{"id":171518,"date":"1965-12-17T00:00:00","date_gmt":"1965-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-jammu-kashmir-and-others-vs-caltex-india-ltd-on-17-december-1965"},"modified":"2015-02-01T15:11:10","modified_gmt":"2015-02-01T09:41:10","slug":"state-of-jammu-kashmir-and-others-vs-caltex-india-ltd-on-17-december-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-jammu-kashmir-and-others-vs-caltex-india-ltd-on-17-december-1965","title":{"rendered":"State Of Jammu & Kashmir And Others vs Caltex India (Ltd.) on 17 December, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Jammu & Kashmir And Others vs Caltex India (Ltd.) on 17 December, 1965<\/div>\n
Equivalent citations: 1966 AIR 1350, \t\t 1966 SCR (3) 149<\/div>\n
Author: V Ramaswami<\/div>\n
Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Ramaswami, V., Satyanarayanaraju, P.<\/div>\n
           PETITIONER:\nSTATE OF JAMMU & KASHMIR AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nCALTEX INDIA (LTD.)\n\nDATE OF JUDGMENT:\n17\/12\/1965\n\nBENCH:\nRAMASWAMI, V.\nBENCH:\nRAMASWAMI, V.\nGAJENDRAGADKAR, P.B. (CJ)\nWANCHOO, K.N.\nHIDAYATULLAH, M.\nSATYANARAYANARAJU, P.\n\nCITATION:\n 1966 AIR 1350\t\t  1966 SCR  (3) 149\n CITATOR INFO :\n R\t    1969 SC 343\t (13)\n RF\t    1970 SC 306\t (10)\n F\t    1975 SC 887\t (6)\n\n\nACT:\nSales Tax-Petrol sent under contract from Punjab to Jammu  &\nKashmir-Sales whether inter-State in character-Chargeability\nunder  Jammu & Kashmir Motor Spirit (Taxation of Sales)\t Act\n2005,  s. 3 Sales Tax Laws Validation Act, 1956, effect\t of-\nConstitution of India Art. 286(2).\n\n\n\nHEADNOTE:\nPetrol\tand allied products were supplied by the  respondent\ncompany\t from  its depot in Punjab to the  State  Mechanized\nFarm  at Nandpur in Jammu & Kashmir State under\t a  contract\nwith  the  Director-General of Supplies, Delhi.\t  The  sales\nwere taxed under the Jammu & Kashmir Motor Spirit  (Taxation\nof Sales) Act, 2005 for the period January 1955 to May\t1959\nby a single assessment order.  The assessment was challenged\nby  the\t respondent  by a writ petition filed  in  the\tHigh\nCourt,\tas being beyond the taxing power of the State  owing\nto  the\t ban imposed by Art. 286(2) as interpreted  by\tthis\nCourt in the Bengal Immunity case, as also the provisions of\nthe  Central Sales Tax Act, 1956 passed by Parliament  after\nthe  amendment\tof  Art.  286  by  the\tConstitution   Sixth\nAmendment Act, 1956.  The respondent's plea was accepted  by\na single judge of the High Court as regards the period after\nSeptember  6,  1955; as regards the period before  and\tupto\nthat date the learned Judge held that the sales were taxable\nbecause\t the ban on taxation of inter-State sales  in,\tArt.\n286(2) was lifted in respect of that period by the Sales Tax\nLaws  Validation Act,, 1956.  In Letters Patent\t Appeal\t the\nDivision Bench held that. the assessment order for the whole\nperiod\tfrom  January 1955 to, May 1959\t was  one  composite\nwhole and being bad in part was infected throughout and must\nbe  treated as wholly invalid.\tThe State appealed, to\tthis\nCourt by special leave.\nHELD  : (i) The sales in question were inter-State sales  as\nboth  the conditions laid down in the Bengal  immunity\tcase\nfor  a sale to be an inter-State sale that (1) there  should\nbe  a  sale of goods and (2) the goods must  be\t transported\nunder  the contract of sale from one State to another,\twere\nfully  satisfied  in the present case. The sales  could\t not\ntherefore  be taxed for the period not covered by the  Sales\nTax Laws Validation Act, 1956. [156 C-D]\nBengal Immunity Co. Ltd. v. State of Bihar,<\/a> [1955] 2  S.C.R.\n603, referred to.\n(ii) The  last\tmentioned Act however validated\t the  St-ate\nlaws  which levied tax on inter-State sales for\t the  period\nbefore September 6. 1955.  Hence the sales before that\tdate\ncould be validly taxed as held by the single Judge. [159 F]\n150\n(iii)\t  The  fact  that  the respondent had  no  place  of\nbusiness or storage in Jammu  &\t Kashmir  was  not  material\nbecause it was not a condition for taxation  under the Jammu\nJUDGMENT:\n<\/pre>\n
should be such a place of business or storage.\tSection 3 of
\nthe  Act  purports to tax all “retail sales”.\tNor  is\t the
\nholding of a licence under s. 6 which is a machinery section
\nonly,  a condition of liability to pay sales-tax  under\t the
\nAct. [158 C-D]\n<\/p>\n
(iv) The Division Bench was wrong when it held that  because
\nthere  was  one assessment order for the whole\tperiod\tfrom
\nJanuary\t 1955  to May 1959, the whole of  it  was  vitiated.
\nSales-tax  is in ultimate analysis imposed on receipts\tfrom
\nindividual  sales or purchases of goods and it was  possible
\nto  separate  the assessment of receipts  derived  from\t the
\nsales  for the period up to September 6, 1955 and  to  allow
\nthe  taxing authorities to enforce the statute with  respect
\nto  the\t sales\ttaking place during ‘this  period  and\talso
\nprevent\t them by grant of a writ from imposing the tax\twith
\nregard to sales for the exempted period, [159 G-160 E]
\nState  of Bombay v. United Motors India Ltd.<\/a>  [1953]  S.C.R.
\n1069, relied on.\n<\/p>\n
Bennett\t &  White (Calgary) Ltd. v.  Municipal\tDistrict  of
\nSugar City No. 5, [1951] A.C. 786, distinguished.\n<\/p>\n
&
\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 864 of
\n1964.\n<\/p>\n
Appeal\tfrom the judgment and order, dated July 10, 1962  of
\nthe  Jammu  & Kashmir High Court in L. P. Appeal  No.  4  of
\n1962.\n<\/p>\n
S.   V. Gupte, Solicitor-General, Raja Jaswant Singh,  Advo-
\ncate-General  for  the\tState of Jammu\tand  Kashir,  N.  S.
\nBindra,R. H. Dhebar, and R. N. Sachthey, for the  appellants
\nNos.  1 and 2.\n<\/p>\n
M. C. Setalvad, and D. N. Gupta, for the respondent.
\nThe Judgment of the Court was delivered by
\nRamaswami,  J.\tThis  appeal is\t brought  on  a\t certificate
\nagainst the judgment of the Division Bench of the High Court
\nof Jammu & Kashmir at Srinagar, dated July 10, 1962  holding
\nthat  the respondent is not liable to pay Sales tax for\t the
\nperiod\tfrom  January, 1955 to May, 1959 under the  Jammu  &
\nKashmir\t Motor\tSpirit (Taxation of Sales) Act,\t 2005  (1948
\nA.D.).\n<\/p>\n
The Director-General of Supplies, Delhi entered into a\tcon-
\ntract  with General Manager, Caltex India (Ltd.)  at  Bombay
\n(hereinafter  called  the  respondent)\tfor  the  supply  of
\npetrol,\t HSD and Power Kero to the State Mechanized Farm  at
\nNandpur\t located  in  the  State of  Jammu  &  Kashmir.\t  In
\npursuance of this contract the respondent directed its depot
\nat  Pathankot situated in the Punjab State to supply  petrol
\nto the Nandpur Farm.\n<\/p>\n
151<\/span><\/p>\n
The procedure adopted was as follows.  The Officer in charge
\nof the Nandpur farm placed indents with the Pathankot  depot
\nfor supply of specified quantities of petrol to the farm and
\non  receipt of the indents, the Pathankot depot\t transported
\nthe petrol in its own tank-lorries to Nandpur and  delivered
\nthe petrol to the farm.\t The petrol was measured by means of
\ndipping\t rods  and  approved by\t the  indenting\t officer  at
\nNandpur farm and thereafter the petrol was delivered to\t the
\nNandpur farm through pumps which belonged to the respondent.
\nThe  price of petrol so supplied was paid to the  respondent
\nat  Delhi by the Director-General of Supplies.\t The  Petrol
\nTaxation  Officer at Srinagar considered that the  sales  of
\npetrol\tto  Nandpur farm were liable to be taxed  under\t the
\nJammu  & Kashmir Motor Spirit (Taxation of Sales) Act,\t2005
\nand  called upon the respondent to furnish returns of  sales
\nbetween\t 1952 to 1959.\tThe respondent,\t however,  furnished
\nreturns only for the period January, 1955 to May, 1959.\t  On
\nthe  basis  of\tthe  returns  the  Petrol  Taxation  Officer
\nassessed  the respondent to pay sales tax to the  extent  of
\nRs.  39,619.75 in respect of sales of petrol  from  January,
\n1955 to May, 1959.  The respondent thereafter moved the High
\nCourt under s. 103 of the Constitution of Jammu and  Kashmir
\nfor grant of a writ to quash the assessment of sales tax and
\nto  restrain the State of Jammu and Kashmir and\t the  Petrol
\nTaxation  authorities  (hereinafter called  the\t appellants)
\nfrom  levying  the tax.\t It was contended on behalf  of\t the
\nrespondent  that the sales tax could not be imposed  as\t the
\nsales  took  place in the course of  inter-State  trade\t and
\ncommerce.    Syed  Murtaza  Fazl  Ali,\tJ.  held  that\t the
\nrespondent  was\t liable to pay sales tax in respect  of\t the
\nsales  which took place during the period January,  1955  to
\nSeptember,  1955.   Regarding  the rest\t of  the  period  of
\nassessment, the learned Judge held that the appellants\twere
\nnot  entitled  to  levy tax and accordingly  issued  a\twrit
\nrestraining  the  appellants from levying the  tax  for\t the
\nperiod from October, 1955 to May, 1959.\t The appellants took
\nthe matter in Letters Patent appeal and the respondent\talso
\nfiled  Cross-objection with regard to the liability  to\t tax
\nfor the period from January,, 1955 to September, 1955.\t The
\nDivision  Bench dismissed the appeal in Letters\t Patent\t and
\nallowed the cross-objection of the respondent, holding\tthat
\nthe  appellants were not entitled to levy sales tax for\t the
\nentire\tperiod from January, 1955 to May, 1959\tand  accord-
\ningly quashed the assessment of sales tax, dated October  3,
\n1960.\n<\/p>\n
It is necessary, at this stage, to indicate the\t legislative
\ndevelopment in the State of Jammu and Kashmir which provides
\nthe  setting  for the questions to be investigated  in\tthis
\ncase.\n<\/p>\n
152<\/span><\/p>\n
Article\t 286  of  the Constitution,  as\t it  was  originally
\nenacted, read  as follows :\n<\/p>\n
\t      “(1)  No\tlaw  of a  State  shall\t impose,  or
\n\t      authorise the imposition of, a tax on the sale
\n\t      or  purchase  of\tgoods  where  such  sale  or
\n\t      purchase takes place–\n<\/p><\/blockquote>\n
\t      (a) outside the State; or\n<\/p><\/blockquote>\n
\t      (b)   in the course of the import of the goods
\n\t      into,  or\t export\t of the goods  out  of,\t the
\n\t      territory of India.\n<\/p><\/blockquote>\n
\t      Explanation.-For\tthe  purpose  of  sub-clause\n<\/p><\/blockquote>\n
\t      (a),  a  sale or purchase shall be  deemed  to
\n\t      have  taken  place in the State in  which\t the
\n\t      goods have actually been delivered as a direct
\n\t      result  of  such\tsale  or  purchase  for\t the
\n\t      purpose\tof   consumption  in   that   State,
\n\t      notwithstanding-\tthe  fact  that\t under\t the
\n\t      general,law  relating  to sale  of  goods\t the
\n\t      property\tin the goods has by reason  of\tsuch
\n\t      sale or purchase passed in another State.
\n\t      (2)   Except  in so far as Parliament  may  by
\n\t      law otherwise provide, no law of a State shall
\n\t      impose, or authorise the imposition of, a\t tax
\n\t      on  the  sale or purchase of any\tgoods  where
\n\t      such  sale  or  purchase takes  place  in\t the
\n\t      course of inter-State trade or commerce :
\n\t      Provided\tthat  the  President  may  be  order
\n\t      direct that any tax on the sale or purchase of
\n\t      goods’ which was being lawfully levied by\t the
\n\t      Government of any State immediately before the
\n\t      commencement   of\t this  Constitution   shall,
\n\t      notwithstanding  that the imposition  of\tsuch
\n\t      tax  is  contrary to the\tprovisions  of\tthis
\n\t      clause,  continue\t to  be\t levied\t until\t the
\n\t      thirty-first day of March, 1951.
\n\t      (3)   No\tlaw  made by the  Legislature  of  a
\n\t      State imposing, or authorising the  imposition
\n\t      of, a tax on the sale or purchase of any\tsuch
\n\t      goods  as have been declared by Parliament  by
\n\t      law  to  be  essential for  the  life  of\t the
\n\t      community shall have effect unless it has been
\n\t      reserved\t for   the  consideration   of\t the
\n\t      President and has received his assent.”\n<\/p><\/blockquote>\n
Article 286 therefore imposes four bans upon the legislative
\npower of the States.  Clause (1) prohibited every State from
\nimposing or authorising the imposition of, a tax on  outside
\nsales  and on sales in the course of import into  or  export
\noutside the territory
\n153<\/span>
\nof India.  By cl. (2) the State was prohibited from imposing
\ntax  on the sale of goods where such sale took place in\t the
\ncourse of inter-State trade or commerce.  But the ban  could
\nbe  removed by legislation made by the Parliament.   By\t cl.
\n(3) the Legislature of a State was incompetent to impose  or
\nauthorise  imposition  of  a tax on the sale  of  any  goods
\ndeclared  by the Parliament by law to be essential  for\t the
\nlife  of the community, unless the legislation was  reserved
\nfor the consideration of the President and had received\t his
\nassent.\t  But Art. 286 of the Constitution did not apply  to
\nthe State of Jammu & Kashmir till May 14, 1954, because\t the
\nConstitution  (Application  to Jammu & Kashmir)\t Order\t1950
\nmade by the President of India on January 26, 1950  excepted
\nArt.  286  from its applicability to the State\tof  Jammu  &
\nKashmir.  Reference, in this connection, may be made to\t the
\nSecond Schedule to the Constitution (Application to Jammu  &
\nKashmir)   Order  1950,\t relevant  excerpt  from  which\t  is
\nreproduced below :\n<\/p>\n
\t\t  “THE SECOND SCHEDULE
\n\t\t    (See paragraph 3)
\nProvisions of the\t  Exceptions\t     Modifications
\nconstitution appli-\n<\/p>\n
cable.\n<\/p>\n
Part XII\t  Articles 264 and 265\t1.Articles 266 shall
\n\t\t  use (2) of Art. 267,\tapply only in so far
\n\t\t  Articles 268 to 281  as it  relates to the
\n\t\t  Clause (2) of Art.\tConsolidated Fund of
\n\t\t  283, Articles 286 to\tIndia and the public
\n\t\t  291, 293, 295, 296\t account of India.\n<\/p>\n
\t\t  and  297.\n<\/p>\n
\t\t\t\t     2. Articles 282 and 284
\n\t\t\t\t      shall apply only in so
\n\t\t\t\t      far as they relate to
\n\t\t\t\t     the Union or the public
\n\t\t\t\t\taccount of India.\n<\/p>\n
\t\t\t\t     3. Articles 298, 299
\n\t\t\t\t      and 300 shall apply
\n\t\t\t\t      only in so far as
\n\t\t\t\t      they relate to the
\n\t\t\t\t      Union or the Govt.\n<\/p>\n
\t\t\t\t\t  of India.”\n<\/p>\n
But Art. 286 was applied to the State of Jammu & Kashmir  by
\nthe  Constitution  (Application to Jammu &  Kashmir)  Order,
\n1954 which came into force on 14th day of May, 1954.  In The
\nBengal Immunity Company Ltd. v. State of Bihar<\/a>(f) this Court
\nheld  that the operative provisions of the several parts  of
\nArt.  286, namely cl. (1) (a), cl. (1) (b), cl. (2) and\t cl.
\n(3),  were  intended to deal with different topics  and\t one
\ncannot be projected or read
\n(1) [1955] 2 S.C.R. 603.\n<\/p>\n
L9 Sup.\t CI\/66-11
\n154<\/span>
\ninto  another, and therefore the Explanation in cl. (1)\t (a)
\ncannot\tlegitimately  be extended to cl. (2)  either  as  an
\nexception  or as a proviso thereto or read as curtailing  or
\nlimiting the ambit of cl. (2).\tThis Court further held that
\nuntil the Parliament by law, made in exercise of the  powers
\nvested\tin it by cl. (2) of Art. 286, provides otherwise  no
\nState  may impose or authorise the imposition of any tax  on
\nsales  or  purchases of goods when such sales  or  purchases
\ntake  place in the course of inter-State trade or  commerce,
\nand therefore the State Legislature could not charge  inter-
\nState sales or purchases until the Parliament had  otherwise
\nprovided.  The judgment of the Court in the Bengal  Immunity
\nCompany’s case(1), was delivered on September 6, 1955.\t The
\nPresident  issued the Sales Tax Laws  Validation  Ordinance,
\n1956,  on  January 30, 1956, the provisions  of\t which\twere
\nlater  embodied in the Sales Tax Laws Validation Act,  1956.
\nBy this Act notwithstanding any judgment, decree or order of
\nany  Court, no law of a State imposing, or  authorising\t the
\nimposition  of, a tax on the sale or purchase of  any  goods
\nwhere  such  sale or purchase took place in  the  course  of
\ninter-State trade or commerce during the period between\t the
\n1st  day of April, 1951 and the 6th day of September,  1955,
\nshall  be deemed to be invalid merely by reason of the\tfact
\nthat  such  sale  or purchase took place in  the  course  of
\ninter-State trade or commerce; and all such taxes levied  or
\ncollected  or  purported to have been  levied  or  collected
\nduring\tthe aforesaid period shall be deemed always to\thave
\nbeen  validly  levied or collected in accordance  with\tlaw.
\nThe Parliament thus removed the ban contained in Art. 286(2)
\nof the Constitution retrospectively but limited only to\t the
\nperiod\tbetween\t April 1, 1951 and September 6,\t 1955.\t All
\ntransactions  of  sale, even though  they  were\t inter-State
\ncould for that period be lawfully charged to tax.  But\tArt.
\n286(2)\tremained operative after September 6, 1955 till\t the
\nConstitution   was  amended  by\t the   Constitution   (Sixth
\nAmendment) Act, i.e., September 11, 1956.  By the amendment,
\nthe  explanation to cl. (1) of Art. 286 was deleted and\t for
\ncls. (2) and (3) the following clauses were substituted :\n<\/p>\n
\t      “(2)   Parliament\t  may\tby   law   formulate
\n\t      principles  for  determining when\t a  sale  or
\n\t      purchase\tof goods takes place in any  of\t the
\n\t      ways mentioned in clause (1).\n<\/p><\/blockquote>\n
\t      (3)   Any\t law of a State shall, in so far  as
\n\t      it imposes, or authorises the imposition of, a
\n\t      tax on the sale or purchase of goods, declared
\n\t      by Parliament by law to be
\n\t      (1)   [1955] 2 S.C.R. 603.\n<\/p><\/blockquote>\n
\t      155<\/span><\/p>\n
\t      of special importance in inter-state trade  or
\n\t      commerce\tbe subject to such restrictions\t and
\n\t      conditions  in regard to the system  of  levy,
\n\t      rates  and  other\t incidents  of\tthe  tax  as
\n\t      Parliament may by law specify.”\n<\/p><\/blockquote>\n
By cl. (2) of Art. 286 as amended, Parliament was authorised
\nto  formulate  principles  for determining when\t a  sale  or
\npurchase  of goods takes place in any of the ways  mentioned
\nin  cl. (1), namely, outside the State or in the  course  of
\nthe  import into, or export out of the territory  of  India.
\nBy  the Constitution (Sixth Amendment) Act,  Parliament\t was
\nentrusted   with  power\t under\tArt.  269(3)  to   formulate
\nprinciples for determining when a sale or purchase of  goods
\ntakes place in the course of inter-State trade or  commerce;
\nand  to\t effectuate  the conferment of that  power,  in\t the
\nSeventh Schedule, Entry 92A was added in the First List\t and
\nEntry  54  in the Second List was amended.   The  Parliament
\nenacted,  in exercise of that power, the Central  Sales\t Tax
\nAct 74 of 1956 to formulate principles for determining\twhen
\na  sale\t or purchase of goods takes place in the  course  of
\ninter-State  trade or commerce or outside a State or in\t the
\ncourse\tof import into or export from India, and to  provide
\nfor the levy, collection and distribution of taxes on  sales
\nof goods in the course of inter-State trade or commerce\t and
\nto  declare  certain goods to be of  special  importance  in
\ninter-State trade or commerce etc.  Article 286, as  amended
\nby  the Constitution Sixth Amendment Act, 1956, was  applied
\nto the State of Jammu & Kashmir on 16th January 1958 by\t the
\nConstitution  (Application  to Jammu  &\t Kashmir)  Amendment
\nOrder 1958.  The Central Sales Tax Act (Act 74 of 1956)\t was
\nenacted\t by  Parliament\t on December 21,  1956\tbut  it\t was
\napplied to the State of Jammu & Kashmir on March 23, 1958 by
\nAct 5 of 1958.\n<\/p>\n
The questions presented for determination in this appeal are
\n(1)  whether  sales tax could be imposed on  the  respondent
\nfor  the period from October, 1955 to May, 1959 in  view  of
\nthe prohibition contained in Art. 286(2) of the Constitution
\nas  it\tstood before its amendment, (2)\t whether  sales\t tax
\ncould.\tbe  validly  levied on sales  taking  place  between
\nJanuary\t 1,  1955  to  September 6,  1955  in  view  of\t the
\nprovisions  of\tSales  Tax Validation Act, 1956\t (Act  7  of
\n1956).\n<\/p>\n
As regards the first question, it is admitted by the parties
\nthat  petrol was transported from Pathankot in the State  of
\nPunjab to Nangpur in the State of Jammu & Kashmir under\t the
\ncontract of sale.  The petrol was kept in storage at a depot
\nof the respondent
\n156<\/span>
\nat  Pathankot  and  it\twas carried in\tthe  trucks  of\t the
\nrespondent from Pathankot and delivered to the Nandpur\tfarm
\nin  the State of Jammu & Kashmir.  The price of\t the  petrol
\nsupplied  was  paid  to\t the  respondent  at  Delhi  by\t the
\nDirector-General  of  Supplies.\t  Upon\tthese  facts  it  is
\nmanifest that there was movement of goods from the State  of
\nPunjab to the State of Jammu & Kashmir under the contract of
\nsale  and  there was completion of sale by  the\t passing  of
\nproperty and the delivery of the goods to the purchaser.  As
\npointed out by Venkatarama Ayyar, J. in the Bengal  Immunity
\nCompany case(1) :\n<\/p>\n
\t      “A  sale could be said to begin the course  of
\n\t      interState trade only if two conditions concur
\n\t      : (1) A sale of goods, and (2) a transport  of
\n\t      those  goods from one State to  another  under
\n\t      the  contract  of\t sale.\t Unless\t both  these
\n\t      conditions are satisfied, there can be no sale
\n\t      in the course of inter-State trade.”\n<\/p><\/blockquote>\n
In  the\t present  case,\t both  these  conditions  have\tbeen
\nsatisfied  and\tthe transactions of sale  made\tbetween\t the
\nparties\t were  unquestionably in the course  of\t inter-State
\ntrade.\t Indeed,  the  Solicitor-General on  behalf  of\t the
\nappellants  did not seriously challenge the finding  of\t the
\nHigh Court on his point.\n<\/p>\n
We proceed to consider the next question, viz., whether\t the
\nrespondent  was liable to pay sales tax for the period\tfrom
\nJanuary 1, 1955 to September 6, 1955 in view of the  lifting
\nof the finding of the High Court on this point.
\nOn  behalf  of the respondent Mr. Setalvad put\tforward\t the
\nargument that the Sales Tax Validation Act by itself did not
\nempower\t any State to levy any tax on sales or purchases  in
\nthe  course  of inter-State trade but  it  merely  liberated
\nSales Tax Acts of several States from the fetter imposed  by
\ncl.  (2) of Art. 286 of the Constitution and left the  State
\nAct  to operate in its own terms.  It was submitted that  if
\nthere was no law in a State empowering the levy of a tax  on
\nsales  or  purchases in the course of inter-State  trade  or
\ncommerce, the State could not derive any advantage from\t the
\nSales  Tax  Validation\tAct.   It  was\tcontended  that\t the
\nExplanation to Art. 286 (1) (a) of the Constitution did\t not
\nconfer\tany taxing power on any State Legislature.   On\t the
\ncontrary, it was intended to place a limitation on the State
\ntaxing power and therefore the mere lifting of the ban under
\ncl.  (2) of Art. 286 did not enable the State to impose\t the
\ntax  on\t sales in the course of inter-State trade  and\tsuch
\nlevy of tax could be made
\n(1)  [1955] 2 S.C.R. 603.\n<\/p>\n
157<\/span><\/p>\n
only when the taxing statute of the State expressly provides
\nfor  it.  In our opinion, the argument of  Mr.\tSetalvad  is
\nwell-founded.\tThe question, therefore, arises whether\t the
\nJammu  & Kashmir Motor Spirit (Taxation of Sales) Act,\t2005
\n(hereinafter  called the Act) applies to the sale of  petrol
\nmade by the respondent between January 1, 1955 to  September
\n6,  1955 and whether the appellants can validly\t assess\t the
\nrespondent to sales tax with regard to these transactions.
\nThe  preamble  of  the Act states that it  is  expedient  to
\nprovide for    the levy of a tax on the retail sale of motor
\nspirit.\t Section 2 (g)\t of the Act defines “retail sale” to
\nmean  a\t sale by a retail dealer of any motor  spirit  to  a
\nconsumer  or to any other person for any purpose other\tthan
\nresale.\t  Section 2(f) defines “retail dealer” to  mean\t any
\nperson\twho,  on commission or otherwise,  sells  any  motor
\nspirit to a consumer or to any other person for any  purpose
\nother  than  resale or keeps any motor spirit  for  sale  to
\nconsumers  or to any other persons for purposes\t other\tthan
\nresale.\t  Under\t s.  2(h) of the Act the  words\t “sale”\t and
\n“sell”\tinclude exchange barter and also the consumption  of
\nmotor spirit by the retail dealer himself.  Section 3  deals
\nwith the imposition of tax and reads as follows :\n<\/p>\n
\t      “3.  There  shall be levied and  paid  to\t the
\n\t      Government on all retail sales of motor spirit
\n\t      a\t tax  at  the rate of four  annas  for\teach
\n\t      imperial\tgallon\tof motor spirit or  at\tsuch
\n\t      other  rate  as the Government  may  prescribe
\n\t      from time to time.”\n<\/p><\/blockquote>\n
\t      Section 6 of the Act deals with the  licensing
\n\t      of  the retail dealers and states\t that  after
\n\t      the expiry of a period of two months from\t the
\n\t      commencement of the Act no person shall  carry
\n\t      on business as a retail dealer unless he is in
\n\t      possession  of  a valid  license.\t  Section  7
\n\t      relates to the procedure for grant of licence.
\n\t      Section 7 (4) states as follows :\n<\/p><\/blockquote>\n
\t      “No license under this Act shall be granted to
\n\t      any person who does not hold a license for the
\n\t      storage  of  dangerous  petroleum\t under\t the
\n\t      Petroleum\t Act, 1998, and if any such  license
\n\t      granted under that Act is cancelled, suspended
\n\t      or  is not renewed any license  granted  under
\n\t      this Act to the holder thereof shall be deemed
\n\t      to be cancelled, suspended or not renewed,  as
\n\t      the case may be.”\n<\/p><\/blockquote>\n
It  was\t contended on behalf of the respondent that  no\t tax
\ncould  be levied under the Act unless the assessee  has\t his
\nplace of business
\n158<\/span>
\nor  storage  of\t motor spirit within the State\tof  Jammu  &
\nKashmir.   It  was  pointed out that no\t retail\t dealer\t was
\npermitted  to carry on business as a retail dealer of  motor
\nspirit\tunless he holds a license for storage  of  petroleum
\nunder  the  State Petroleum Act.  It is\t admitted  that\t the
\nrespondent had no storage depot or place of business  within
\nthe  State of Jammu & Kashmir at the material time.   It  is
\nalso  conceded that the respondent did not hold any  licence
\nfor  storage  of  petrol within\t the  State.   Mr.  Setalvad
\ntherefore contended that the appellants were not  authorised
\nto  levy sales-tax under the provisions of the Act.  We\t are
\nunable\tto accept this contention as correct.  The  charging
\nsection\t s. 3 authorises the Government to levy tax on\t“all
\nretail sales of motor spirit” at the rate of four annas\t for
\neach  imperial gallon of motor spirit or at such other\trate
\nas  the\t Government may prescribe from time  to\t time.\t The
\ncharging  section does not require that for the\t purpose  of
\nassessment  of\ttax the assessee should have  his  place  of
\nbusiness  or his storage depot within the State of  Jammu  &
\nKashmir.   Nor is it a requirement of the section  that\t the
\nassessee should hold a licence of a retail dealer under\t the
\nAct.  The provisions in regard to licence contained in ss. 6
\nand  7 deal with the machinery of collection and it  is\t not
\npermissible, in our opinion. to construe the language of  s.
\n3  of the Act with reference to ss. 6 and 7 or to place\t any
\nrestriction on the scope and effect of the charge of tax  in
\nthe  context  of these sections.  We may, in  this  context,
\nrefer to the provisions of S. 10 of the Act which states
\n\t      “10.whoever contravene the provides of section
\n\t      6\t shall\tbe, punishable with fine  which\t may
\n\t      extend  to  one thousand rupees or  to  a\t sum
\n\t      double the amount of tax due in respect of the
\n\t      sale  of any motor spirit conducted by  or  on
\n\t\t\t    behalf of such person, whichever is gr
\neater.”\n<\/p>\n
It  is evident from the section that a person who trades  in
\npetrol without taking out a licence under s. 6 of the Act is
\nliable\tto  pay double the amount of tax due from  him.\t  In
\nother  words.  the requirement of s. 6 is only a  matter  of
\nmachinery  and does not affect the liability of\t the  person
\nwho  trades  in\t petrol to pay tax in  accordance  with\t the
\ncharging section.  It follows therefore that the  respondent
\nwill  be liable to pay sales-tax if it is shown that it\t has
\nmade retail sales of motor spirit within the meaning of s. 3
\nof  the\t Act.\tThis takes us to the  question\twhether\t the
\ntransactions of sale between January 1, 1955 to September 6,
\n1955 were “retail sales of motor spirit” within the  meaning
\nof S. 3 of the Act.  As observed earlier, the procedure\t for
\nsupply\tof  petrol  was that the officer  in-charge  of\t the
\nNandpur
\n159<\/span>
\nfarm placed indents on the Pathankot depot of the respondent
\nfor supplies of specified quantities of petrol to the  farm.
\nOn receipt of the indent the Pathankot depot transported the
\npetrol\tin its own tank-lorries to Nandpur within the  State
\nof   Jammu  and Kashmir and decanted the petrol in  its\t own
\nunderground tanks where it was measured by means of  dipping
\nrods  and  approved by the indenting officer  and  was\tthen
\ndelivered  to Nandpur farm.  In this state of facts  it\t was
\ncontended by the Solicitor-General that the property in\t the
\npetrol\tpassed to Nandpur farm inside the State of  Jammu  &
\nKashmir.   It was submitted that the sales were,  therefore,
\nliable to be taxed under s. 3 of the Act for the period from
\nJanuary\t 1,  1955  to September 6, 1955\t when  the  ban\t was
\nremoved.  On behalf of the respondent Mr. Setalvad said that
\nthere was appropriation of the goods to the contract at\t the
\nbulk depot of the, respondent at Pathankot and therefore the
\nproperty  of  the  goods  passed  to  the  Nandpur  farm  at
\nPathankot  outside  the State of Jammu & Kashmir.   No\tsuch
\nargument  appears  to have been advanced on  behalf  of\t the
\nrespondent  before the High Court which decided the case  on
\nthe assumption that there was appropriation of the goods  to
\nthe  contract  at Srinagar when the petrol  was\t transferred
\nfrom  the  tank-lorries of the respondent  for\tdelivery  to
\nNandpur\t farm  and  measured by means of  dipping  rods\t and
\napproved  by  the  indenting officer.  The  question  as  to
\npassing of title of goods is essentially a question of\tfact
\nand we must deal with the present case on the same basis  as
\nthe  High  Court has done, viz., that there was\t passing  of
\ntitle  inside the State of Jammu & Kashmir.  We\t accordingly
\nhold that s. 3 of the Act applies to transactions of sale of
\npetrol made by the respondent for the period from January 1,
\n1955  to September 6, 1955 and assessment of sales-tax\tmade
\nby the taxing authorities for this period is legally valid.
\nIt  was lastly contended by the Solicitor-General  that\t the
\nHigh  Court was in error in taking the view that the  taxing
\nauthorities  were  not entitled to levy\t sales-tax  for\t the
\nperiod\tfrom January 1, 1955 to September 6,  1955,  because
\nthe  assessment\t was  one composite whole  relating  to\t the
\nentire\tperiod\tfrom January 1, 1955 to May, 1959,  and\t the
\nassessment which was bad in part was infected throughout and
\nmust  be treated as invalid.  In our opinion, the  criticism
\nof  the Solicitor-General on this point is well-founded\t and
\nmust be accepted as correct.  It is true that there was\t one
\norder  of assessment for the period from January 1, 1955  to
\nMay,  1959  but the assessment can be easily  split  up\t and
\ndissected  and the items of sale can be separated and  taxed
\nfor differ-\n<\/p>\n
160<\/span><\/p>\n
ent  periods.  In  reading the conclusion  that\t the  entire
\nassessment  was\t invalid the High Court has  relied  on\t the
\ndecision  of  the  Judicial Committee  in  Bennett  &  White
\n(Calgary) Ltd. v. Municipal District of Sugar City No.\t5(1)
\nin  which Lord Reid observed as follows at page 816  of\t the
\nReport :\n<\/p>\n
\t      “When an assessment is not for an entire\tsum,
\n\t      but for separate sums, dissected and earmarked
\n\t      each of them to a separate assessable item,  a
\n\t      court  can sever the items and cut out one  or
\n\t      more  along  with the sum\t attributed  to\t it,
\n\t      while  affirming the residue.  But  where\t the
\n\t      assessment consists of a single undivided\t sum
\n\t      in respect of the totality of property treated
\n\t      as  assessable,  and when one  component\t(not
\n\t      dismissible  as “de minimis”) is on  any\tview
\n\t      not assessable and wrongly included, it  would
\n\t      seem  clear that such a procedure\t is  barred,
\n\t      and the assessment is bad wholly.”\n<\/p><\/blockquote>\n
But  the  principle has no application in the  present\tcase
\nbecause\t the sales-tax is imposed, in ultimate analysis,  on
\nreceipts  from\tindividuals  sales  or\tpurchases  of  goods
\neffected  during  the entire period and it  is\tpossible  to
\nseparate  the  assessment of the receipts derived  from\t the
\nsales  for the period from January 1, 1955 to  September  6,
\n1955  and  to allow the taxing authorities  to\tenforce\t the
\nstatute\t with  respect\tto the sales taking  place  in\tthis
\nperiod\tand  also  prevent  them by grant  of  a  writ\tfrom
\nimposing  the  tax  with regard to sales  for  the  exempted
\nperiod.\t In other words, the assessment for the period\tfrom
\nJanuary\t 1, 1955 to September 6, 1955 can be  separated\t and
\ndissected from the assessment of the rest of the period\t and
\nthe  High Court was in error in holding that the  assessment
\nfor the entire period was invalid in toto.  The view that we
\nhave expressed is borne out by the decision of this Court in
\nThe State of Bombay v. The United Motors (India) Ltd.<\/a> (2).
\nFor  these  reasons we allow this appeal in part  and  order
\nthat  the respondent should be granted a writ in the  nature
\nof  mandamus directing the appellants not to realise  sales-
\ntax  with regard to transactions of sale between the  period
\nfrom September 7, 19 55 to May, 1959 but the respondent will
\nnot  be entitled to any writ with regard to transactions  of
\nsale  between  January 1, 1955 to September  6,\t 1955.\t The
\nappeal is accordingly allowed to this extent but the parties
\nwill bear their own costs.\n<\/p>\n
Appeal allowed in part.\n<\/p>\n
(1)  [1951] A.C. 786.\n<\/p>\n
(2)  [1953] S.C.R. 1069 at p. 1097.\n<\/p>\n
161<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Jammu & Kashmir And Others vs Caltex India (Ltd.) on 17 December, 1965 Equivalent citations: 1966 AIR 1350, 1966 SCR (3) 149 Author: V Ramaswami Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Ramaswami, V., Satyanarayanaraju, P. PETITIONER: STATE OF JAMMU & KASHMIR AND OTHERS Vs. RESPONDENT: CALTEX INDIA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-171518","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Jammu & Kashmir And Others vs Caltex India (Ltd.) on 17 December, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-jammu-kashmir-and-others-vs-caltex-india-ltd-on-17-december-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Jammu & Kashmir And Others vs Caltex India (Ltd.) on 17 December, 1965 - 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