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1972 Supreme(MP) 109
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BISHAMBHAR DAYAL, S.M.N. RAINA, JJ.
J.A. Trivedi Bros
Vs.
Commissioner of Sales Tax, M.P., Indore
M.C.C. No. 127 of 1965
Decided On: 04.09.1972
For Appellant/Petitioner/Plaintiff: C.J. Thakkar, A.L. Halve and N.J. Thakkar
For Respondents/Defendant:Y.S. Dharmadhikari, Advocate General and J.P. Bajpai, Deputy Advocate General
Headnote:(1) Sales Tax - Sales Tax Act, 1947 (C.P. & Berar) - S. 2 (j) (a) (ii) - declaration by dealer as to resale - resale not confined to sales within the State - later amendment in the provision - cannot be read into the un-amended provision.
Section 2 (j) (a) (ii) as it stood before amendment and rule 26 required that if the dealer gives a declaration in the prescribed form, the sale is not to be included in his turnover. Taxing statutes have to be construed strictly in favour of the assessees. It cannot be urged by the department that although the language merely states that a declaration has to be given by dealer to the effect that the purchase has been made for resale by him, the real intention of the section was that exemption could be granted if the purchasing dealer had purchased the goods for resale by him in the State of Madhya Pradesh for the purposes of consumption in this State. 12 STC 169 dissented from. [Para 4
The subsequent amendment to this effect cannot be read by implication into the language as it previously stood. [Para 6
(2) Constitution of India - Art. 286 (1) (b) - sale 'in the course of export' - meaning of - should be in the fulfillment of the contract of sale.
For bringing a sale within the term ‘in the course of export’, it is necessary that if must be under the contract that the goods started moving so that the terms of the contract would not be fulfilled if the goods were not exported. It may be a fact that the purchasers had purchased the goods for the purpose of export and had actually exported the goods, but that was the volition of the purchasers and not in fulfillment of the contract, and hence the sale was not in the course of export. [Para 10
(3) Sales, Tax - Sales Tax Act, 1947 (C.P. & Berar) - S. 22 - assessment under the Central Sales Tax nil - but observations that he is liable under the State Act - appeal lies - Tribunal may refuse to withdraw appeal. [Para 15
BISHAMBHAR DAYAL, C.J.
This judgment shall also govern the disposal of Misc. Civil Cases Nos. 38, 39, 40 and 128, all of 1965 and No. 88 of 1968.
These six references under section 44 of the M. P. General Sales Tax Act arise out of sale transactions by the same party, M/s J. A. Trivedi Brothers, who are the owners of some collieries and manganese mines. Misc. Civil Case No. 127 of 1965 relates to sales during the period 1st April 1951 to 31st March 1952. Six questions were referred. But learned counsel appearing for the applicant has not pressed questions Nos. 3 to 6. Only questions 1 and 2 have to be answered. They are as follows:
1. Whether, in the facts and circumstances of the case, the declarations furnished by the applicant in respect of the sales amounting to Rs.1,78,346 were valid for the purpose of deduction under section 2 (j) (a) (ii) of the old Act ?
Whether, in the facts and circumstances of the case, the sales of manganese to M/s Sepulchre Brothers amounting to Rs.8,23,298-1-6 and to F. Dupre Ltd. amounting to Rs. 59,709-5-6 were in the course of export for the purpose of Article 286(1)(a) of the Constitution and, therefore, not liable to tax under the old Act ?
Misc. Civil Case No. 128 of 1965 relates to sales during the period 1st April 1952 to 31st December 1952. In this case four questions have been referred. But questions Nos. 3 and 4 have not been pressed by learned counsel for the assessee and only questions Nos. I and 2 have to be answered which are as follows:
1. Whether, in the facts and circumstances of the case, the declarations furnished by the applicant in respect of the sales amounting to Rs.58,820-15-2 were valid for the purpose of section 2 (j) (a) (ii) of the old Act ?
Whether, in the facts and circumstances of the case, the sales of manganese to M/s Sepulchre Brothers amounting to Rs. 20,86,929-5-6, to M/s F. Dupre Ltd. amounting to Rs. 4,22,709-4-6, to M/s Pacific Minerals amounting to Rs. 62,867-3-0 and to M/s Natwarlal Shamaldas amounting to Rs. 81,995-0-6 were in the course of export for the purpose of Article 286(1)(b) of the Constitution and, therefore, not liable to tax under the old Act ?
Misc. Civil Case No. 39 of 1965 relates to sales during the calendar year 1953. In this case six questions have been referred but only questions Nos. 3 and 4 have been pressed by learned counsel for the assessee. Questions Nos. 1, 2, 5 and 6 have not been pressed. Questions Nos. 3 and 4 are as follows:
3. Whether the sales of manganese to these four parties were in the course of export outside India and, therefore, came under Article 286(1)(b) of the Constitution and were consequently, not liable to tax under the old Act ?
Whether, in the facts and circumstances of the case, the sales of coal amounting to Rs. 1,04,788-9-0 were intra-State sales or were outside sales as contemplated under Article 286(1)(a) of the Constitution read with the Explanation thereto of sales in the course of inter-State trade and commerce coming under Article 286(2) of the Constitution and, therefore, exempt from the tax under the old Act ?
Misc. Civil Case No. 40 of 1965 relates to the transactions during the calendar year 1954. Six questions were referred in this case also. Only questions Nos. 4 and 5 have been pressed. Other questions have not been pressed. Questions Nos. 4 and 5 are as follows:
4 Whether the sales of manganese to these four parties were in the course of export outside India and, therefore, came under Article 286(1)(b) of the Constitution and were consequently, not liable to tax under the old Act ?
Whether, in the facts and circumstances of the case, the sales of coal amounting to Rs. 95,899-6-10 were intra-State sales or were outside sales as contemplated under Article 286(1)(a) of the Constitution read with the Explanation thereto or sales in the course of inter-State trade and commerce coming under Article 286(2) of the Constitution and, therefore, exempt from tax under the old Act ?
Misc. Civil Case No 38 of
