{"id":67930,"date":"2002-07-18T00:00:00","date_gmt":"2002-07-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/for-vs-for-on-18-july-2002"},"modified":"2014-06-24T10:27:39","modified_gmt":"2014-06-24T04:57:39","slug":"for-vs-for-on-18-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/for-vs-for-on-18-july-2002","title":{"rendered":"!For vs ^For on 18 July, 2002"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">!For vs ^For on 18 July, 2002<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN  THE  HIGH  COURT  OF  JUDICATURE  AT  MADRAS\n\nDated: 18\/07\/2002\n\nCoram\n\nThe Honourable Mr Justice V.S. SIRPURKAR\nand\nThe Honourable Mr Justice N.V. BALASUBRAMANIAN\n\nT.C. Appeal No.325 OF 1995\n\n\nTvl. Kannan Art Calenders              ::\nSivakasi                                                     Appelllant\n\n-Vs-\n\nThe State of Tamilnadu, rep. by\nCommercial Tax Officer-I                    ::        Respondent\n\n\nTax Case Appeals under Sec.37 of the TNGST Act\nagainst the orders passed by the\nJoint commissioner (R.P.), Commercial Taxes, Sivakasi\n\n!For Appellants     ::  Mr A. Thiagarajan\n\n^For Respondent     ::  Mr S.V. Radhakrishnan, G.A.\n\n:JUDGMENT\n<\/pre>\n<p>V.S. SIRPURKAR, J.\n<\/p>\n<p>                The  present  appeal  under  Sec.37  of the Tamil Nadu General<br \/>\nSales Tax Act (in short \u201cthe TNGST Act\u201d) challenges the  order  of  the  Joint<br \/>\nCommissioner  of  Commercial  Taxes-III  (SMR),  dated 18-10-1994, whereby the<br \/>\nJoint Commissioner, under his suo motu revisional jurisdiction under Sec.34 of<br \/>\nthe TNGST  Act,  had  upset  the  order  passed  by  the  Appellant  Assistant<br \/>\nCommissioner  (CT),  Virudhunagar and restored the earlier order passed by the<br \/>\nAssistant  Commercial  Tax  Officer,  Sivakasi  thereby,   the   turnover   of<br \/>\nRs.2,51,392\/-  and  Rs.98,440\/-  was  restored  and  the  tax  thereon  with a<br \/>\nsurcharge levy was ordered to be levied under the TNGST Act and Central  Sales<br \/>\nTax Act  (in  short  \u201cthe  CST  Act\u201d).  The following facts will highlight the<br \/>\ncontroversy involved.\n<\/p>\n<p>                2.  Assessee   Tvl.     Kannan  Art  Calenders,  Sivakasi  was<br \/>\noriginally assessed under the CST Act for the year 1988-89  by  the  Assistant<br \/>\nCommissioner, Commercial Tax-IV, Sivakasi on a taxable turnover of Rs.7,011\/-.<br \/>\nSubsequently,  it  was  found  that  the  sales  of educational charts such as<br \/>\nAlphabet Chart, Number Chart, etc.  were not assessed  to  tax.    The  entire<br \/>\nturnover  of Rs.90,440\/- was therefore treated by him as a sale of educational<br \/>\ncharts (printed materials) and was assessed to tax at 10%.\n<\/p>\n<p>                2.1.  During the appeal, the  assessee  urged  that  the  text<br \/>\nbooks, alphabet charts, etc.  were exempted from tax as they were only reading<br \/>\nmaterial  and  children\u2019s  books and, therefore, the turnover was liable to be<br \/>\nsatisfied.  The appellate authority considered the clarification issued by the<br \/>\nDepartment in K.Dis.110999\/84 Acts Cell.II dated 24-7  -1984  wherein  it  was<br \/>\nstated that all printed materials (other than the reading books including text<br \/>\nbooks, students  note  books and copy books) were liable to tax.  The turnover<br \/>\nof the assessee was in respect of the text books, alphabet charts, etc.  which<br \/>\nwere printed and sold by the assessee.  He came to the conclusion  that  those<\/p>\n<p>charts and  books  were  \u201creading  books\u201d  meant to educate the children.  He,<br \/>\ntherefore, found that they were the \u201creading books\u201d and as  such  exempt  from<br \/>\nthe tax liability.  He, therefore, allowed the appeal.\n<\/p>\n<p>                2.2.   A  show  cause  notice  dated  24-5-1994 was thereafter<br \/>\nissued to the assessee wherein the Joint  Commissioner  (RP)  Madras  took  an<br \/>\nobjection   that   the   assessee-dealer   was  only  a  \u201cprinter\u201d;  that  the<br \/>\nassessee-dealer was  not  a  dealer  in  reading  books  or  text  books  and,<br \/>\ntherefore, they  could  not enjoy the exemption.  According to the notice, the<br \/>\namount realised on the sale was not for the sale of books  but  for  the  work<br \/>\nrelating to  the printing of the books.  A further clarification issued by the<br \/>\nCommissioner of Commercial Taxes, dated 13-5-1985 was also relied upon wherein<br \/>\nit was clarified that such exemption of reading books was not available to the<br \/>\nprinters and was available only to the actual sellers.  On the basis  of  this<br \/>\nshow  cause  notice,  the Joint Commissioner came to the conclusion ultimately<br \/>\nthat the intention of the assessee was to sell only  the  \u201cprinted  materials\u201d<br \/>\nand not  the  \u201creading books\u201d or the \u201ctext books\u201d.  He, therefore, came to the<br \/>\nconclusion that the assessee was not entitled to the exemption.  According  to<br \/>\nhim,  the  exemption  notification was applicable only to the \u201c reading books\u201d<br \/>\nincluding the \u201ctext books\u201d.  The appellate order was,  therefore,  set  aside.<br \/>\nThe said order by the Joint Commissioner is in challenge before us.\n<\/p>\n<p>                3.  Mr.   A.    Thiagarajan, learned counsel for the assessee,<br \/>\nhas taken us through the entries right from the beginning  when  the  \u201creading<br \/>\nbooks\u201d  including  \u201ctext  books\u201d  were exempted under Sec.17 of the TNGST Act.<br \/>\nThe first such exemption came vide  G.O.    Ms.976  Rev.    Dated  28-3-19  59<br \/>\nwhereby,  with  effect from 1-4-1959, the sale of reading books, including the<br \/>\ntext books, by any dealer was exempted from tax.  A \u201c school atlas\u201d  was  also<br \/>\nconsidered to  be  a  \u201cbook\u201d  under that head.  The next Government Order came<br \/>\nvide G.O.  No.4725 Rev.  Dated 30th April, 1961 whereunder the sale of reading<br \/>\nbooks including text books was exempted from tax.  The next  Government  Order<br \/>\nin the  line  is  G.O.Ms.    No.40  Rev.,  dated 6-1-1969 whereunder again the<br \/>\nreading books including the text books were exempted from  the  levy  of  tax.<br \/>\nLearned  counsel  then  pointed out that a number of clarifications came to be<br \/>\nissued whereunder even the printer, who prints and sell the reading books like<br \/>\nalphabet charts, number charts, table books on places of  tourist  importance,<br \/>\nreligious songs,  images  of Gods, photographs of national leaders, etc.  were<br \/>\nexempted from tax.  Learned counsel also filed  the  clarification  issued  in<br \/>\nthat behalf  bearing  No.CEL-III 33120\/92 dated 1 6-3-1992.  It will be better<br \/>\nto quote the three clauses by way of this clarification:<br \/>\n\u201c       (i) The printers, who print and  sell  reading  books  like  Alphabet,<br \/>\nTable Books on places of Tourist importance (Kanyakumari, Kancheepuram, etc.),<br \/>\nReligious songs, Gods, National Leaders Photos, etc.  are not liable to tax in<br \/>\nview of the Notification dated 6-1-1979 issued by the Government.\n<\/p>\n<p>        (ii)  In  the case of printers who undertake printing and supplying of<br \/>\nbooks for specific customers, the material to be printed is obtained from  the<br \/>\ncustomers  and  after  deciding  on  the type of paper, wrapper, cover design,<br \/>\ngeneral layout, etc., with customer, the printer print and supply the books to<br \/>\nthe customers.  The printer uses his own goods including paper,  ink,  binding<br \/>\nmaterials etc.    In  such cases, it is only \u2018works contract\u2019 liable to tax in<br \/>\nterms of Section 3-B of the Tamil Nadu General Sales Tax Act and in the  light<br \/>\nof the Supreme Court decision reported in 73 STC 370.\n<\/p>\n<p>        (iii) In the case of the printer undertaking the work of printing from<br \/>\nthe  customer,  where  the  customer  supplies  paper and other goods required<br \/>\n(printing ink, binding\/stitching materials, etc.) it will  be  a  pure  labour<br \/>\nwork not  liable  to  tax.    But if the printer uses any of his materials, he<br \/>\nshall be liable to tax on such materials in the light  of  the  Supreme  Court<br \/>\ndecision reported in 73 STC 370.\u201d<\/p>\n<p>Heavily  relying  on these clarifications, learned counsel argues that firstly<br \/>\nthe alphabet charts sold by the appellant herein were the \u201c books\u201d or  as  the<br \/>\ncase  may  be  \u201creading  books\u201d  and  it could not be said that they were mere<br \/>\n\u201cprinted materials\u201d.  Learned counsel stretches his argument further and  says<br \/>\nthat the  exemption  granted under G.O.Ms.  No.40 could not be held restricted<br \/>\nto a dealer in the reading books and text books  and  thus  printed  materials<br \/>\nlike alphabet  charts,  number  charts,  etc.    were  nothing  but a \u201creading<br \/>\nmaterial\u201d meant for educating the children.  Therefore,  they  would  squarely<br \/>\ncovered  under  the entry of \u201cbook\u201d, \u201creading book\u201d or \u201ctext book\u201d as the case<br \/>\nmay be.  Learned counsel further argues and in our opinion  rightly  that  the<br \/>\nentry did  not  restrict  itself only to the dealer.  It covered the sale by a<br \/>\nprinter of these printed materials like alphabet charts.\n<\/p>\n<p>                4.  As against this, a  decision  was  cited  by  the  learned<br \/>\ncounsel appearing  for  the Department in <a href=\"\/doc\/1958981\/\">State of Tamil Nadu v.  Papco Offset<br \/>\nPrinting Works<\/a> (118 STC 160) wherein this Court held that  what  was  exempted<br \/>\nwas  the  sales  by  the  dealer  of  reading books which included text books.<br \/>\nTherefore, if a dealer had simply printed certain material  according  to  the<br \/>\nspecifications  of  some publisher, charging them with price with reference to<br \/>\nthe cost of paper, ink, etc.  and had never compiled any books for reading nor<br \/>\neffected sale of such reading books such dealer would be outside the  umbrella<br \/>\nof exemption.   In that case, it was held that such sales could not fall under<br \/>\nitem 22 of the Schedule to the notification.\n<\/p>\n<p>                5.  On these rival submissions, it will be for us to decide as<br \/>\nto whether the dealer in this case was entitled to the exemption.\n<\/p>\n<p>                6.  Two questions would fall for our consideration, viz.:<br \/>\nAre the alphabet charts the books or as the case may be reading books so as to<br \/>\nbe covered under Entry 22?\n<\/p>\n<p>Whether the exemption available to the sale of  reading  books  including  the<br \/>\ntext  books  is  available  to  the printer who prints the alphabet charts and<br \/>\nsells them?\n<\/p>\n<p>                7.  In so far as the first question is concerned our task  has<br \/>\nbecome  fairly  easy  because  of the judgment of this Court in <a href=\"\/doc\/659991\/\">State of Tamil<br \/>\nNadu v.  Mundran Kala Mandir<\/a> (46 STC  365).    The  question  which  fell  for<br \/>\nconsideration  there  was  whether the guide-map of Greater Bombay having some<br \/>\nmaterial to read could be said to be a book.  What fell for consideration  was<br \/>\na  map  simpliciter  with  some  information  about the city of Bombay and the<br \/>\ntourist spots therein on the next page.  The learned  Judges  agree  that  the<br \/>\nearlier judgment in  <a href=\"\/doc\/434667\/\">S.R.   &amp; Company v.  State of Tamil Nadu<\/a> (42 STC 99) that<br \/>\nthe entry was not  happily  worded  and  that  the  reading  books  should  be<br \/>\nunderstood as  books  for  reading  or  books meant for reading.  In that case<br \/>\nalso, the said test was applied and the learned Judges  had  held  that  three<br \/>\npublications  which  fell for consideration were books for reading so as to be<br \/>\neligible for exemption.  Relying on  that  decision,  the  learned  Judges  in<br \/>\nMundran Kala Mandir case, cited supra, also pointed out that the map contained<br \/>\nthe  description  of Bombay, its history, places of interest and various other<br \/>\ndetails which would be of importance to a tourist or to a visitor  who  visits<br \/>\nBombay for the first time.  The learned Judges, therefore, classified the said<br \/>\nmap  as a \u201cbook for reading\u201d and, therefore, within the umbrella of exemption.<br \/>\nThe  situation  cannot  be  said  to  be  any  different  under  the   present<br \/>\ncircumstances.   In  fact,  the alphabet chart is a basic first book which the<br \/>\nchild is taught whereby the  child  starts  recognising  the  alphabet.    The<br \/>\nalphabet  chart  is  not only an article like wall-hanging; it is a basic book<br \/>\nfor reading, knowing and understanding which the child takes  the  first  step<br \/>\ntowards literacy.    It  will  be therefore a travesty to say that an alphabet<br \/>\nchart is not a book.  It is in fact the first and basic reading  book  in  the<br \/>\nlife of  a  child.  It may not be in the form of a book but then the thrust of<br \/>\nthe entry is on the \u201creading\u201d material and not on the \u201cform\u201d thereof.  In  our<br \/>\nopinion, therefore, the alphabet chart must be deemed to be a \u201cbook\u201d meant for<br \/>\nreading.   Going  a  step  ahead,  we may even say that an alphabet chart is a<br \/>\nfirst text book for a child also because it  cannot  differ  in  case  of  the<br \/>\nchildren who  are  going  to  learn  the alphabet.  The content or the reading<br \/>\nmaterial is going to be the same.    In  our  opinion,  therefore,  the  Joint<br \/>\nCommissioner has committed an error in not treating the alphabet chart to be a<br \/>\n\u201cbook\u201d.   However,  the  matters  do  not  step  here  and  that takes for the<br \/>\nconsideration of the second question.\n<\/p>\n<p>                8.  According to the Joint Commissioner, the dealer was merely<br \/>\na printer and he merely printed those charts and sold them.  It is really  not<br \/>\nunderstandable  as  to  what  the  Joint Commissioner meant by saying that the<br \/>\nintention of this dealer, who was a printer, was not to  sell  the  books  but<br \/>\nonly \u201cprinted  material\u201d.  The confusion has cropped in because of not reading<br \/>\nthe entry in its full potential.  Unfortunately, the decision in Mundran  Kala<br \/>\nMandir, cited  supra,  was  not  cited  before the Joint Commissioner.  If the<br \/>\nentry is to be read in terms of that judgment then, the entry \u201creading  books\u201d<br \/>\nwould have  to be read as the \u201cbooks for reading\u201d.  Therefore, it could not be<br \/>\nheld by the Joint Commissioner that the intention was merely  to  sell  the  \u201c<br \/>\nprinted material\u201d because, in our opinion, that printed material, in this case<br \/>\nalphabet charts,  was  nothing  but a \u201creading book\u201d.  This premise is further<br \/>\nstrengthened by the subsequent clarification issued by  the  Department  dated<br \/>\n16-3-1992  wherein  the  books  like alphabet charts, table books on places of<br \/>\ntourist importance, religious  songs,  images  of  Gods,  photos  of  National<br \/>\nleaders, etc.  are also considered to be the \u201cbooks\u201d and the printers of these<br \/>\nmaterials, who sell such articles are also held entitled to the exemption vide<br \/>\nthe notification  dated  6 -1-1969.  It is for this reason that we ventured to<br \/>\nquote all the three clauses of the clarification.\n<\/p>\n<p>                9.  There would be one other way of looking at this, that  is,<br \/>\nmerely  because  a person prints the alphabet charts which are undoubtedly the<br \/>\nreading books and sells them  could  he  be  said  to  be  excluded  from  the<br \/>\nexemption.   In  our opinion, the said course would not be open in view of the<br \/>\nclarification issued on 23-5-1988 bearing No.Acts CellII  51741\/88  wherein  a<br \/>\nclarification  was issued to the effect that reading books, including the text<br \/>\nbooks, were exempt from the tax.  That would  completely  delete  the  \u201cdealer<br \/>\naspect\u201d of  the matter.  After all, if a person prints reading books and sells<br \/>\nthem he could be safely called the \u201cdealer\u201d of the books as  has  happened  in<br \/>\nthis case.    In  that view, we are of the opinion that the Joint Commissioner<br \/>\nhas erred.\n<\/p>\n<p>                10.  Even without having to take the recourse of going to  the<br \/>\nclarification  dated  23-5-1988  or for the subsequent clarification issued on<br \/>\n16-3-1992 it can be seen that in the judgment in BUILDERS ASSOCIATION OF INDIA<br \/>\nAND OTHERS v.  UNION OF INDIA AND OTHERS (73 STC 370)  while  considering  the<br \/>\nimplications  of  the sales involved in the works contract the Apex Court held<br \/>\nin respect of the materials used in the works  contract  that  their  transfer<br \/>\nwould amount to deemed sale.  The deeming fiction was based on the Forty-sixth<br \/>\nAmendment  whereby  Art.366(2 9A) was introduced and as per sub-clauses (a) to\n<\/p>\n<p>(f) of Clause (29-A), transfer, delivery or supply of any goods was deemed  to<br \/>\nbe a  sale  of  those  goods.    The  Apex  Court  in  that  case  upheld  the<br \/>\nconstitutional validity of the amendment and came to the conclusion that under<br \/>\nsub-clause (b)  of  clause  (29-A)  that  the  goods  for  construction  which<br \/>\nultimately  are  transferred  would  amount to a sale and for that purpose the<br \/>\nworks contract which till then was considered to be indivisible was held to be<br \/>\ndivisible.  Therefore, in a case where a printer supplies  the  goods  on  the<br \/>\nbasis of a contract given to him and recovers the price of the paper and other<br \/>\nmaterials  and  in addition to it recovers the printing charges at least in so<br \/>\nfar as the goods are supplied that would amount to a  deemed  sale.    If  the<br \/>\nactual of the printed material has been exempted then the same exemption would<br \/>\nbe applicable  even  to  the  deemed  sales.    We have already shown that the<br \/>\nprinted material concerned in this case,  viz.    A  B  C  D  Alphabet  Charts<br \/>\namounted  to the books and, therefore, the sale of that material was liable to<br \/>\nbe exempted for the purposes of sales tax.    Therefore,  the  said  exemption<br \/>\nwould  equally  apply  to  the printed material also and the assessee would be<br \/>\nentitled to succeed on this count also.\n<\/p>\n<p>                11.  Before we close,  we  have  to  take  the  stock  of  the<br \/>\ndecision in  Papco  Offset  Printers case, cited supra.  We must hasten to add<br \/>\nthat the learned Judges therein were not called upon to decide the question as<br \/>\nto whether the alphabet chart could be said to be a \u201cbook\u201d.    In  fact,  that<br \/>\nquestion  was  never  argued  before  the  leaned  Judges since the matter was<br \/>\ndecided ex parte as no one appeared on behalf of the assessee.  The assessment<br \/>\nyear in that case was also 1985-86.  However, the clarification issued by  the<br \/>\nDepartment  was not made available to the learned Judges; nor was the judgment<br \/>\nin Mundran Kala Mandir case, cited supra, was brought to  the  notice  of  the<br \/>\nlearned Judges.    Again what the printed material was also not clear from the<br \/>\njudgment.  We do not know as to whether the learned  Judges  were  considering<br \/>\nthe  alphabet charts or some other thing because there is no indication in the<br \/>\njudgment that they were considering the alphabet charts.  In that view, we are<br \/>\nof the clear opinion that the judgment in Papco Offset  Printers  case,  cited<br \/>\nsupra, would be of no help to the State.\n<\/p>\n<p>                12.   On  the  whole,  it  will have to be held that the Joint<br \/>\nCommissioner had  erred  in  upsetting  the  order  passed  by  the  Appellate<br \/>\nAssistant Commissioner.    The  order  passed  by  the  Joint Commissioner is,<br \/>\ntherefore,  set  aside  and  the  order  passed  by  the  Appellate  Assistant<br \/>\nCommissioner is restored.  The appeal is allowed.  No costs.\n<\/p>\n<p>Index:Yes<br \/>\nWebsite:Yes<br \/>\n(V.S.S., J.) (N.V.B., J.)<\/p>\n<p>Jai<br \/>\n18-07-2002<\/p>\n<p>To:\n<\/p>\n<p>1.  The Assistant Commercial Tax Officer IV, Sivakasi<\/p>\n<p>2.  The Commercial Tax Officer-I, Sivakasi<\/p>\n<p>3.  The Appellate Assistant Commissioner (CT)<br \/>\nVirudhunagar<\/p>\n<p>4.  The Joint Commissioner-III(SMR) of Commercial Taxes<br \/>\nOffice of the Special Commissioner and Commissioner<br \/>\nof Commercial Taxes, Chepauk, Chennai-5<\/p>\n<p>5.  The Assistant Commercial Tax Officer-IV, Sivakasi<\/p>\n<p>6.  The Principal Commissioner and Commissioner<br \/>\nof Commercial Taxes, Madras<\/p>\n<p>7.  The Joint Commissioner (RP)<br \/>\nOffice of the Principal Commssioner and<br \/>\nCommissioner of Commercial Taxes, Madras<\/p>\n<p>V.S.  SIRPURKAR, J.\n<\/p>\n<p>And<br \/>\nN.V.  BALASUBRAMANIAN, J.\n<\/p>\n<p>JUDGMENT in<br \/>\nT.C.(A) No.325 of 1995<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court !For vs ^For on 18 July, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 18\/07\/2002 Coram The Honourable Mr Justice V.S. SIRPURKAR and The Honourable Mr Justice N.V. BALASUBRAMANIAN T.C. Appeal No.325 OF 1995 Tvl. Kannan Art Calenders :: Sivakasi Appelllant -Vs- The State of Tamilnadu, rep. by Commercial Tax [&hellip;]<\/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":[8,13],"tags":[],"class_list":["post-67930","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>!For vs ^For on 18 July, 2002 - Free Judgements of Supreme Court &amp; 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\/for-vs-for-on-18-july-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"!For vs ^For on 18 July, 2002 - Free Judgements of Supreme Court &amp; 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