Power to impose or collect tax.

Balakrishna Ayyar, J.-

The questions for determination in all these three writ petitions are the same; and, we shall therefore deal with them together.

The relevant facts are these. The Rayalseema Constructions, who is the petitioner in Writ Petition Nos. 91 and 142 of 1957, is a firm of construction engineers. For the year 1951-1952 the firm was assessed under the Madras General Sales Tax Act, 1939, on a gross turn-over of Rs. 2,23,174-10-0 as on “works contracts”. The Order of assessment was made on 25th March, 1953, and, it was then determined that a sum of Rs. 2,440-15-7 was payable by the firm. Deducting the payments made by the firm a balance of Rs. 775-15-9 remains due in respect of this assessment. For the year 1952-1953, the gross turnover of the firm was computed to be Rs. 2,54,666-13-9 and the assessment was made in a sum of Rs. 2,785-6-9. Deducting the various payments made by the firm a sum of Rs. 1,725-09 remains due in respect of this assessment.

The Department demanded payment of these sums amounting to Rs. 2,501-6-4. By that time this Court had held in Gannon Dunkerlay (Madras), Ltd. v. The State of Madras1, that " works contracts " did not involve any element of sale of materials and that therefore the levy of sales tax in respect of those materials was unlawful. The petitioner pointed this out to the Commercial Tax Officer on 3rd August, 1954. Nothing happened for a long time. But, on 26th November, 1956, the Deputy Commercial Tax Officer wrote to the petitioner that he had been directed to take steps to collect this arrear under the Revenue Recovery Act, and, in view of that, he called upon the petitioner to pay up this amount. The subsequent representations which the petitioner made to the appropriate authorities proved of no avail. The petitioner has therefore come to this Court, for the issue of a writ of mandamus or other suitable direction, to the Deputy Commercial Tax Officer, Mannady Division, Madras 1, requiring him to forbear from collecting these amounts.

The petitioner in Writ Petition No. 270 of 1957 is a firm of tanners belonging to Vaniyambadi, which held a licence under the Madras General Sales Tax Act In an order which he had made on 31st March, 1955, the Deputy Commercial Tax Officer found that the total turn-over of the firm was Rs. 3,83,883-7-9. Of this only a sum of Rs. 5,787-12-0 represented the value of purchase made inside the State of Madras. The balance of Rs. 3,78,095-11-9 was the value of untanned hides and skins which the petitioner firm had purchased outside the State of Madras. The Deputy Commercial Tax Officer exempted a sum of Rs. 32,314 representing the value of untanned hides and skins which were sold as such by the petitioner firm and assessed the petitioner on the balance of Rs.3,45,761-11-9.

This Court held in Hajee Abdul Shukoor &38; Co. v. State of Madras2that:

" Under rule 16 (3) (i) it is only the sale of untanned hides and skins by a licensed dealer to a licensed tanner who tans the same that gives rise to a tax liability. Purchases of untanned hides and skins by tanners from persons other than licensed dealers are not within the taxing provision.

Therefore in computing the purchase turn-over of a licensed tanner only the sales to him from licensed dealers could be included."

In view of this decision the petitioner firm filed an appeal to the Commercial Tax Officer on 21st February, 1956. But he dismissed the appeal on the ground that it was barred by time. The further appeal to the Sales Tax Appellate Tribunal also failed for the same reason. In these circumstances, the petitioner has come to this Court for the issue of an appropriate writ to prohibit the State of Madras recovering the amount from the petitioner.

The case for the petitioners is that since it has now been established by the decision in Gannon Dunkerley (Madras), Ltd. v. The State of Madras1, so far as Works contracts " are concerned, and by the decision in Hajee Abdul Shukoor &38;Co. v. State of Madras2, in

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