Andhra HC (Pre-Telangana)
Pardha Saradhi Hotel Enterprises Ltd., ... vs Commercial Tax Officer, Eluru And ... on 29 June, 1999
Equivalent citations: 1999(4)ALD132, 1999(4)ALT543
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. In this writ petition, the petitioner apart from challenging the provisional assessment order dated 22-5-1999 passed by the 1st respondent for the month of March, 1999, seeks a declaration that clause (c) of Section 6-A of A.P. General Sales Tax Act, is violative of Article 286 of the Constitution and therefore un-Constitutional. The petitioner who is a dealer in chillies claims to have acted as a Commissioner Agent on behalf of nonresident principals in Kerala and Tamil Nadu who exported the goods to foreign countries. Chillies are liable to tax under Section 5(2) read with Entry 16 of the second schedule to APGST Act at the point of first purchase in the State. The petitioner initially disclosed the net turnover of Rs.2,70,46,276/- for the month of March, 1999. However, he filed a revision return claiming exemption on the turnover of Rs.2,72,09,812 which according to the petitioner represents the purchases made in the course of export within the meaning of Section 5(3) of the CST Act. The petitioner furnished certain documents in support of his claim for exemption viz., orders of foreign buyers placed on nonresident principles, purchase orders of Principals, Form-H declarations and statements of account (patties) furnished to the principals. Certain letters of appointment as Commission Agent were also furnished later. The assessing authorities was not satisfied with the correctness of the petitioner's claim. He pointed out certain deficiencies in the documents furnished by the petitioner and concluded that the claim of the petitioner as a buying agent on behalf of non-resident principals (exporters) was not conclusively proved. The assessing officer observed that the petitioner was chargeable to tax not only under the main charging section, but also under Seclion 6-A of the Act. He also found that H declaration forms were wanting in relevant particulars. The assessing Officer also commented that there was no provision for filing revised return under the Act and the assessce was bound to pay the tax as per the returns originally filed. The petitioner instead of filing an appeal against this order, as provided for by the Act, has filed the writ petition.
2. It is the contention of the learned Counsel for the petitioner that the legitimate claim of the assessee for excluding the purchases made in the course of export, supported by documentary evidence, has been negatived on utterly untenable grounds and Section 6-A has been wrongly applied. It is contended that reliance placed by the assessing authority on the decision of the Supreme Court in State of Karnataka v. B.M. Ashraf, 107 STC 571, is not correct. It is further submitted that ifthere were any defects in H-Form declarations, opportunity should have been given to the petitioner to rectify instead of rejecting the documents out-right. The petitioner has filed a plethora of documents along with the writ petition. The question whether the purchases said to have been effected by the petitioner on behalf of the exporters are purchases in the course of export within the meaning of Section 5(3) of CST Act read with Section 7 of the APGST Act, is basically a question of fact.
Atleast, it is a mixed question of law and fact. The petitioner cannot normally bypass the remedy of appeal and invoke the extraordinary jurisdiction of this Court under Article 226 at this stage. May be, the petitioner has an excellent case. But, that is no ground to entertain straight-away a writ petition questioning the provisional assessment order.
3. The petitioner has no doubt challenged the Constitutional validity of Clause (c) of Section 6-A of APGST Act on the ground that it violates Article 286 of the Constitution. To substantiate his argument on this aspect, the learned Counsel for the petitioner has submitted that if the goods purchased within the State are despatched to a place outside the State, the tax under Section 6-A is attracted irrespective of the fact that such despatch is in the course of export within the meaning of Section 5(1) and Section 5(3) of Central Sales Tax Act. If, on the other hand, the despatch of goods to a place outside the State takes place pursuant to inter-State sale, the tax under Section 6-A is not exigible by reason of the exception provided by Clause (c) of Section 6-A. According to the learned Counsel, the transactions facilitating the export of goods out of the territory of India are thus brought within the tax net under Section 6-A and this, according to the learned Counsel, offends Article 286.
4. We fail to see how clause (c) of Section 6-A becomes unconstitutional for the reason that out-of-State despatches in the course of export are not expected under clause (c). Firstly, the omission to make an exception in regard to despatches to a place outside the State in the course of export does not make the exception in respect of inter-State sales invalid. Secondly, the purpose of providing exception as far as inter-State sale is concerned, is obviously for the reason that the dealer will be liable to pay Central Sales Tax and in that sense, the State realises the revenue. The object of Section 6-A which provides for contingent purchase tax liability, is to ensure to the extent possible that the goods which are generally liable to tax do not elude the tax net altogether on account of certain, supervening circumstances. When it is possible to realise CST the Raison d 'etre for levying the tax under Section 6-A will disappear. Unlike in the case of export sales, the State is empowered to levy and collect tax on inter-State sales. Thus, the exception in favour of inter-State sales in centra-distinction to export sales rests on a real and intelligible differentia. In any case, the complaint as far as violation of Article 286 is totally unfounded. The sales or purchases in the course of export as such, are not being touched nor intended to be covered by Section 6-A. It admits of no doubt that Section 6-A is subject to the Constitutional mandate ordained by Article 286 of the Constitution read with Section 5 of CST Act. Section 38 of the APGST Act is another provision which emphasises that sales or purchases in the course of export cannot be subjected to tax under the Act. There is nothing in clause (c) of Section 6-A which purports to tax the sales or purchases in the course of export. Section 6-A can only operate in respect of a taxable event anterior to the sale or purchase in the course of export. That being the case, the infringement of Article 286 does not at all arise.
5. If any sale or purchase in the course of export of goods within the territory of India becomes liable to be taxed under Section 6-A, the entire Section 6-A will fall to ground, not merely Clause (c) thereof. But, as observed already, there is nothing in Section 6 or Clause (c) thereof which sanctions the imposition of tax on the sales or purchases in the course of export within the meaning of Section 5(1) and 5(3) of the CST Act. In fact, the Legislature wanted to dispel the possible misconception by employing clear and explicit language in Section 38. Section 38 lays down :
"38. Act not to apply to sales or purchases outside the State, in the course of import or export, etc., Nothing contained in this Act shall be deemed to impose or authorise the imposition of a tax on the sale or purchase of any goods, where such sale or purchase takes place:
(i) outside the State; or
(ii) in the course of the import of the goods into, or export of the goods, out of the territory oflndia; or
(iii) in the course of inter-State trade or Commerce.
Explanation :--The provisions of Chapter II of the Central Sales Tax Act, 1956 (Central Act 74 of 1956) shall apply for the purpose of determining when a sale or purchase takes place in the course of inter-State trade or commerce or outside a State or in the course of import or export."
Thus, what is obvious and what necessarily flows from Article 286 is reiterated in Section 38 which opens up with the phraseology akin to a non obstante clause. Section 6-A or for that matter any other charging Section in the Act has to necessarily yield to the mandate of Section 38 which in turn owes its origin to clauses (a) and (b) of Article 286(1). Viewed from any angle, we cannot visualise any Constitutional infirmity in Clause (c) of Section 6-A.
6. The learned Counsel for the petitioner then submits that in the face of recent decision of the Supreme Court in Ashraf's case (supra), the departmental authorities including the appellate authority will be practically left with no option but to disallow the petitioner's claim. It is pointed out that the law laid down by the Supreme Court in B.M. Ashrafs case (supra), while interpreting Section 6 of the Karnataka Sales Tax Act, conflicts with the exposition of law in Stale of Tamil Nadu v. Kandaswami, 36 STC 191, in which the Constitutional validity of a corresponding provision in Madras Act, was upheld by a Bench of three Judges. The learned Counsel has then pointed out that the assessing authority heavily relied on the decision of the Supreme Court in Ashrafs case (supra). The learned Counsel therefore submits that this Court should resolve the conflict between the two decisions and lay down the law instead of leaving it to the appellate authorities under the Act.
7. We find it difficult to accept the contentions advanced by the learned Counsel. The conflict sought to be projected by the learned Counsel does not, in our view, really exist. Our attention has been drawn to the following observations in Kandaswami 's case (supra); "The words -"the sale or purchase of which is liable to tax under the Act" qualify the terms 'goods', and exclude by necessary implication goods, the sale or purchase of which is totally exempted from tax at all points under Section 8 or Section 17(1) of the Act. The goods so exempted - not being 'taxable goods' cannot be brought to charge under Section 7-A". Section 7-A of the Madras Act corresponds to Section 6-A of the A.P. Act. Section 8 and Section 17(1) of the Madras General Sales Tax Act provided for exemption in respect of certain class of goods. One need not labour hard to say that the observations in Kandaswami's case (supra) apply with greater force to sales or purchases in the course of export.
8. Coming to Ashrafs case (supra), there is nothing in that decision which permits the State to tax the purchase or sales made by the dealer in the course of export of the goods. The proposition laid down in paragraph 9 in Ashraf's case (supra) relied upon by the learned Counsel does not in any way suggest that the purchases made within the State in the course of export as such, would still attract the purchase tax under Section 6 of the State Act. This is what Their Lordships observed in paragraph 9 :
"It is pertinent to note that whereas intra-State sale or inter-State sale would be a reason for purchase tax not being levied but sate in the course of export would not exclude the applicability of the levy of purchase tax under Section 6 of the Act."
9. The contention of the learned Counsel is founded on an erroneous assumption that the Supreme Court approved the levy of purchase tax even if the purchase took place in the course of export. In Ashrafs case (supra), it was nobody's case that the purchase which was taxed under Section 6 of the Karnataka Sales Tax Act corresponding to Section 6-A of APGST Act, was the purchase in the course of export. The sale by the assessee after the local purchase effected by him and the subsequent sale by the purchaser to the foreign buyer, were the sales in the course of export. The Supreme Court therefore observed that no tax was leviable on such sales under Section 5 of the Act inasmuch as the sales were in the course of export. Nevertheless, the Supreme Court laid down that the local purchase (preceding the export sale), was liable to tax under Section 6 of the Karnataka Act. The law laid down by the Supreme Court in Ashrafs case (supra) does not in any way expose Section 6-A of APGST Act to the risk of violation of Article 286. To characterise the legal position declared by the Supreme Court in Ashrafs case as ''per incuriam' is the result of misunderstanding of the true ration of the decision and the provisions of law construed therein.
10. What emerges from the above discussion is that the purchase of taxable goods will attract the liability to tax either under the general charging section -Section 5 or under Section 6-A of APGST Act. The mere fact that there was a subsequent sale occasioning the export and in that process, the goods moved within or outside the State, does not detract from the liability to pay the tax under Section 5 or Section 6-A on the sale or purchase anterior to the export sale. However, no provision in the APGST Act can touch the actual sales or purchases in the course of export and no tax can be levied thereon by reason of Constitutional immunity embodied in Article 286 which is reinforced by Section 38 of APGST Act itself. If this distinction is borne in mind, the ratio and observations in Ashrafs case (supra) can be understood in proper perspective. It admits of no doubt that if the petitioner is able to substantiate that his purchase was in the course of export, he will be out of Section 6-A and nothing said in Ashrafs case (supra) will come in the way of immunity from tax. If the assessing authority mis-applied the law laid down in Ashrafs case (supra) and wrongly invoked it to tax the purchases in the course of export, it would be very well open to the petitioner to canvass the correctness of the assessment order before the appellate authority.
11. Before parting with the case, we should express our inability to understand the reason and logic behind taking shelter under Section 6-A leaving aside the general charging section - Section 5. Chillies are taxable at the point of first purchase as per Section 5(2) read with Schedule II. In such a case, the purchase by the petitioner unless it is established to be a purchase in the course of export, would attract tax under Section 5 itself. Unless it is not possible to levy tax under the general charging provision, resort to Section 6-A is out of place. If the goods are generally liable to tax under the Act, but the liability cannot be fastened on account of intervening or supervening circumstances, recourse is taken to the special charging provision under Section 6-A. By applying Section 6-A, the purchases if they are in the course of export, cannot in any case, be taxed. The assessing authority should have therefore, subjected the petitioner's turnover under Section 5 itself, having reached the conclusion that the purchases were not in the course of export. In fact, the assessing authority referred to Section 5 also in the earlier part of his order. But, the ultimate application of Section 6-A has given rise to unnecessary controversy. The mere fact that a wrong charging provision has been applied, does not however make material difference so long as the power to tax is traceable to one or the other charging Sections and the quantum of tax is the same. Therefore, in the instant case, the assessment will not fall to ground merely because the turnover was brought to tax under Section 6-A rather than under Section 5. But, we would like to reiterate that neilher Section 5 nor Section 6-A can be applied to bring the purchases made by the petitioner within the net of taxation if the purchases were in the course of export. Thus, ultimately, the crucial question which the appellate authority has to address itself is whether the purchases made by the petitioner from market yards were themselves in the course of export within the meaning of Section 5(3) of CST Act as claimed by the assessee. On this aspect of the case, we shall not be understood to have expressed any view one way or the other. It is for the appellate authority to examine the relevant documents and record its findings.
12. In the light of the foregoing discussion, we dispose of the writ petition with a direction that if the petitioner files an appeal within a period of 15 days from today, the same shall be entertained and disposed of by the appellate authority on merits without raising any objection as to limitation. It is also open to the petitioner to seek stay pending the appeal. To enable him to do so, we direct that no steps should be taken for recovery of the disputed lax for a period of six weeks. It is needless to observe that the appellate authority is bound to keep in view the clarification of legal position as given in this judgment. The prayer for declaring clause (c) of Section 6-A of APGST Act as unconstitutional is rejected. We make no order as to costs. The Office shall return the original impugned order.