Karnataka High Court
Mysore Coffee Curing Works Limited vs Deputy Commissioner Of Commercial ... on 11 April, 2003
Equivalent citations: [2003]132STC327(KAR), 2003 AIR - KANT. H. C. R. 1660, (2003) 3 KCCR 1843 (2003) 1 KANTLJ(TRIB) 90, (2003) 1 KANTLJ(TRIB) 90
Author: R. Gururajan
Bench: R. Gururajan
ORDER R. Gururajan, J.
1. Mysore Coffee Curing Works Ltd., is seeking to strike down Section 6-B of the Karnataka Sales Tax Act, 1957 as unconstitutional. Petitioner also wants a writ of certiorari to quash that portion of the assessment dated June 22, 1999 at annexure F for the year ended March 31, 1998 levying turnover tax at 3 per cent up to July 2, 1997 and also to quash an endorsement dated December 9, 1999, annexure H, issued by respondent No. 1 refusing to rectify such order. Petitioner is also seeking other reliefs.
2. Facts in brief are as under : Petitioner is a dealer in terms of the Karnataka Sales Tax Act, 1957 ("the Act" for short). Petitioner exports substantial quantities of coffee seeds after curing them. Section 6-B of the Act provides for liability to pay tax known as "turnover tax" on his total turnover at the rate/s that may be specified or notified from time to time. With effect from April 1, 1997 up to June 30, 1997 a slab system for payment of turnover tax was notified as under :
(i) 1 per cent for the first Rs. 5 crores turnover ;
(ii) 2 per cent for the next Rs. 5 crores turnover ;
(iii) 3 per cent for the turnover in excess of Rs. 10 crores.
According to the petitioner, definition of "total turnover" is inclusive of sales commonly known as and referred to as central sales, export sales and import sales. In other words, turnover tax would be leviable not only on local sales but also on inter-State sales, export and import sales. A proviso to Section 6-B of the Act provides that no turnover tax shall be payable, inter alia, on inter-State sales and export sales. But the quantum of such inter-State sales and export sales are included in the definition of "total turnover", and that, therefore, would constitute "total turnover tax" for the limited purpose of determination of rate of turnover tax. Inclusion of inter-State and export sales, even for the purpose of determination of the rate of turnover tax, is violative of a constitutional provision. Petitioner has referred to the details of turnover in so far as petitioner is concerned.
3. Petitioner made a letter in terms of annexure A, and, in that, he has stated that the inclusion of exempted turnover towards the difference is illegal based on article 286 of the Constitution and in the light of A.V. Fernandez v. State of Kerala . Endorsement in terms of annexure B dated March 17, 1998 was issued to the petitioner. Claim of the petitioner for refund is rejected. Petitioner filed a writ petition in this Court in Writ Petition No. 25423 of 1998. In the said writ petition petitioner challenges the said endorsement dated March 17, 1998 and also sought for a direction for refund of excess turnover tax. Writ petition was disposed of with permission to file an appeal within four weeks from December 1, 1998. The said order was unsuccessfully challenged by the petitioner in Writ Appeal No. 2409 of 1999. Thereafter, assessment orders have been passed by the assessing officer in terms of annexure F.
4. Petitioner thereafter wrote a letter in terms of annexure G seeking rectification of the order dated June 22, 1999. An endorsement has been issued to the petitioner at annexure H rejecting rectification of the order dated June 22, 1999. Petitioner is therefore before me.
5. Respondents have entered appearance. They have filed a statement of objections. They justify their action. They further say that Section 6-B of the Act is constitutionally valid and the endorsement is in accordance with law in the light of B.P. Automobiles v. State of Karnataka . He has also justified their action on merits with regard to the proviso. They have given justification with reference to various contentions raised by the petitioner.
6. Matter is heard for a long time. Dr. Krishna, learned counsel, appears for the petitioner. He took me through various averments made in this writ petition and also various provisions of law of the Sales Tax Act. He has also explained the case laws to contend that a case is made out. His argument is that a combined reading of article 286 of the Constitution and the ratio of the decision of the Supreme Court in A.V. Fernandez v. State of Kerala , would show that the determination of 3 per cent in terms of the slab system is constitutionally impermissible. Learned counsel explains that this Court while upholding Section 6-B of the Act has not specifically adverted to the present article 286 read with a decision of the Supreme Court in A.V. Fernandez v. State of Kerala for the purpose of finding out constitutional validity of Section 6-B. Learned counsel says that notwithstanding upholding of Section 6-B by this Court, this Court can still consider this plea. In so far as res judicata is concerned, learned counsel explains that the principle is not applicable to the facts of this case.
7. Per contra, Sri Anand, learned Government Advocate, invites my attention to the various provisions to contend that Section 6-B is constitutionally valid, and, as a matter of fact, this Court has already upheld its validity. His further submission is that the earlier judgment in the matter of constitutional validity comes in the way of reconsideration of the constitutional question for the second time by me in this petition. He has also invited my attention to the earlier orders to contend that the petitioner cannot be granted any relief by this Court.
8. In the light of the submissions of the learned counsel on either side, I have carefully perused the averments, documents, proviso to Karnataka Sales Tax Act and case laws submitted by either side.
9. Relevant portion of Section 6-B of the Karnataka Sales Tax Act reads as under :
"6-B. Levy of turnover tax.--(1) Every registered dealer and every dealer who is liable to get himself registered under Sub-sections (1) and (2) of Section 10 whose total turnover in a year is not less than the turnovers specified in the said sub-sections whether or not the whole or any portion of such turnover is liable to tax under any other provisions of this Act, shall be liable to pay tax,--
(i) at the rate of one and half per cent of the total turnover, if the total turnover is not more than one thousand lakh rupees in a year ; or
(ii) at the rate of three per cent of the total turnover, if the total turnover is more than one thousand lakh rupees in a year:
Provided that the rate of tax payable for any year shall be at one and half per cent on the turnovers up to one thousand lakh rupees and at three per cent on the turnovers exceeding one thousand lakh rupees, if, the total turnover in the year immediately preceding that year was not more than one thousand lakh rupees :
Provided further that no tax under this sub-section shall be payable on that part of such turnover which relates to,--
(i) sale or purchase of goods specified in the Fifth Schedule ;
(ii) sale or purchase of goods specified in the Fourth Schedule;
(iii) sale or purchase of goods in the course of inter-State trade or commerce ;
(iv) sale or purchase of goods in the course of export out of the territory of India or sale or purchase in the course of import into the territory of India;
............."
10. Amended Section 6-B providing for levy of 1 1/2 per cent of the total turnover tax on every dealer whose annual turnover exceeds Rs. 1 crore, was considered by a division Bench of this Court in Shantilal & Brothers v. State of Karnataka [1985] 59 STC 178. This Court ruled that classification of dealers under Section 6-B of the Act, as amended in terms of the Amendment Act, 1982 proceeded on a rational basis, and, there is no violation of Articles 14 and 19(1)(g) of the Constitution. This Court ruled that inclusion of inter-State export and import turnover, on which it is not competent for the State Legislature to levy tax, is only meant for the purpose of identifying the dealers, and that the actual levy is intended only on intra-State turnover by reason of the proviso thereunder, and, therefore, it is not beyond the competence of the State Legislature. This Court no doubt notices A.V. Fernandez v. State of Kerala . After noticing the Fernandez case , this Court ruled that Section 6-B did not intend to tax the turnover relating to non-liability under Article 286 of the Constitution. This Court also noticed a judgment of the Supreme Court in Hoechst Pharmaceuticals Limited v. State of Bihar [1984] 55 STC 1, in which Fernandez case is explained. It is at this stage necessary to see the judgment of the Supreme Court in Hoechst Pharmaceuticals Limited v. State of Bihar [1984] 55 STC 1. The Supreme Court in para 93 in this judgment (page 38 of STC) notices the Fernandez case . The Supreme Court ruled that Fernandez case [1957] 8 STC 561 is a clear authority for the proposition that the State Legislature notwithstanding Article 286 of the Constitution while making a law under entry 54 of List II of the Seventh Schedule can, for the purposes of registration of a dealer and submission of returns of sales tax, include the transactions covered by Article 286 of the Constitution. The Supreme Court in the very same judgment ruled as under :
"That being so, the constitutional validity of Sub-section (1) of Section 5 of the Act which provides for the classification of dealers whose gross turnover during a year exceeds Rs. 5 lakhs for the purpose of levy of surcharge, in addition to the tax payable by him, is not assailable. So long as sales in the course of inter-State trade and commerce or sales outside the State and sales in the course of import into, or export out of the territory of India are not taxed, there is nothing to prevent the State Legislature while making a law for the levy of a surcharge under entry 54 of List II of the Seventh Schedule to take into account the total turnover of the dealer within the State and provide, as has been done by Sub-section (1) of Section 5 of the Act, that if the gross turnover of such dealer exceeds Rs. 5 lakhs in a year, he shall, in addition to the tax, also pay a surcharge at such rate not exceeding 10 per centum of the tax as may be provided. The liability to pay a surcharge is not on the gross turnover including the transactions covered by Article 286 but is only on inside sales and the surcharge is sought to be levied on dealers who have a position of economic superiority. The definition of "gross turnover" in Section 2(j) of the Act is adopted not for the purpose of bringing to surcharge inter-State sales or outside sales or sales in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying object is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax."
The Supreme Court noticed economic superiority principle for the purpose of levy of turnover tax.
11. It is also necessary to notice at this stage that this very provision of Section 6-B was challenged in the case of Padmashri Plastics v. Commercial Tax Officer. A division Bench of this Court in the said case in W.P. Nos. 23964-65 connected with W.P. No. 4589 of 1991 and W.P. No. 4586 of 1991 disposed of on September 24, 1999 noticed P.B. Automobiles v. State of Karnataka [1984] 55 STC 93 and thereafter dismissed the petition. This Court upheld the constitutional validity of Section 6-B. S.L.P. preferred has been rejected. In these circumstances, attack of levy on the ground of Articles 14 and 19, etc., are to be rejected on account of a binding division Bench decision of this Court confirmed by the Supreme Court. Sri Anand, learned Government Advocate argued that Padmashri Plastics v. Commercial Tax Officer (W.P. Nos. 23964-65 connected with W.P. Nos. 4589 and 4586 of 1991 decided on September 24, 1999--Karnataka High Court) has upheld Section 6-B of the Act and therefore the same cannot be reagitated. He also argues that the petitioner himself filed an earlier petition and the same was disposed of with a direction to file an appeal. According to the learned Government Advocate, Padmashri Plastics v. Commercial Tax Officer (W.P. Nos. 23964-65 connected with W.P. Nos. 4589 and 4586 of 1991 decided on September 24, 1999--Karnataka High Court) is an estoppel to the petitioner. He strongly relies on the principle of constructive res judicata in this case. In fact, he strongly relies on a judgment of this Court in Manipur Vasant Kini v. Union of India . Sri Krishna, learned counsel for the petitioner, would say that there is no finding with regard to article 286 read with Fernandez case and Padmashri Plastics v. Commercial Tax Officer (W.P. Nos. 23964-65 connected with W.P. Nos. 4589 and 4586 of 1991 decided on September 24, 1999--Karnataka High Court). He states that notwithstanding Padmashri Plastics v. Commercial Tax Officer (W.P. Nos. 23964-65 connected with W.P. Nos. 4589 and 4586 of 1991 decided on September 24, 1999) this Court still can go into the constitutional question. In so far as Manipur Vasant Kini v. Union of India is concerned, and so far as constructive res judicata is concerned, learned counsel say that the same has been based on a judgment of this Court in R. Umesh Wagle v. Union of India (W.P. No. 11622 of 1994 disposed of on January 16, 1996). Learned counsel says that in those cases public interest litigation was filed and other parties were not aware of the proceedings.
12. It is no doubt true that in the case of A.V. Fernandez v. State of Kerala , the Supreme Court has ruled in unmistakable terms in paragraphs 40, 41, 42 and 43 as under (page Nos. 574 and 575 of STC) :
"(40) The appellant, however, forgets that the three stages in the imposition of a tax which are laid down here predicate, in the first instance, a declaration of liability as the starting point. If there is a liability to tax, imposed under the terms of the taxing statute, then follow the provisions in regard to the assessment of such liability. If there is no liability to tax there cannot be any assessment either. Sales or purchases in respect of which there is no liability to tax imposed by the statute cannot at all be included in the calculation of turnover for the purpose of assessment and the exact sum which the dealer is liable to pay must be ascertained without any reference whatever to the same.
(41) There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.
(42) If this distinction is borne in mind, it is clear that Section 26 of the Act enacts a provision with regard to non-liability of these transactions to tax and these transactions were therefore taken out of the purview of the Act.
(43) We are therefore of opinion that the non obstante provision contained in Section 26 of the Act has the effect of taking these transactions out of the purview of the Act with the result that the dealer is not required nor is he entitled to include them in the calculations of his turnover liable to tax thereunder."
It is equally true that the Supreme Court has ruled that the very fact of their non-liability to tax is sufficient to exclude them from calculation of gross turnover as well as net turnover, on which sales tax can be levied or imposed. In the given case, as pointed out by Dr. Krishna, learned counsel for the petitioner, that though for the purpose of levy on inter-State sales excluded, but for the purpose of calculation, total turnover including the excluded sale item is considered. Therefore, prima facie, this argument appears to be attractive. Learned counsel for the respondents is unable to show from the material on record that such inclusive calculation is legally permissible. At any rate, I do not want to give any finding on this interested and attractive argument in the light of the earlier writ petition operating against the petitioner.
13. In the case on hand, this Court has already upheld Section 6-B of the Act, though on other grounds. This very petitioner has filed a writ petition in this Court in Writ Petition No. 25423 of 1998. Though the petitioner did not specifically challenge the constitutional validity, still some of the grounds including the grounds based on Fernandez case , and article 286 of the Constitution, were raised by the petitioner in the earlier petition. In the earlier petition, petitioner has stated in Ground (b) reading as under :
"The endorsement dated March 17, 1998 at annexure B issued by the respondent is wholly illegal, arbitrary and without jurisdiction as in any event, the exempt turnover, viz., such turnover as is relatable to inter-State sales and export sales could not have been taken into account even for the limited purpose of determining the rate at which the turnover tax could be levied. The endorsement of the respondent is wholly opposed and contrary to the judgment of the honourable Supreme Court of India in A.V. Fernandez v. State of Kerala and the provisions of article 286 of the Constitution of India. The endorsement of the respondent is, therefore, liable to be quashed on this ground alone."
Petitioner could have at that time challenged the constitutional validity of Section 6-B. He has failed to do so. This Court directed the petitioner to file an appeal, which he has filed in terms of the order. Writ Appeal also by the petitioner. In the light of an order of division Bench of this Court upholding the constitutional validity, this Court cannot once again consider the constitutional question in a separate second writ petition, that too at the instance of this petitioner.
14. Principle of res judicata comes to the rescue of the respondent. A division Bench of this Court in the case of Manipur Vasant Kini v. Union of India has considered the principles of res judicata and ruled in para 12 reading as under :
"The underlying idea in the principle of res judicata and constructive res judicata is that the parties are not made to defend the same cause of action twice over, which had been concluded on merits between the parties by a court of competent jurisdiction. Repeated suits or writ petitions on the same cause of action filed in a court of law on the same pleas with little variation of arguments cannot be entertained as it would lead to wasting of the time of the court as well as unnecessary expense and time of the litigant public. It would be a sheer abuse of the process of court to raise at each successive stage different pleas to protract the proceedings or to drive the party to multiplicity of the proceedings. Parties have to raise all available pleas in the proceedings when the action is initiated and the action thereto would constitute constructive res judicata to prevent raising of the same at a later point of time. The plea which were not raised in the earlier proceedings would be deemed to have been waived."
These findings would come in the way of the petitioner challenging the constitutional validity of Section 6-B in this proceeding. The division Bench has ruled that it would be a sheer abuse of process of court to raise at each succession stage different pleas to protract the proceedings or to drive the party to multiplicity of the proceedings. Parties have to raise all available pleas in the proceedings when the action is initiated. The plea which were not raised in the earlier proceedings would be deemed to have been waived. In the case on hand petitioner filed a writ petition earlier in which it has raised a ground of constitutional validity but a relief to that effect is not sought for and that is also not pressed at that stage. Therefore, the division Bench decision of this Court in Manipur Vasant Kini v. Union of India squarely applies to the facts of this case. Earlier writ petition and a subsequent order of the division Bench confirmed by the Supreme Court is a point that goes against the petitioner. Therefore, notwithstanding the persuasive argument of Dr. Krishna with regard to article 286 of the Constitution read with Fernandez case , and non-applicability of constructive res judicata, I am not inclined to accept the same on the facts of this case. In the circumstances, it is not possible to accept the arguments of the petitioner.
15. Petitioner is already before the Tribunal aggrieved by the assessment orders. Tribunal is to consider the case of the petitioner on merits without in any way being influenced by this order. This order is confined only to the constitutional validity raised by the petitioner.
16. Writ petitions are dismissed. Parties are to bear their own costs.