JUDGMENT
Bakthavatsalam, J.
1. The petitioner, who is a dealer in pickles, was assessed to total and taxable turnover of Rs. 7,89,091 and Rs. 7,79,410, respectively for the assessment year 1981-82. The petitioner seems to have applied for registration under the Trade and Merchandise Marks Act, 1958, for pickles manufactured by it and packed them in bottles and packets. The registration was granted to the petitioner by a certificate dated November 30, 1981 under section 23 of the Trade and Merchandise Marks Act, 1958, and the registration comes into effect from the date of application. According to the petitioner, who is dealing in bottled pickles and packet pickles, it is entitled to be taxed on multi-point rate and when the assessing officer sought to assess him on the single point rate, as it stood then under item 103 of the First Schedule, the petitioner preferred an appeal to the Appellate Assistant Commissioner and further appeal to the Tribunal but in vain. Hence the petitioner is before us.
2. The learned counsel for the petitioner contends that, to bring the sale of pickles under item 103 of the First Schedule under single point taxation is unwarranted on the facts of this case. It is further contended that the assessment year being 1981-82 and the petitioner got registration only in September, 1982, it cannot be said that the petitioner sold the pickles, with brand name, registered under the Trade and Merchandise Marks Act, 1958 and even assuming that the certificate came to be issued on November 30, 1981, the assessment for the whole assessment period is bad in law. It is also further contended that since the petitioner is dealing in pickles packed in bottles as well as in packets and when the petitioner is selling the packet pickles without any brand name, the turnover of sale of pickles cannot be brought into the single point taxation.
3. Mrs. Chitra Venkataraman, learned Additional Government Pleader contends that on the basis of the provision contained under section 23 of the Trade and Merchandise Marks Act, 1958, the registration of the trade-mark comes into effect from the date of application, and as such, the registration certificate having been issued retrospectively from January 6, 1979, the assessment in question was rightly made from that date. Further it is contended by the learned Additional Government Pleader that the assessing officer had thought fit to bring the entire turnover of the petitioner under single point from November 30, 1981, considering nature of the transaction the petitioner had during the assessment year.
4. The only question to be considered in this appeal is whether the pickles sold under the brand name “RAVIS” has to be brought into the net of taxation under single point or multi-point. The entry 103 of the First Schedule as it stood then reads as follows :
“Entry from October 10, 1979 :
(i) Biscuits,
(ii) Toffees,
(iii) Chocolates,
(iv) Confectionery,
(v) Butter,
(vi) Ghee,
(vii) Cheese and
(viii) Foods including preparations of vegetables, fruits, milk, cereals, flour, starch, birds’ eggs, meat and meat offals, animal blood, fish crustaceans and molluses which –
(a) are sold under any brand name registered under the Trade and Merchandise Marks Act, 1958 (Central Act 43 of 1958), and
(b) do not under item 24″.
On the facts of this case, there is no dispute, that the pickles sold by the petitioner were sold under the brand name “RAVIS” and also there cannot be any dispute that the Registrar of Trade Marks issued a certificate on November 30, 1981 certifying that the said trade mark has been registered in the name of the petitioner under section 23 of the Trade and Merchandise Marks Act, 1958. Under such circumstances, we are of the view, that the assessing officer is right in his conclusion in so far as he brought into the taxation of the turnover with regard to the sale of bottled pickles from November 30, 1981 under single point levy for the assessment year 1981-82. However, with regard to the pickles sold in packets, we are unable to agree with the view taken by the Tribunal, because unless the pickles are sold under the brand name “RAVIS” registered under the Act, it cannot be brought into the net of taxation under entry 103 of the First Schedule. There is no dispute that the part of the turnover relates to sale of pickles in packets. In such circumstances, we are of the view, that the pickles sold under packets cannot be brought into the net of taxation. Therefore, we are of the view, that the order of the Tribunal so far as it relates to the levy of tax, in respect of sale of pickles in packets, is set aside and in other respects the order of the Tribunal is affirmed. To arrive at the correct turnover of pickles sold in packets, the matter is remitted to the assessing officer for reassessment in the light of the order made herein. We make it clear that the above decision is made as it covers under entry 103 of the First Schedule as on October 10, 1979.
5. In the result, the tax case (revision) is partly allowed and is partly dismissed as indicated above. The matter is remitted to the assessing officer for proper reassessment in accordance with law, in the light of the observations made above. No costs.
6. Petition partly allowed.