JUDGMENT
Balasubrahmanyan, J.
1. These are cases in which penalties have been levied under section 22(2) of the Tamil Nadu General Sales Tax Act, 1959. The levies of penalty are questioned on two grounds : (i) that they are unconstitutional, and (ii) that they are not valid even under the Act. The constitutional issue is raised in the writ petitions. The issue as to the propriety of the penalties is raised in the tax revision cases. We shall first deal with the tax revision cases and then proceed to deal with the writ petitions.
2. Section 22(2) of the Act enacts that if any one collects sales tax or purports to collect sales tax in contravention of section 22(1) he shall be liable for penalty up to one and a half times the amount so collected. Section 22(1) will be contravened under three different sets of circumstances : (i) where sales tax is collected by a person who is not a registered dealer at all; (ii) where even a registered dealer collects tax on transactions which are not taxable at all under the Act; and (iii) where a registered dealer collects tax even on transactions at a rate higher than that at which they are taxable under the Act. That these are the contraventions of section 22(1) can be spelled out from rule 24(16)(ii) of the Tamil Nadu General Sales Tax Rules, 1959.
3. In the cases before us, penalties were levied under section 22(2) of the Act on registered dealers on the ground that sales tax was collected by them on transactions not liable to tax under the Act. The registered dealers in question are dealers in iron and steel goods, machinery, accessories and tools, cycles, and cycle spare parts, electrical goods, and the like. These are single point taxable goods. Under section 3(2) or section 4 of the Act read with the appropriate entries in the First or Second Schedule to the Act, the first seller of these goods is liable to pay single point tax on these items. Second and subsequent sellers of the same goods in the State are not liable to pay sales tax on the second or subsequent sales. Under section 22(2) read with rule 24(16)(ii), the first seller in these goods, if he is a registered dealer, can collect sales tax from those to whom he sells these goods. Second sellers and subsequent sellers cannot make similar collections of sales tax.
4. The registered dealers before us, on whom penalties have been levied, are second sellers of these goods. They have purchased the goods from the first sellers in the State. They have paid to the first sellers the price of these goods plus single point sales tax collected from them by the first sellers. These second sellers have subsequently resold the same goods to their own customers. While doing so, they have reimbursed to themselves the sales tax which the first sellers have collected from them, by adding that tax to the price charged by them to their customers. This reimbursement is called by various names, such as, “recoupment of tax”, “plusage”, and the like. Penalties under section 22(2) were levied on these second sellers on the score that the so-called recoupment, plusage or reimbursement of the tax by them was in contravention of section 22(1) read with rule 24(16)(ii), thereby rendering these second sellers liable for penalties under section 22(2). The Sales Tax Appellate Tribunal accepted this position in principle, but reduced the quantum of penalties in individual cases.
5. The main question in these tax revision cases is, whether in the events that happened, the penalties are validly levied on these second sellers under section 22(2) of the Act.
6. The contention put forward by the second sellers before us is, that they did not collect any sales tax as such from their purchasers. It is urged that they and their purchasers knew fully well that the transactions in which they were involved were only second sales, and as such, not liable to tax at that point. Their case is that, with this mutual awareness of the statutory position, the second sellers avoided collecting any sales tax on their second sales. What they actually collected from their purchasers, it was urged, were only sums of money by way of recoupments of the amounts they had themselves earlier paid to the first sellers.
7. We think we must accept the contention that these second sellers had merely recouped to themselves the tax which had been collected from them by the first sellers. This is clear from the fact that these second sellers have not collected, in addition, any sales tax on their own second sales. The inquiry then is : whether a mere recoupment by second sellers of tax collections made from them by the first sellers can be regarded as partaking of the character of “collections by way of tax” within the meaning of section 22(2) ?
8. According to the learned Advocate-General, who argued these cases for the State Government, even mere recoupments of tax by the second sellers would render them liable for penalty under section 22(2) of the Act. He referred to the language of section 22(2) and said that it also covers the case of a person who “collects any amount purporting to be by way of tax”. This phrase, according to the Advocate-General, is apt to apply even to a collection of money on the part of second sellers by way of recoupment of tax which had been collected from them by the first sellers at the stage of first sales. The learned Advocate-General conceded that section 22(2) would not have applied if these second sellers had shown a consolidated amount in their sale bills, instead of separately displaying in the bills the amounts charged to the customers as so much for recoupment of the sales tax collected from them by the first sellers and so much for the sale consideration proper.
9. Taking up the Advocate-General’s last argument first, it is odd that there should be an imposition of penalty in cases where the second sellers take their purchasers into their confidence, and frankly inform them as to how much is the price, inclusive of the margin of profit, and how much is the amount which is being recovered from them by way of recoupment of the collections of tax already borne at the stage of first sales, whereas there should be no liability for penalty if the second sellers were to withhold from their purchasers any breakup figures, but bill them for a price which is entirely uninformative and conceals a multitude of profit element. Even apart from the curious irony of the position argued for by the Advocate-General, we must reject his contention as not being borne out by section 22(2). What the provision, in substance, levies is a penalty for unauthorised collection of sales tax by a person who is not himself liable for sales tax on the transaction which he effects. If, however, he recoups what he has already paid by way of tax to some other person, it cannot be said that he has collected an amount “by way of sales tax” from his own customers.
10. The learned Advocate-General said that by this method of recouping sales tax, second and subsequent dealers would be converting single point levy under the Act into a multi-point tax which the Act does not levy. This suggestion, in our opinion, is based on quite a wrong conception. A single point levy does not mean that it stays at the place where it is imposed, and any one on whom that burden falls should go out of pocket and cannot shift the burden. On the contrary, section 22(1) read with rule 24(16)(ii) actually permits the first seller to shift the burden. What is more, there is nothing in section 22(1) which enacts or implied that this shifted burden cannot be passed on and shifted farther from dealer to dealer, right through to the ultimate consumer. That the burden of the single point levy is shifted in this manner at every successive transaction does not, however, make it a multi-point tax. A multi-point tax, as the antithesis of a single point tax, must be understood as a multi-point, cumulative tax, such as the one charged under section 3(1) of the Act. If the tax is cumulative and multi-point, then tax is leviable at every stage at that rate of the sale price contracted for at that stage, and every successive dealer can not only recoup the taxes earlier levied, but can collect from the purchaser the tax to which he himself is liable. If, for instance, the multi-point rate is 10 per cent and the commodity is sold for Rs. 100, then the dealer has every right to collect sales tax at 10 per cent from his purchaser. The purchaser’s cost then would be Rs. 110. When he sells the goods in turn, he has to pay multi-point sales tax at 10 per cent which will come to Rs. 11. This amount he can add to his cost price namely Rs. 110. His sale price would then be Rs. 121, assuming that he is not making any profit out of the transaction. This process will go on at every subsequent stage of the multi-point chain of transactions. The tax will have a cumulative effect and will get reflected in the ultimate price payable by the consumer. It is because of the progressively rising incidence of the cumulative multi-point tax that sales tax legislations in modern economic systems have largely been converted to a single point levy on transaction in most of the goods. In this milieu, no one will say it is a contravention of the Act if a dealer liable for tax at a single point shifts the burden to his purchaser. Why then should it be a contravention of the Act if that purchaser shifts precisely that burden of single point levy to his own purchaser, and so on ? The contravention would come in only where a person who is not liable to tax on his own transaction of sale, nevertheless collects or purports to collect sales tax as a percentage on his sale price from the purchaser. Section 22(2) being a penal provision, must be construed strictly, and in any case, quite reasonably, according to the scheme of the Act. It cannot be construed without regard for the scheme of the Act which makes a distinction between single point and multi-point taxation. Where the reimbursement of tax by a dealer is without violence to the basic burden of single levy, then there can be no contravention of section 22(1), reading that provision in accordance with the statutory scheme of single point levy.
11. There is yet another way of looking at the problem. Rule 24(16)(ii) only prohibits collection of an amount by way of tax on a transaction not liable to tax under the Act. If the collection of tax is on a transaction which is liable to tax under the Act, such a collection cannot be said to be in contravention of rule 24(16)(ii) or of section 22(1) of the Act. The second sellers who have been penalised in these cases are registered dealers and they have collected only the tax which is payable on the first sale. That the tax on that first sale has already been paid to the State by the first seller or that it has already been collected by the first seller from his purchasers does not make it any different when the second seller collects it from his own purchaser. It is, and it still remains, the tax on the first sale, which, by definition is a tax which can legitimately be collected by a registered dealer. It is true that the second seller will not be paying the collections to the State. But the Act, as it stands amended at the material time, nowhere requires the collections to be paid over to the State. And, in any case, the penalty under section 22(2) is not for non-payment of collections into the Government treasury, but for collection by way of tax from transactions not liable for tax. It is not the case of the taxing authorities that the second sellers in the instant cases have collected any tax per se on transactions which are second sales of the same goods. Hence, whether we call this collection as a recoupment, reimbursement, plusage or by any other name, such a collection only relates to the transaction which is strictly taxable under the Act, and therefore, any collection of tax in respect of such transaction cannot be regarded as a collection in contravention of either rule 24(16)(ii) or of section 22(1) of the Act. It follows that penalty cannot be levied for making such collections.
12. The learned Advocate-General then urged that even in the matter of recoupment of the tax leviable at the point of first stage the second sellers have permitted themselves a larger recoupment then the actual tax borne by the goods at the stage of first sale. Mr. V. K. Thiruvenkatachari, however explained that in cases where a second seller purchases in bulk these goods from several different first sellers, carries them to stock and then sells the items in retail under various transactions, it is well-nigh difficult for the second seller to be precise and recoup the exact sum from his purchasers.
13. We appreciate the practical difficulty which Mr. Thiruvenkatachari has adverted to. But we must decide the issue on principle, not on any pragmatic consideration. However, even the principle of the thing does not create any difficulty at all, at any rate, so far as the present cases go. If the second sellers err on the safer side while recouping to themselves the tax borne at the stage of first sale and collect something more than the tax incident, then to the extent it is discovered that the amount collected shows an excess, the excess amount must necessarily be attributed to the second sellers profit element in the transaction of second sale. This must be so, because in the instant cases, the taxing authorities have not clearly determined, in terms of rupees and paise, by how much the second sellers have overcharged their purchasers in the matter of recoupment of the tax on first sales. Indeed, the case of the revenue is, not that the collection of the excess alone is an act which renders the second sellers liable for penalty, but that the penalty attaches under section 22(2) for the entire amount collected. We cannot hence sustain the penalties to any extent in these cases until the basis therefore is clearly stated and clearly established.
14. Mr. Thiruvenkatachari at one stage of the argument which he developed, attempted to bring these cases within the protection of the proviso to section 22(1), in a bid to question the propriety of the penalties levied on them. Briefly stated, the proviso deals with registered dealers who deal in price controlled commodities and who seek to recover from their customers the tax suffered by any such commodities, by way of addition to the controlled price. According to the proviso, any recovery by such dealers of tax “suffered” by such goods would not be hit by the prohibition laid down by section 22(1) against collection of tax at stages other than the taxable point. Mr. Thiruvenkatachari referred to certain provisions in the Standards of Weight and Measures Act, 1976 (Central Act 60 of 1976), and the Rules made thereunder to elucidate and illustrate the effect of the proviso to section 22(1) in transactions in price controlled commodities. He particularly stressed the provision in the said Rules which requires that the price-tag of packaged articles must mention “max. price …. local taxes extra”. According to learned counsel, these provisions justified the practice which is being followed by the second sellers before us under which they have been separately showing in their invoices the price of goods proper and the amount of recoupment of the sales tax borne in on the goods at stage of first sale.
15. These arguments, enlightening as they were, however possess no practical value in the present discussion. For as the learned Advocate-General pointed out there was nothing on record to show that the goods dealt with by the dealers in the instant cases were goods to which Central Act No. 60 of 1976 applied. We accept the principle that if the proviso applies, any collections of tax falling under the proviso cannot contravene section 22(1), and if section 22(1) is not contravened, then, there can be no levy of penalty under section 22(2). However, in the absence of materials in these cases, to show that the recoupments of tax by these second sellers were covered by the proviso to section 22(1), the reference to Central Act No. 60 of 1976 or other price-control legislations, must be dismissed as purely academic. However, for the reasons we have earlier mentioned, we must hold that the penalties levied on these second sellers must be held to be illegal, since they are not authorised by section 22(2) of the Act. The dealers’ revisions must, therefore, be allowed.
16. Some of the tax revisions before us have been brought by the State Government. The objection voiced in these revisions is against the Tribunal’s reductions in the quantum of penalties. Since we have held that there is no warrant for levy of any penalty at all in any sense, the claim of the State to restore the penalty to their original amounts hardly arises. The State revisions have, therefore, to be dismissed.
17. We may now turn to the writ petitions in which the constitutionality of section 22(2) is being challenged by these second sellers. Mr. Thiruvenkatchari for the second sellers in these cases urged two contentions : (i) that the section is beyond the legislative or fiscal competence of the State legislature; and (ii) that the section is violative of article 19(1)(f) of the Constitution of India.
18. On the first head of his argument, the learned counsel characterised the penalty leviable under section 22(2) as a civil penalty. He, however, hastened to urge that the provision failed to fulfil the requirements of a civil penalty, as envisaged by taxing statutes. The learned counsel referred to the decision of this Court in Sivagaminatha Moopanar’s case [1955] 28 ITR 601, which dealt with the nature of penalties under the Indian Income-tax Act, 1922, and said that penalties of this kind can be justified only under one or other of two principles : (i) that it costs more to track down tax evasion than to make an assessment in the ordinary course, and therefore, penalty is leviable on tax evasion as a measure of recouping the extra cost of administration and (ii) that it takes a longer time to bring to book tax-evaders than make an assessment in ordinary cases, and therefore, penalty must be levied as a measure of interest on delayed assessment and delayed collection of tax. Having referred to these considerations, the learned counsel turned to section 22(2) and said that the penalty provided for under this section does not answer either of the tests laid down by this Court in the case cited.
19. We must reject this argument based on the learned counsel’s reading of the Sivagaminatha Moopanar decision [1955] 28 ITR 601 of this Court. In our view, this decision did not purport to tell anyone, least of all the legislatures, how and for what purposes tax penalties must be enacted, what results they must aim at, and what things are beyond their purview. Tax penalties are aids to the enforcement of the taxing provisions, and therefore, they are incidental and ancillary to those provisions. They may serve the purposes mentioned by this Court in the Sivagaminatha Moopanar decision [1955] 28 ITR 601. But what was said in that case is not the be-all and end-all of tax penalties of every description.
20. Mr. Thiruvenkatachari then submitted that a second seller or a subsequent seller must recover the tax suffered in the first sale in order to recover his cost price and avoid losses. The learned counsel added that if section 22(2) levied a penalty on a second seller who recoups the tax just for the sake of avoiding loss in this manner, then the provision cannot be regarded as ancillary or incidental to the taxing power of the State Legislature under entry 54 of List II of the Seventh Schedule to the Constitution.
21. We think that effective answers to these contentions are furnished by the decision of the Supreme Court in Joshi, Sales Tax Officer v. Ajit Mills Ltd. and the more recent decisions of this Court and the Bombay High Court in Arunachalam Chettiar & Co. v. State of Tamil Nadu [1979] 44 STC 8 and the Trustees of the Port of Bombay v. Karandikar, Sales Tax Officer [1979] 44 STC 102. The common theme of all these decisions is that penalty, as a form of tax enforcement, is ancillary or incidental to the taxing power itself and hence entry 54 in List II of the Seventh Schedule to the Constitution empowering the State Legislature to levy a tax on sales must be construed, as including within its fold, the power to levy penalty also.
22. On the basis of the decisions we have cited, we must hold that section 22(2) is a competently enacted provision in a fiscal statute within the constitutional mandate of the State Legislature. It is intended to safeguard the interests of the revenue. As an enforcement provision, the section is very much incidental and ancillary to the main power of taxation of sales. Without a power to levy penalty of this kind, it would be difficult to check the setting up of unauthorised centres of tax collection by private individuals and trading concerns. The contention that section 22(2) is ultra vires the State Legislature must, therefore, fail.
23. As for the other contention that the penalty under section 22(2) would be an unreasonable restriction on the right of the citizen to carry on trade, violative of article 19(1)(f), we must again refer to and follow the Supreme Court’s decision in Joshi, Sales Tax Officer v. Ajit Mills Ltd. and the Bombay High Court’s decision in the Trustees of the Port of Bombay v. Karandikar, Sales Tax Officer [1979] 44 STC 102. In both these decisions, it was held that a penalty levied for unauthorised collection of sales tax does not contravene article 19(1)(f) of the Constitution.
24. We would, before closing our discussion on the question of the constitutionality of section 22(2), refer to the legislative history of the provision which was referred to during the argument by both sides. The penalty provision in section 22(2) is an innovation which was introduced in the taxing statute, with effect from 1st December, 1972, by Amending Act No. 31 of 1972. Before the amendment, section 22 had laid down in its then existing sub-sections (2) and (3) that unauthorised or illegitimate collections of sales tax must be paid over to the State. In Abdul Quader & Co. v. Sales Tax Officer , the Supreme Court struck down as ultra vires a similar provision under the Hyderabad General Sales Tax Act, 1950, which enabled the State Government to appropriate amounts collected by a person on transactions not in themselves taxable. Apparently drawing a lesson from this decision, the Tamil Nadu Legislature dropped from the statute book section 22(2) and 22(3) of the Act as they originally stood under which illegitimate collections of sales tax have had to be paid over to the Government Treasury. In their place, the State Legislature introduced the present section 22(2) under which illegitimate collections of sales tax are to be visited, not with forfeiture, but with a penalty extending upto one and half times the amount of the unauthorised collections. It is a feature of the provisions in section 22, both before and after the amendment, that a registered dealer making legitimate collections of tax is dealt with differently from an unregistered dealer making an illegitimate collection of tax. Before the amendment, there was no provision requiring the registered dealer to pay what he collected. He may return less than he collected, or he may not file a return at all, but court a best judgment under-assessment. In either event, he can make a profit on his collections. Nevertheless, such a registered dealer could not be proceeded against for recovery of the collections in excess of the assessed tax. Now, after the amendment, the registered dealer’s position is, if anything, more secure and more favourable to him. He need not pay what he collected. And, if he does not pay, he cannot be penalised, either. In marked contrast, an unregistered dealer or other person who collects tax unauthorisedly was under an obligation to pay the amount collected into the State Treasury, as the section stood before the amendment. After the amendment, his position has become worse, if anything. He is made liable to penalty under section 22(2) which is up to one and a half times the amount collected.
25. There has always been a hiatus in sales tax legislation between two things : a dealer’s liability to pay tax to the State, and a dealer’s liability as respects his tax collections. If the law were that all collections must be made over to the State and the amounts so collected would alone be the measure of his tax liability, then each man can determine his own liability by adjusting his collections according to his convenience. In that event, the procedure for assessments by an army of tax officers at considerable expense to the State exchequer would be quite unnecessary. But the statute has made sales tax an “assessed” tax, which means that assessment is to be by tax officials, and it is by no means to be determined by the quantum of collections. Amidst the differentiation between the assessment process and provisions for tax collection, where a registered dealer has collected tax at proper rates and (sic) only taxable transactions, the Act might very well have made appropriate provision compelling the registered dealer to pay over all his collections to the State. There is however no such provision in the statute either before or after the amending Act 31 of 1972. The position on the contrary is that where a registered dealer does not pay what he has lawfully collected, there is no provision for recovery of that tax, nor is there any penalty for non-payment of the tax so collected even in cases where he is under-assessed. In contrast, an unregistered dealer who, like a registered dealer, is also liable for assessment under every charging provision of the Act, is subjected to a penalty for the mere fact of collecting the tax, even though he might pay the entire amount so collected into the State treasury. From the point of view of the object of the taxing Act, and from the point of view of preventing leakage or loss of revenue, there is no earthly reason why a registered dealer who does not pay what he has collected should get away with it, while an unregistered dealer who collects tax and pays what he collects must be visited with penalty under section 22(2). If section 22(2) excuses, or excepts an unregistered dealer from penalty wherever he pays all that he had collected, it might to a certain extent have made the provision tolerable if not wholly equitable. As it is, however, payment of tax collected unauthorisedly will not relieve the dealer from penalty, for section 22(2) levies penalty on the mere act of collection; it does not take note of payment made to the State of the amounts so collected.
26. These strange features of section 22(2) show how unsatisfactory from the point of view of equality the provision for penalty figures and operates under section 22(2). It is a matter for question whether this discrimination in fiscal treatment brought about by section 22(2) as between legitimate collections (by registered dealers) and illegitimate collections (by unregistered as well as registered dealers) can be justified on any rational basis related to the purpose of the Act. If the objective of the Act is to raise revenue, to prevent loss or leakage of revenue, then it seems to us quite a wrong and irrational legislative approach to the whole problem of managing the sales tax under the Act to levy penalty on those who make illegal collections, and let off those who make legitimate collections but who nevertheless escape assessment or get under-assessed, when both do not have to pay over their collections to the State.
27. Be that as it may, for the reasons we have earlier set out, the penalties levied on the dealers who figure before us in these cases must be set aside, and we hereby do so.
28. In the result, T.C. (R) Nos. 76, 179 to 183, 185 to 189 of 1981 and T.C. (R) Nos. 20 and 465 of 1982 preferred by the dealers are allowed; T.C. (R) Nos. 78 to 82 of 1981 T.C. (R) Nos. 428 and 1068 of 1982 preferred by the State are dismissed. W.P. Nos. 1771 to 1775 and 3584 to 3588 of 1978, W.P. Nos. 3098 and 3956 of 1979 and W.P. No. 6305 of 1980 preferred by the dealers are dismissed. In the circumstances of the case, there will be no order as to costs.
29. The learned Government Pleader representing the State and the learned counsel representing the dealers make oral applications asking for leave to appeal to the Supreme Court from this judgment, each party as respects the relief denied to it. There can be no doubt whatever about the substantial nature of the questions involved in these cases. The interpretation and application of section 22(2) is not an easy affair. Although we have applied the decision of the Supreme Court in R. S. Joshi, Sales Tax Officer v. Ajit Mills Ltd. , to sustain the constitutionality of section 22(2) the decision relied on is not a direct decision. Besides, a question of this kind is of a general character in its impact likely to recur constantly in tax administration not only under this particular State Act, but also under other State enactments in pari materia. The cases in this group involve substantial revenue to the State and big money stakes to the parties concerned.
30. Having regard to all these considerations, we grant certificates of fitness for appeal to the Supreme Court for all the parties in all these cases under article 132 and article 133(1)(c) of the Constitution.
