ORDER
E. Padmanabhan, J.
1. The petitioner, Kanyakumari District Planters Association, has prayed for the issue of a writ of mandamus directing the respondents herein, including their officers and agents, to forbear them from calling upon the members of the petitioner’s association to take out registration as dealers under Section 7 read with Section 2(b) of the Central Sales Tax Act, 1956 by placing reliance on the provisions of the amendment to Section 2(r) of the General Sales Tax Act, 1959.
2. Heard Mr. K.C. Rajappa, learned counsel for the petitioner and Mr. S.V. Radhakrishnan, learned Government Advocate (Sales Tax) appearing for the respondents.
3. It is being rightly pointed that though there is an amendment with respect to the definition of “turnover”, namely, Section 2(r) of the Tamil Nadu General Sales Tax Act, 1959, there is no corresponding amendment to the Central Sales Tax Act, This factual position is admitted by the learned Government Advocate appearing for the respondents.
4. It is true that in a decision reported in Kanyakumari District Planters Association v. Deputy Commercial Tax Officer [1998] 108 STC 31, this Court held that growers of rubber can be called upon to register themselves as dealers under the provisions of the Tamil Nadu General Sales Tax Act. This Court further held that mere registration itself, would not be a decisive of the fact that the turnover is exigible to tax under the Act and burden of proof that the dealer was carrying on the business of selling or supply would be upon the sales tax authorities.
5. In a decision reported in Arasu Rubber Corporation Limited v. State of Tamil Nadu [1999] 113 STC 288 a division Bench of this Court, while considering the tax case, on the facts of the said case remanded the matter to find out whether the petitioner in such case is carrying on business after due consideration of relevant facts and the assessing officer shall abide by an order of the assessment subject to its right of appeal. In the course of discussion, the division Bench held that the courts have clearly recognised the possibility of an agriculturist being a dealer if he is found to be carrying on the business of buying and selling, with a selling organisation and the activity is carried on with the profit-motive.
6. Another division Bench of this Court in a decision reported in Glenrock Rubber Estates v. State of Tamil Nadu [1982] 51 STC 405 in respect of inter-State sales, while examining the tax case, after placing reliance upon the judgments of the apex Court in Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Greenham Estate (P.) Ltd. [1969] 24 STC 424, Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Midland Rubber and Produce Co. Ltd. [1970] 25 STC 57 and Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Travancore Rubber and Tea Co. [1967] 20 STC 520 held thus :
“The decision of the Supreme Court shows that even in eases where agriculture is being carried on in a business-like manner, such as in a plantation or estate, the operation will not cease to be an agricultural operation and be regarded as a business operation. In order to make an agriculturist a dealer carrying on a business in selling his produce, something more is necessary to be established than pointing out that he systematically raises the produce in his lands, converts it into a marketable commodity and then sells the commodity at a profit in the market. The court no doubt ruled out the idea that an agriculturist selling his produce must in every case be regarded as a non-dealer. They said that under a given situation he might well be considered to be a regular dealer himself of the produce. They did not, however, indicate what relevant consideration the taxing department must establish in order to show that an agriculturist selling his produce in the market is a dealer of such produce for purposes of sales tax. There are indications here and there in that judgment to show that the court considered as relevant such factors as the existence of a profit-motive, the nature and set up of the plantation as a business organisation, the establishment of selling agencies, and the like. In the case before them, however, the Supreme Court did not find any indications of the existence of considerations such as these. They held, therefore, that the assessee in that case could not be assessed to Central sales tax as a dealer carrying on the business of selling latex in any form.
This decision was followed by the Supreme Court in Deputy Commissioner v. Greenham Estate (P.) Ltd. [1969] 24 STC 424, and in a subsequent decision in Deputy Commissioner v. Midland Rubber & Produce Co. Ltd. [1970] 25 STC 57. The decision in Deputy Commissioner v. Greenham Estate (P.) Ltd. [1969] 24 STC 424 (SC) is notable for the court’s observation that in the assessment and collection of Central sales tax, the liability has to be determined only on the basis of the provisions of the Central Sales Tax Act. The court observed that what has got to be applied to a given situation is the definition of the expression ‘dealer’ as found in the Central Sales Tax Act and not in any of the local Acts. It may be observed that this idea had been expressed in the earlier decision as well, i.e., Deputy Commissioner v. Travancore Rubber & Tea Co. [1967] 20 STC 520 (SC).
As in all these Supreme Court cases, so too in the present case, the taxing department has not established positively that the assessees are carrying on an activity for profit which may be properly regarded as a business in selling latex. All that the Tribunal and the other authorities were able to find is that the assessees own a considerable acreage of lands in which rubber trees are grown from which latex is extracted and sold after it is processed into sheets. As the Supreme Court pointed out, these facts, by themselves, are not enough to render the assessees dealers within the meaning of the Central Sales Tax Act.”
7. It is fairly admitted that there is no subsequent amendment to the Central Sales Tax Act till now. The very writ petitioner-association moved this Court in W.P. Nos. 1196, 1197 of 1991, etc. (Kanyakumari District Planters Association v. Deputy Commercial Tax Officer [1998] 108 STC 31) where the division Bench examined the question as to whether mere registration as a dealer would be sufficient and a decisive factor on the question as to turnover is taxable under the Tamil Nadu General Sales Tax Act and the division Bench held that the burden is on the assessing authority. With the above proposition of law, there is no quarrel.
8. However, in respect of members of the petitioner’s associa-tion in this writ petition, learned counsel contends that so long as there is no amendment to the provisions of the Central Sales Tax Act, there could be no direction compelling the members of the petitioner’s association to register themselves as dealers as there has been no change in law after the pronouncement of the apex Court reported in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. [1967] 20 STC 520 and Glenrock Rubber Estates v. State of Tamil Nadu [1982] 51 STC 405 (Mad.).
9. In the circumstances, learned counsel for the petitioner, is well-founded in contending that in the light of the overwhelming plethora of decisions and pronouncements of the apex Court, the respondents have no authority to call upon the petitioners to register themselves as dealers under the Central Sales Tax Act. I find there is considerable force in the contention advanced by Mr. K.C. Rajappa, learned counsel for the petitioners.
10. Had there been amendment to the Central Sales Tax Act this Court would be justified in proceeding on the basis that the earlier pronouncements of the apex Court as well as the judgment of the division Bench no longer holds good and Legislature had stepped in and had introduced appropriate provision bringing in the particular produce or the agriculturists or planters under the tax net. That is not the case here. Even in the counter-affidavit, the respondents solely rely upon the amendment of Section 2(r) of the Tamil Nadu General Sales Tax Act which will not confer them requisite power with respect to the provisions of the Central Sales Tax Act and compel the petitioners or the members of the petitioner’s association to register themselves as dealers.
11. In the circumstances, the contention advanced by the petitioners deserves to be sustained. At the same time if a particular planter or agriculturist or a member of the petitioner’s association had carried on business or dealt with rubber in the course of inter-State trade and if the respondents have some material, they could call upon the petitioner either to register himself or subject him to prosecution as has been provided in the Act.
12. In such course, it is needless to add that the respondent shall give minimum opportunity to the petitioner before concluding that the particular planter or members of the petitioner’s association is also a dealer in latex or rubber as the case may be while giving liberty to the respondents to take appropriate action and pass orders in respect of individuals requiring them to register themselves as dealers. In the light of the above discussions the proceedings deserve to be quashed.
13. Even a reading of the communication sent by the respondents would show that there is no legal authority to issue such a circular or notice and the act of the respondents is without authority of law besides it is without a basic fact which may enable the respondents to come to the conclusion that one or more of the members of the association is a dealer.
14. While reserving the authority of the respondents to take action in individual cases, the present writ petition is allowed and the mandamus is issued. Rule nisi is made absolute. The parties shall bear their respective costs.