{"id":85383,"date":"1975-07-29T00:00:00","date_gmt":"1975-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sales-tax-officer-special-vs-tata-oil-mills-co-ltd-on-29-july-1975"},"modified":"2018-09-06T17:13:12","modified_gmt":"2018-09-06T11:43:12","slug":"sales-tax-officer-special-vs-tata-oil-mills-co-ltd-on-29-july-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sales-tax-officer-special-vs-tata-oil-mills-co-ltd-on-29-july-1975","title":{"rendered":"Sales Tax Officer, Special … vs Tata Oil Mills Co. Ltd on 29 July, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sales Tax Officer, Special … vs Tata Oil Mills Co. Ltd on 29 July, 1975<\/div>\n
Equivalent citations: 1975 AIR 1991, \t\t 1976 SCR (1) 152<\/div>\n
Author: H R Khanna<\/div>\n
Bench: Khanna, Hans Raj<\/div>\n
           PETITIONER:\nSALES TAX OFFICER, SPECIAL CIRCLE, ERNAKULAM & ANR.\n\n\tVs.\n\nRESPONDENT:\nTATA OIL MILLS CO. LTD.\n\nDATE OF JUDGMENT29\/07\/1975\n\nBENCH:\nKHANNA, HANS RAJ\nBENCH:\nKHANNA, HANS RAJ\nBEG, M. HAMEEDULLAH\nGUPTA, A.C.\n\nCITATION:\n 1975 AIR 1991\t\t  1976 SCR  (1) 152\n 1975 SCC  (2) 304\n\n\nACT:\n     Kerala Genera  Sales Tax  Act (15 of 1963) s. 22(3) and\nKerala General\tSales Tax Rules, 1963,\t9(1) Constitution of\nIndia\t 1950,\tVII  Schedule,\tList  II,  Entry  54-Section\nproviding for  payment to  Govt. of tax wrongly collected-if\nultra vires.\n\n\n\nHEADNOTE:\n     According to  r. 9(1)  of the  Kerala General Sales-tax\nRules framed  under. the Kerala General Sales-tax Act, 1963,\nin determining\tthe taxable  turnover of a dealer the excise\nduty, if any, paid by the dealer to the Government of Kerala\nor to the Central Government in respect of the goods sold by\nhim shall  be deducted.\t Section ,22(3)\t of the Act provides\nthat if\t any dealer  or person\tcollects tax on transactions\nnot liable  to tax  under the  Act or  in excess  of the tax\nleviable under\tthe Act\t such dealer  or person shall pay to\nthe Government.\t in addition  to the tax payable, the amount\nso collected  unless it was refunded to the person from whom\nit was collected.\n     The respondent  deducted the  sum paid  by it as excise\nduty from  its total turnover for the purpose of determining\nthe taxable  turnover. The respondent, however, when it sold\nthe goods.  had collected,  sales-tax from the purchasers on\nthe invoice  prices without  deducting therefrom  the excise\nduty paid in respect of the said goods. This resulted in the\nrespondent realising  a\t sum  in  excess  of  the  sales-tax\npayable in  respect of\tthe goods  sold by it. The Sales-tax\nofficer held  that the\trespondent was\tliable to  pay\tthat\namount to  the Government  under s. 22(3). The writ petition\nfiled by the respondent was allowed by the High Court on the\nground that  s. 22(3)  was not\tcovered by  Entry 54  of the\nState List  in the  VII Schedule  to the  Constitution,\t and\nhence, beyond the competence of the Slate Legislature.\n     Dismissing the appeal to this Court.\n^\n     HELD: (1)\tEntry 54  empowers the State Legislatures to\nmake laws,  except in  certain cases, in respect of taxes on\nthe sale or purchase of goods. As long as the law relates to\ntaxes on  the sale  or purchase of goods, it would be within\ntheir-\tlegislative   competence.  But,\t  it  would  not  be\npermissible for.  the State legislature to enact a law under\nEntry 54  for recovery by the State of an amount which could\nnot be\trecovered as sales-tax or purchase-tax in accordance\nwith the  law on  the subject and which was wrongly realised\nby a  dealer as\t sales-tax or purchase-tax. Such a l.. would\nnot be\ta law  relating to  tax of  the sale  or purchase of\ngoods but  would be  one in  respect of\t an  amount  wrongly\nrealised by a dealer as sales-tax or purchase-tax. [1 55A-C]\n     (2) The  ambit of\tancillary or  incidental power would\nnot go\tto the\textent\tof  permitting\tthe  Legislature  to\nprovide that.  though the  amount collected, may be wrongly,\nbe way\tof tax,, was not tax, it shall still be paid over to\nthe Government as if it were a tax. [156D-E]\n     (3) The  fact that\t the amount realised is in excess of\nthe tax\t leviable and  not as  amount which  was not  at all\npayable as  tax, would\tnot make  any difference. Any amount\nrealised by  a dealer in excess of the tax leviable, stands,\nfor the\t purpose of  determining the  legislative competence\nunder Entry  54, on the same footing as an amount not due as\ntax under  the Act. Tax, according to s. 2(xxiv) of the Act,\nmeans tax payable under the Act. This necessarily means that\neverything outside  it, collected by the dealer. would be an\nexaction not  authorised by  the Act.  The amount  which was\nrealised by  the respondent in excess of what was due as tax\ncannot be  held to  be tax,  because, such excess amount was\nnot tax\t payable under\tthe Act.  If the  State\t Legislature\ncannot make  a law  under Entry\t 54 directing payment to the\nState of  any amount  collected as  tax on  transactions not\nliable\tto   lax  under\t  the  Act,  it\t would\tlikewise  be\nincompetent to\tmake a law directing payment to the State of\nan amount  realised by a dealer in excess of the tax payable\nunder the Act. [157G-158C]\n153\n     R. Abdul  Quader & co. v. Sales Tax Officer , Hyderabad\n[1964] SCR 867 and Ashoka Marketing Ltd. v. State of Bihar &\nAnr.<\/a> [1970] SCR 455 followed.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL. APPELLATE  JURISDICTION: Civil Appeal Nos. 1988-
\n1989 of 1970.\n<\/p>\n
     From the  Judgment and  order dated  the  29th  day  of
\nOctober, 1968  of the  Kerala High  Court in W.P. No. 156 of
\n1967.\n<\/p>\n
     V. A.  Seiyed Muhamad  and\t K.  M.\t K.  Nair,  for\t the
\nappellant (In C.A.No. 1988\/70.\n<\/p>\n
     K. M. K. Nair, for the appellant (In C.A. No. 1989\/70)
\n     G. B. Pai, A. G. Meneses, for the respondent.
\n     The Judgment of the Court was delivered by
\n     KHANNA, J.-This judgment would dispose of civil appeals
\nNo. 1989  and 1989 of 1970, Filed on certificate against the
\njudgment of  the Kerala\t High Court, whereby that court held
\nthat it\t was beyond  the competence of the State Legislature
\nto enact  law contained\t in sub section (3) of section 22 of
\nthe Kerala  General Sales  Tax Act,  1963 (Act\t15 of  1963)
\n(hereinafter referred  to as  the  Act)\t in  so\t far  as  it
\nrelated\t to  payment  of  an  amount  collected\t as  tax  on
\ntransactions not liable to tax under the Act or in excess of
\nthe tax leviable under the. Act.\n<\/p>\n
     We may  now set out the facts giving rise to one of the
\nappeals. Both  the  learned  counsel  are  agreed  that\t the
\ndecision in that would also govern the other appeal.\n<\/p>\n
     Under section  5 of the Act, tax is payable by a dealer
\non his\ttax able turnover. “Taxable turnover`’ is defined in
\nsection 2(xxv)\tof the Act as the turnover on which a dealer
\nis liable  to  pay  tax\t as  determined\t after\tmaking\tsuch
\ndeductions from his total turnover and in such manner as may
\nbe prescribed  by the  rules under  the Act.  It  does\tnot,
\nhowever, include  the turnover\tof purchase  or sale  in the
\ncourse of  inter-State trade or commerce or in the course of
\nexport or  import   of goods.  The Kerala  General Sales Tax
\nRules have  been framed\t be the State Government in exercise
\nof the\tpowers conferred by section 57 of the Act. According
\nto clause  (i) of  rule 9  of the sail rules. in determining
\nthe taxable  turnover the following amount shall be deducted
\nfrom the  total turnover of the dealer: “the excise duty, if
\nany paid  by the  dealer to  the Government of Kerala or the
\nCentral Government  in respect of the goods sold by him”. It
\nmay be\tstated that  clause (i) was omitted subsequently but
\nwe are\tconcerned with\tthe period  when that  clause was an
\nintegral part of the rule.\n<\/p>\n
     The respondent  is an  incorporated company  engaged in
\nthe manufacture\t and sale of soaps, toilets and other goods.
\nThe respondent’s  accounts disclosed  that it  had collected
\nfrom the  persons to  whom  it\tsold  goods  a\tsum  of\t Rs.
\n30,591.71 as  sales tax\t in excess  of\tthe  tax  which\t the
\nrespondent was\tliable to pay under the Act. The respondent,
\nit would  appear, paid\tRs.  6,62,958  as  excise  duty\t and
\ndeducted the same from its total turnover for the purpose of
\ndetermining  the   taxable  turnover.\tWhen,  however,\t the
\nrespondent company sold the
\n154<\/span>
\ngoods it  collected sales  tax from  the purchasers  on\t the
\ninvoice price  without deducting  there from the excise duty
\npaid in\t respect of  the said  goods. This  resulted in\t the
\nrespondent company  realising Rs. 30,591.71 in excess of the
\nsales tax  payable in  respect of  the goods sold by it: The
\nsales tax officer held that the respondent was liable to pay
\nthe aforesaid  amount of  Rs. 30,591.71\t to  the  Government
\nunder section  22(3) of\t the Act.  The respondent then filed
\nwrit petition  in   the Kerala\tHigh Court  to challenge its
\nliability to pay the aforesaid amount on the ground that the
\nprovisions of  section 22  in  so  far\tas  they  imposed  a
\nliability on  a dealer\tto pay\tover to\t the Government\t any
\namount collected  by him  as sales  tax,  even\tthough\tthat
\namount was  not payable\t as tax,  was unconstitutional.\t The
\nlearned single\tJudge dismissed\t the petition  filed by\t the
\nrespondent. On\tappeal, however, the Division Bench held, as
\nalready mentioned  earlier, that  the impugned provision was
\nbeyond the legislative competence of the State Legislature.\n<\/p>\n
     Sub-section (3)  of section  22 of\t the  Act  reads  as
\nunder:\n<\/p>\n
     “(3)  If\tany  dealer   or  person   collects  tax  on
\n     transactions not  liable to  tax under  this Act  or in
\n     excess of\tthe tax\t leviable to  under this  Act,\tsuch
\n     dealer or person shall, unless it is established to the
\n     satisfaction of the assessing authority that the tax so
\n     collected has  been refunded  to  the  person  who\t had
\n     originally paid  tax, pay\tover to\t the Government,  in
\n     addition to  the tax  payable the\tamount so  collected
\n     within  such   time  and  in  such\t manner\t as  may  be
\n     prescribed.”\n<\/p><\/blockquote>\n
The learned  Judges of\tthe High  Court in holding the above
\nprovision. in  so far  as it related to payment of an amount
\ncollected as tax on transactions not liable to tax under the
\nAct or\tin excess  of the  tax leviable\t under the Act to he
\nbeyond the  legislative competence of the State Legislature,
\nreferred to  entry 54  of the  State  List  in\tthe  Seventh
\nSchedule to  the Constitution  upon which  reliance had been
\nplaced on  behalf of  the State.  It was held that the State
\nLegislature was incompetent to enact the impugned provisions
\ncontained in  sub-section (3) of section 22 of the Act under
\nthe above entry.\n<\/p>\n
     In appeal\tbefore us  Dr. Seiyed  Muhammad on behalf of
\nthe appellants\thas assailed  the judgment  of the  Division
\nBench of  the High Court. As against that, Mr. Pai on behalf
\nof the\trespondent has\tcanvassed for the correctness of the
\nsaid judgment.\tAfter hearing the learned counsel, we are of
\nthe opinion that there is no merit in these two appeals.\n<\/p>\n
     A State  Legislature is  competent to  make a law under
\nentry 54  of List II in Seventh Schedule to the Constitution
\nin respect  of “taxes on the sale or purchase of goods other
\nthan newspapers\t subject to  the provisions  of entry 92A of
\nList I”. Entry 92A of List I relates to taxes on the sale or
\npurchase of  goods other than newspapers, where such sale or
\npurchase takes\tplace in  the course of inter-State trade or
\ncommerce, and we are not concerned with this entry.\n<\/p>\n
155<\/span><\/p>\n
     Entry 54  enpowers\t State\tLegislatures  to  make\tlaw,
\nexcept i  certain cases\t with which we are not concerned, in
\nrespect of  taxes on  the sale or purchase of goods. As long
\nas the\tlaw relates  to taxes  on the  sale or\tpurchase  of
\ngoods, it  would be  within  the  competence  of  the  State
\nLegislature to\tenact such  a law.  It would not, however, b
\npermissible for\t the State  Legislature to enact a law under
\nentry 54  for recovery by the State of an amount which could
\nnot be\trecovered as sales tax or purchase tax in accordance
\nwith the  law on  the subject and which was wrongly realised
\nby a dealer as sales tax or purchase tax. Such a law plainly
\nwould not  be a\t law relating to tax on the sale or purchase
\nof goods  but would  be one  in respect of an amount wrongly
\nrealised by  a dealer as sales tax or purchase tax. It looks
\nperhaps odd  that a  dealer should  recover in the course of
\nbusiness transactions  certain sums of money as sales tax or
\npurchase tax  payable  to  the\tState  and  that  he  should
\nsubsequently decline  to pay  it to  the State on the ground
\nthat the  same amount  is  not\texigible  as  sales  tax  or
\npurchase tax.  Whatever might  be the  propriety of  such  a
\ncourse, the  question with which we are concerned is whether
\nthe State  Legislature is  competent to\t enact a  law  under
\nentry 54  for recovery\tby the\tState of  an  amount,  which
\nthough not  exigibie under  the State  law as  sales tax  or
\npurchase tax  was wrongly  realised as such by a dealer. The
\nanswer to  such a  question has\t to be\tin the negative. The
\nmatter indeed  is not  res integra  and is  concluded by two
\ndecisions of this Court.\n<\/p>\n
     A Constitution Bench of this Court examined in the case
\nof R.  Abdul Quader & Co. v. Sales Tax of<\/a>ficer, Hyderabad(1)
\nthe validity  of section  l l (2) of the Hyderabad Sales Tax
\nAct, 1950 which reads as under:\n<\/p>\n
     “(2) Notwithstanding anything to the contrary contained
\n     in any  order of  an officer  or tribunal\tor judgment,
\n     decree or\torder of  a  Court,  every  person  who\t has
\n     collected or  collects on\tor before 1st May, 1950, any
\n     amount by\tway of tax otherwise than in accordance with
\n     the provisions  of this  Act  shall  pay  over  to\t the
\n     Government within\tsuch time  and in such manner as may
\n     be prescribed  the amount\tso collected lay him, and in
\n     default of\t such  payment\tthe  said  amount  shall  be
\n     recovered from  him as  if\t it  were  arrears  of\tland
\n     revenue.”\n<\/p><\/blockquote>\n
The appellant  in that\tcase collected\tsales tax  from\t the
\npurchasers of betel leaves in connection with the sales made
\nby it.\tThe  appellant\thowever,  did  not  pay\t the  amount
\ncollected to  the government.  The Government  directed\t the
\nappellant to pay the amount to the Government. The appellant
\nthereupon  filed   a  writ   petition  in   the\t High  Court
\nquestioning  the   validity  of\t  section  11(2).  The\tmain
\ncontention of  the appellant  before the High Court was that
\nsection 11(2)  which authorised\t the Government to recover a
\ntax collected  without the  authority of  law was beyond the
\ncompetence of  the State Legislature because a tax collected
\nwithout the authority of law would not be a tax levied under
\nthe law\t and it\t would therefore not be open to the State to
\ncollect
\n(1) [1964] 6 S.C.R. 867.\n<\/p>\n
156<\/span><\/p>\n
under the  authority of a law enacted under entry 54 of List
\nII of  the Seventh  Schedule to\t the Constitution  any\tsuch
\namount. The High Court upheld the validity of section 11(2).
\nOn appeal  to this Court it was observed by the Constitution
\nBench as under:\n<\/p>\n
     “The  first   question   therefore\t  that\t falls\t for
\n     consideration is  whether it  was\topen  to  the  State
\n     legislature under\tits powers under entry 54 of List II
\n     to make  a provision to the effect that money collected
\n     by way of tax, even though it is not due as a tax under
\n     the Act,  shall be\t made over  to Government. Now it is
\n     clear that\t the sums so collected by way of tax arc not
\n     in fact  tax exigible  under the  Act. So\tit cannot be
\n     said  that\t  the\tState\tlegislature   was   directly
\n     legislating for the imposition of sales or purchase tax
\n     under  entry  54  of  List\t II  when  it  made  such  a
\n     provision, for  on\t the  face  of\tthe  provision.\t the
\n     amount,  though  collected\t by  way  of  tax,  was\t not
\n     exigible as tax under the law.”\n<\/p><\/blockquote>\n
An attempt  was made  on behalf of the State in that case to
\nsustain the  validity of  section 11(2) of the Hyderabad Act
\non the\tground that  the Legislature had enacted that law as
\npart of the incidental and ancillary power to make provision
\nfor the\t levy and  collection of sales or purchase tax. This
\ncontention was\trepelled and  it was observed that the ambit
\nof ancillary or incidental power did not go to the extent of
\npermitting the legislature to provide that though the amount
\ncollected-may be wrongly-by way of tax is not exigible under
\nthe law.  as made  under the relevant taxing entry, it shall
\nstill be paid over to Government, as if it were a tax.\n<\/p>\n
     The question  again arose\tin this Court before a Bench
\nconsisting of  six Judges  in the  case of  Ashoka Marketing
\nLtd.  v.   State  of  Bihar  &\tAnr.<\/a>(1).  In  that  case  in
\ndetermining the appellant’s turnover for assessment to sales
\ntax for\t the year  1956-57, the\t Superintendent of Sales Tax
\nincluded an  amount  representing  Railway  freight  in\t the
\nappellant’s sales  of cement.  The appellate  authority\t set
\naside the  orders directing  the inclusion  of\tthe  Railway
\nfreight in  the turnover.  After the introduction of section
\n20-A of\t the Bihar  Sales Tax Act the Assistant Commissioner
\nissued a  notice under\tsection 20-A(3) of the Act requiring
\nthe appellant to show cause why an amount representing sales
\ntax on the Railway freight which became refundable under the
\norders of  assessment  be  not\tforfeited.  The\t appellant’s
\ncontention that\t section 20-A  was  ultra  vires  the  State
\nLegislature was\t rejected by  the Assistant  Commissioner as
\nwell as\t by the\t High Court in a writ petition under article
\n226 of\tthe Constitution.  On appeal  filed by\tthe assessee
\nthis Court  held that  sub-sections  (3),  (4)\tand  (5)  of
\nsection 20-A  were ultra  vires the  State legislature. As a
\ncorollary thereto,  sub-sections (6) and (7) of that section
\nwere also held to be invalid. Subsection (3) of section 20-A
\nof the Bihar Sales Tax Act read as under:\n<\/p>\n
     “(3)(a)  Notwithstanding\tanything  to   the  contrary
\n     contained in  any law  or\tcontract  or  any  judgment,
\n     decree or order of
\n     (1) [1970] 1 S. C. R. 455.\n<\/p><\/blockquote>\n
157<\/span><\/p>\n
     any Tribunal,  Court or  authority, if  the  prescribed
\n     authority has  reason to believe that any dealer has or
\n     had,  at\tany  time,   whether  before  or  after\t the
\n     commencement of this Act, collected any such amount, in
\n     a case  in which  or to  an extent\t to which  the\tsaid
\n     dealer was\t or is\tnot liable  to pay  such amount,  it
\n     shall serve  on such  dealer a notice in the prescribed
\n     manner requiring  him on a date and at a time and place
\n     to be  specified therein neither to attend in person or
\n     through authorised\t representative to show cause why he
\n     should not\t deposit into  the Government  treasury\t the
\n     amount so collected by him.\n<\/p><\/blockquote>\n
\t  (b) On  the day  specified  in  the  notice  under
\n     clause (a)\t or  as\t soon  thereafter  as  may  be,\t the
\n     prescribed authority  may. after  giving the  dealer or
\n     his authorised representative a reason able opportunity
\n     of being  heard and  examining such  accounts and other
\n     evidence as  may be  produced by  or on  behalf of\t the
\n     dealer and\t making such  further enquiry as it may deem
\n     necessary,\t order\t that  the   dealer  shall   deposit
\n     forthwith into  the  Government  treasury,\t the  amount
\n     found to  have been  so collected by the dealer and not
\n     refunded prior  to the receipt of the, notice aforesaid
\n     to the person from whom it had been collected.”\n<\/p><\/blockquote>\n
In holding  sub-section (3) and other impugned provisions of
\nsection 20-A  to be beyond the legislative competence of the
\nState  Legislature,   this  Court  in  the  case  of  Ashoka
\nMarketing Ltd.\t(supra) relied\tupon the  decision  of\tthis
\nCourt in Abdul Qadar’s case (supra).\n<\/p>\n
     Dr. Muhammad  has, however,  tried to  distinguish\t the
\nabove two  cases on the ground that the present case relates
\nto an  amount realised\tin excess  of the tax leviable under
\nthe Act and not to an amount which was not payable at all as
\ntax under  the Act.  This fact,\t in our\t opinion, would\t not
\nprevent the  applicability of the principle laid down in the
\ncases of  Abdul Qadar and Ashoka Marketing Ltd. (supra). Any
\namount realised\t by a  dealer in  excess of the tax leviable
\nunder the  Act stands,\tfor the\t purpose of  determining the
\nlegislative competence\tunder entry  54, on the same footing
\nas an  amount not  due as  tax under the Act. Dr. Muhammad’s
\nargument involves  inventing a\tcategory of  a “deemed\ttax”
\nwhich is  not there  in the  Act. The  provisions of the Act
\ncontain a  definition of  “tax”. This necessarily means that
\nevery thing  outside it\t collected by the dealer would be an
\nexaction not  authorised by  the Act.  “Tax”,  according  to
\nsection 2(xxiv)\t of the Act, means the tax payable under the
\nAct. The  amount which\twas realised  by the  respondent  in
\nexcess of what was due as tax cannot
\n158<\/span>
\nbe held\t to be “tax”, because such excess amount was not tax
\npayable\t under the Act. If the State Legislature cannot make
\na law  under entry  54 of List II of the Seventh Schedule to
\nthe Constitution  directing the\t payment to the State of any
\namount collected  as tax  on transactions  not liable to tax
\nunder the  Act, it  would likewise  be incompetent to make a
\nlaw directing  payment to the State of an amount realised be
\na dealer  in excess  of the  tax payable  under the Act. The
\namount realised\t in excess of the tax leviable under the Act
\nwould not stand for this purpose on a footing different from
\nthat of\t the amount  realised as  tax, even  though the same
\ncould not be recovered as tax under the Act.\n<\/p>\n
     We would,\ttherefore,  dismiss  the  two  appeals\twith
\ncosts. One hearing fee.\n<\/p>\n
V.P.S.\t\t\t\t\t  Appeals dismissed.\n159<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sales Tax Officer, Special … vs Tata Oil Mills Co. Ltd on 29 July, 1975 Equivalent citations: 1975 AIR 1991, 1976 SCR (1) 152 Author: H R Khanna Bench: Khanna, Hans Raj PETITIONER: SALES TAX OFFICER, SPECIAL CIRCLE, ERNAKULAM & ANR. Vs. RESPONDENT: TATA OIL MILLS CO. LTD. DATE OF JUDGMENT29\/07\/1975 […]<\/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-85383","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSales Tax Officer, Special ... vs Tata Oil Mills Co. 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