Supreme Court - Daily Orders
Gupta Enterprises vs Commercial Tax Officer . on 21 April, 2015
Author: Chief Justice
Bench: Chief Justice, S.A. Bobde, Arun Mishra
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2116 OF 2007
GUPTA ENTERPRISES ...APPELLANT(S)
VERSUS
COMMERCIAL TAX OFFICER & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.2117 OF 2007
AND WITH
CIVIL APPEAL NO.2118 OF 2007
O R D E R
1. Since the facts and questions involved in all these appeals are similar, for the sake of convenience, we will consider the facts of Civil Appeal No.2116 of 2007, for the purpose of convenient disposal of these appeals.
Civil Appeal No.2116 of 2007:
2. This appeal is directed against the judgment and Signature Not Verified order, passed by the Division Bench of the High Court of Digitally signed by Ramana Venkata Ganti Date: 2015.04.27 14:51:00 IST Reason: Kerala at Ernakulam in Writ Appeal No.2253 of 2006, dated 07.12.2006. By the impugned judgment and order, the High 2 Court has confirmed the order passed by the learned Single Judge in Writ Petition (C) No.6210 of 2005, whereby the said writ petition was dismissed against the appellant.
3. The facts, in brief, are: the appellant-herein is a dealer registered under, both, the Kerala General Sales Tax Act, 1963 (for short, “the Act, 1963”) and the Central Sales Tax Act, 1956 (for short “the Act, 1956”) and is in the business of exporting sandalwood. It would be beneficial to take note of the manner in which the appellant has conducted his business in the present case. According to the appellant, he received a purchase order from a foreign buyer for the supply of sandalwood, and pursuant to the said purchase order the appellant had participated in an auction of sandalwood conducted by the forest authorities in the State of Kerala. It is not in dispute that the appellant was a successful bidder in the aforesaid auction.
4. Pursuant to the aforesaid auction, there was a demand for payment of tax by the forest authorities as required under Section 5-A of the Act, 1963 read with 3 Schedule V of the Act, 1963. Aggrieved by the said demand, the appellant had filed Writ Petition No.6210 of 2005 before the High Court, inter alia, praying that the Divisional Forest Officer (Respondent No.3 herein) and Forest Range Officer, Marayoor Range (Respondent No.4 herein) to release the goods purchased by the appellant in the aforementioned auction.
5. The learned Single Judge, vide order dated 26.04.2000, rejected the Writ Petition and directed the appellant to pay the Purchase Tax as required under Section 5-A read with Schedule V of the Act, 1963. Aggrieved by the same, the appellant approached the Division Bench in Writ Appeal Nos.2253, 2246 and 2249 of 2006.
6. The Division Bench of the High Court confirmed the order passed by the learned Single Judge, vide order dated 07.12.2006. It would be pertinent to note that in the penultimate paragraph of the impugned judgment and order, the High Court has observed that the “Same Goods Theory” as envisaged under Section 5(3) of the Act, 1956 is the subject-matter of the Constitution Bench of this 4 Court in the case of State of Karnataka Vs. Azad Coach Builders Pvt. Ltd., (2006) 145 STC 176.
7. The Constitution Bench of this Court, in State of Karnataka vs. Azad Coach Builders Pvt. Ltd., reported in (2010) 9 SCC 524, has now explained the concept of “Same Goods Theory” in paragraphs 27 and 28 of the said judgment, for the purpose of Section 5(3) of the Act, 1956.
8. In view of the above, at the first instance, we are of the considered opinion that the issue of the “Same Goods Theory” requires to be considered by the Division Bench of the High Court in the light of the Constitution Bench decision of this Court in Azad Coach Builders case (supra).
9. Therefore, we set aside the impugned judgment and order and remit the matter to the Division Bench of the High Court to have a re-look into the appeal filed by the appellant, in the light of the Constitution Bench judgment of this Court in Azad Coach Builders case (supra), especially paragraphs 27 and 28 of the said 5 decision, and then pass appropriate orders.
10. The parties are at liberty to take all such grounds which are available to them, including the grounds raised in this appeal.
11. Further, the parties are at liberty to produce all such material which is available to them, including the material sought to be produced before us at the time of hearing of this appeal.
12. The Civil Appeal is disposed of accordingly. Civil Appeal No.2117 and 2118 of 2007:
13. In view of the disposal of Civil Appeal No.2116 of 2007, these appeals are also disposed of, in the same terms, conditions, observations and directions.
Ordered accordingly.
............CJI.
(H.L. DATTU) ..............J. (S.A. BOBDE) ..............J. (ARUN MISHRA) NEW DELHI;
APRIL 21, 2015.
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ITEM NO.107 COURT NO.1 SECTION IIIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 2116/2007
GUPTA ENTERPRISES Appellant(s)
VERSUS
COMMERCIAL TAX OFFICER & ORS. Respondent(s)
(with appln. (s) for permission to place addl. documents on record and office report) WITH C.A. No. 2117/2007 (With Office Report) C.A. No. 2118/2007 (With Office Report) Date : 21/04/2015 These appeals were called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MR. JUSTICE ARUN MISHRA For Appellant(s) Mr.Arvind Datar, Sr.Adv.
Mr. Nikhil Nayyar,Adv.
Mr.K.S.Natrajan, Adv.
Mr.Dhananjay Baijal, Adv. Mr.N.Sai Vinod,Adv.
For Respondent(s) Mr.K.Radhakrishnan, Sr.Adv.
Ms. Liz Mathew,Adv.
Mr. G. Prakash,Adv.
UPON hearing the counsel the Court made the following O R D E R The Civil Appeals are disposed of, in terms of the signed order.
(G.V.Ramana) (Vinod Kulvi)
AR-cum-PS Asstt.Registrar
(Signed order is placed on the file)