Bombay High Court
Commissioner Of Sales Tax vs Express Printing Press on 14 January, 1983
Equivalent citations: AIR 1983 BOMBAY 190
Author: Sujata V. Manohar
Bench: D.P. Madon, Sujata V. Manohar
JUDGMENT Sujata V. Manohar, J.
1. All these reference pertain to two daily publication called 'Joker ' and 'Jabara' printer by the respondent. Reference No. 8 of 1979 pertain to Assessment period 1-11972 to 31-12-1972, Reference No. 9 of 1979 pertains to Assessment period 1-1-1971 to 31-12-1971, Reference No. 10 of 19079 pertains to Assessment period 1-1-1970 to 31-12-1970 and Reference No. 11 of 1979 pertains to Assessment period 1-4-64 to 31-12-64.
2. It appears that in view of a certain intimation received by the Sale Tax Officer, Enforcement Breach, the place of business of the assessee was visited by the Sale Tax Officer, Enforcement Branch on 11th Aug., 1972 and 14th Aug., 1972, On taking search of the business premises of the asses, the Sale Tax Officer found that the assessee was sprinting to pamphlets viz., 'Joker' and 'Jabara'. The assessee informed the Sale Tax Officer that these two pamphlets were being printed at their printing press on a large scale. The state of these pamphlets wee considered by the assessee as sale of newspapers and therefore example for payment of any tax under the Bombay Sale Tax Act, 1959.
3. The sale of the publication effected during the relevant periods were determined by the Sale Tax Officer as follows;
"Period Sales determined 1-4-1964 to 31-12-1964 ... Rs. 9,972.00 1-1-1970 to 31-12-1970 ... Rs. 70,792.00 1-1-1971 to 31-12-1971 ... Rs. 77,754.00 1-1-1972 to 31-12-1972 ... Rs. 90,954.00
4. while assessing the assessee the Sale Tax Officer held that the said publication were not newspaper but were gods liable to tax under the Bombay Sale Tax Act, 1959. From this find given by the Sale Tax Officer the assessee went in appeal before the Assistant Commissioner of Sale Tax who confirmed the finding of the Sale Tax Officer. Being aggrieved by these orders passed by the Assistant Commissioner of Sale Tax of the assessee preferred second appeals before the Maharashtra Sale Tax Tribunal. There were Second Appeals Nos. 125, 543, 544 and 545 of 1974, being in respect of order for Assessment period 1-4-1964 to 31-12-1964, calendar years 1970. calendar year 1971, and calendar year 1972 respectively. By its judgment in Section Appeal N. 125 of 1974 the Tribunal held that there publication was newspapers and were therefore exempt from tax under the provisions of the Bombay Sales Tax Act, 1959. In view of this judgment, in the other three second appeals also the Tribunal held that these publications were newspapers and were therefore, exempt from tax under the provisions of the Bombay Sales Tax Act, 1959.
5. On the application of the department in respect of these decision, the following question which is a common question of law arising in all these four reference has been referred to us for determination by the Tribunal:
"Whether on the facts and in the circumstance of the case and on correct and proper interpretation of the provisions contained in sub-section (13) of S. 2 of the Bombay Sale Tax Act, 1959, the Tribunal was correct in law in holding that the publication 'Joker and 'Jabara' are newspaper and hence not goods?"
5-A. We are required to determined whether the two publication 'Joker' and 'Jabara' are newspapers. Under Entry 54, List 2 of the 7th Schedule to the Constitution, a State is entitled to levy taxes on the sale of purchase of goods other than newspapers subject to the provisions of Entry 92-A of List, 1. Under Entry 92, List of the 7th Schedule to the Colonial, the Union Government alone is entitled to levy taxes on the sale or purchase of newspaper and on advertisements published therein. Under Entry 92-A of List 1 of the 7th Schedule, Union Government along is entailed to levy taxes on the sale or purchase of good other than newspapers, where such sale or purchase take place in the course of inter-State trade or commerce. Thus a State Government cannot by levy tax on the sale or purchase of newspaper. Accordingly, under Section 2, clauses 13 of the Bombay Sales Tax Act, 1959 the definition of "goods: excludes newspapers. Hence, if the publication 'Joker' and 'Jabara' are newspaper as contended by the assessee. they would be exempt from payment of the under the Bombay Sale Tax Act. 1959.
6. Two sample issue to these publication have been annexed to these four reference. One of them is an issue of 'Joker' dated 11th August, 1972 and the other is an issue of 'Joker' dated 11th August, 1972,. The same two sample are annexed to all the four reference. Some other issue of these publication however, which were also shown by the parties to the adjudicating authorities have been described in the statement of case sent of us in these reference. In the statement of the case submitted to us the contents of these publication are described as follows:--
"The main item published in the said publication are certain numerological, astrological figures which are supposed to be lucky dates or lucky numbers and also lucky figures for 'Matka' ".
In the order of the Tribunal it is further stated that these publication also contain some news published in some space in these publication. In each of the two samples annexed, there is only one item of news in one corner. The rest of the paper contains various mathematical numbers which are mentioned therein are a prognosis of lucky numbers. At the foot of the front side of the publication, 'Joker' there is a statement to the effect that all the figure given in this publication are merely forecasts based on astrology. There is a similar note at the foot of the front side of the publication 'Jabara'.
7. The question is whether a pamphlet which given predictions of lucky figures or numbers of dates and contains some stray news item can be considered as a newspaper. The Oxford English Dictionary defines a newspaper as "a printed, now usually daily or weekly, publication containing the news. commonly with the addition of advertisements and other matters of interest". "News" is defined as" Tidings; the report or account of recent events or occurrences, brought or coming to one as new information; new occurrence as a subject of report or talk". Similarly Webster's Third New International Dictionary also defines a "newspaper" as "a paper that is printed and distributed daily, weekly, or at some other regular and usually short interval and that contains news, articles of opinion (as editorials) features, advertising, or other matter regarded as of current interests". It defines "news" as "a report of recent event; new information; fresh tiding".
In Butterworth's "Words and Phrases Legally Defined" edited by John B. Saunders, Volume 3, at page 341 under the heading "newspaper" the following extract is given from a judgment from Australia, reported in the case of Henderson v. Wilson, (1944) VLR 144:
"Under examining it (a supporting paper giving information as the probable result of horse races) I should say that it does not give news in the ordinary sense at all. It is not therefore a newspaper in the ordinary sense ..................It is a mere collection of facts with regard to past performances obviously directly related (as are the comments) to the object of forecast. It is a mere aid to betting not by way of news but by collating information".
Any paper, therefore, in order to be classified as a newspaper, should contained a report of recent events. A paper which mainly gives astrological and numerological predictions. cannot be considered as a newspaper. It was submitted by Mr. R. V. patel, learned counsel for the assessee that the two publication did contain some items of news. He also pointed out that some issue contained advertisement of films also. One must, however, look to the dominate purpose of a publication. In order to be called a newspaper, a paper's main purpose must be to convey news. It may incidentally publish forecasts or advertisements. But if the predominate aim of the publication is to convey news, it will be a newspaper. But an insertion a stray item of news of advertisement in a paper which predominantly gives merely predictions or forecasts of lucky numbers or figures, cannot turn that publication into a newspaper, especially if such stray news item appears to have been inserted merely in order to camouflage the publication as a newspaper. This is precisely what has been done in the present case. In our view the Tribunal was not correct in holding that because these predictions of lucky numbers of figures and dates are of interests to a certain class of members of the publication, they should be considered as news and the paper should be considered as newspapers.
8. It was also submitted by Mr. R. V. Patel, learned counsel from the assessee, that these publication have been registered under the Press and Registration of Books Act of 1867 and hence they are newspapers. Such a registration does not advance the case of the assessee. This registration is for the purpose of the provisions of the Press and Registration of Books Act, 1877. By virtue of such registration which has been done voluntarily by the assessee, the assessee cannot convert a publication which is not otherwise newspaper into a newspapers.
9. On behalf of the assessee it was also urged that because both these publication are daily publications, they should be considered as newspapers. In our view, in the absence of any significant news content in these publications, the mere fact that the publication are brought out daily, has no relevant to the question before us.
In the premises, we answer the question referred to us in each of these reference in the negative; that is to say, in favour of the department and against the assessee. The respondent will pay to the applicant the costs of these four references aggregating in all to Rs. 300/0
10. Answered in negative.