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SUPREME COURT OF INDIA
K. SUBBA RAO, J.C. SHAH AND S.M. SIKRI, JJ.
State of Kerala, Appellant
Versus
N. Sami Iyer, Respondent.
Civil Appeal No. 490 of 1964.
Advocates appeared
Dr. V. A. Seyid Muhammed, Advocate General for the State of Kerala, (Mr. M. R. Krishna Pillai, Advocate, with him), for Appellant; M/s. Arun B. Saharya and Sardar Bahadur, Advocates, for Respondent.
SALES TAX - Turnover - Liability to tax - Purchase of goods already taxed at purchase point under Madras Act - Subsequent sale of goods in Kerala - Whether liable to tax under Kerala Act - Madras General Sales Tax Act (9 of 1939), S. 3(5) - Travancore-Cochin General Sales Tax (Amendment) Act (12 of 1957), S. 26-A, Sch. II - General Sales Tax Act (11 of 1125), S. 3(5), 5(vii), Sch. I, Item 2.
Fact of the Case:
The assessee, a dealer in tobacco, objected to the assessment of turnover for the assessment year 1957-58, contending that the goods were already taxed at the purchase point under the Madras General Sales Tax Act (9 of 1939). The High Court accepted his contention and held that the turnover was not liable to tax.
Finding of the Court:
The court held that the assessee had a right not to be taxed again in respect of any sale of goods which had been the subject-matter of a purchase and taxation under the Madras Act. The court found no intention in the Travancore-Cochin General Sales Tax (Amendment) Act (12 of 1957) to destroy the rights and liabilities acquired or incurred under the Madras General Sales Tax Act.
Issues: Whether the assessee had a right not to be taxed again in respect of any sale of goods which had been the subject-matter of a purchase and taxation under the Madras Act.
Ratio Decidendi: The court held that the assessee had a right not to be taxed again in respect of any sale of goods which had been the subject-matter of a purchase and taxation under the Madras Act. The court found no intention in the Travancore-Cochin General Sales Tax (Amendment) Act (12 of 1957) to destroy the rights and liabilities acquired or incurred under the Madras General Sales Tax Act.
Final Decision: The court dismissed the appeal and held that the turnover of Rs. 7,757.54 was not liable to taxation.
Judgement
SIKRI, J.: This appeal by special leave is directed against the judgment of the High Court of Kerala in Tax Revision Case No. 44 of 1960.
2. The respondent, N. Sami Iyer, hereinafter referred to as the assessee, is a dealer in tobacco. He objected to the assessment of the turnover of Rs. 7,757.54 for the assessment year 1957-58, inter alia, on the ground that the goods were the subject-matter of purchases which had already been assessed at the point of purchase in the hands of the assessee. He failed before the Sales Tax Authorities, but in a revision the High Court accepted his contention and held that this turnover was not liable to tax.
3. In order to appreciate the contention of the appellant it is necessary to mention a few facts. During the period April 1, 1957 to September 30, 1957, the assessee was residing in Malabar and in this area the Madras General Sales Tax Act (9 of 1939) applied. Section 3(5) of this Act provides:
The taxes under sub-sections (1), (1-A) and (2) shall be assessed, levied and collected in such manner and in such instalments, if any, as may be prescribed :
Provided that-
(i) In respect of the same transaction of sale, the buyer or the seller, but not both, as determined by such rules as may be prescribed, shall be taxed;
(ii) Where a dealer has been taxed in respect of the purchase of any goods in accordance with the rules referred to in Cl. (1) of this proviso, he shall not be taxed again in respect of any sale of such goods effected by him.
It is common ground that tobacco was taxable at the purchase point under the Madras Act and that the turnover with which we are concerned has suffered taxation at that point under the Madras Act.
4. The Travancore-Cochin General Sales Tax (Amendment) Act, 1957 (12 of 1957) came into force on October 1, 1957. This Act changed the short title of the Travancore-Cochin General Sales Tax Act, 1125 (11 of 1125) to the General Sales Tax Act, 1125, and extended it to the whole of the State of Kerala, including Malabar District. Section 14 of Act 12 of 1957 inserted S. 26-A in Act 11 of 1925 which reads as follows:
26-A. Transitory provisions.- (1) In the application of this Act to the Malabar District referred to in sub-section (2) of S. 5 of the States Reorganisation Act, 1956, during the financial year ending with 31st March, 1958, the provisions of this Act shall be subject to the provisions contained in Schedule. II.
(2) The Government may from time to time by notification in the Gazette add to, alter or cancel Schedule II.
Schedule II is in the following terms :
1. Every registration effected and every licence issued under the Madras General Sales Tax Act, 1939 or the rules made thereunder in their application to the Malabar District referred to in sub-section (2) of S. 5 of the States Reorganisation Act, 1956 (hereinafter referred to as the Malabar area), and in force at the commencement of the Travancore-Cochin General Sales Tax (Amendment) Act, 1957, shall be deemed to have been effect or issued under this Act or the rules made thereunder.
2. In calculating the total turnover for the financial year ending with 31st March 1958 of a dealer in the Malabar area for purposes of sub-section (3) of S. 3 of this Act, the turnover of the dealer under the Madras General Sales Tax Act, 1939 up to the commencement of the Travancore-Cochin General Sales Tax (Amendment) Act, 1957, shall also be taken into account...
5. The effect of S. 26-A and the Schedule, among other things, is that the dealer s registration and the licences are deemed to have been effected under this Act, and secondly, that the total turnover for the period April 1, 1957 to September 30, 1957, is to be taken into account under the General Sales Tax Act.
6. Act 12 of 1957, by S, 15 inter alia repealed the Madras General Sales Tax Act, 1939, as in force in the Malabar District, referred to in sub-section (2) of S. 3 of the States Reorganisation Act, 1956. Section 3(5) of the General Sales Tax Act, 112
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