissed with costs Rs. 35 in each.


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