Himachal Pradesh High Court
Saini & Co. vs Union Of India on 8 September, 2000
Equivalent citations: [2001]113TAXMAN55(NULL)
JUDGMENT Thakker, C.J.
This petition is placed before the Full Bench pursuant to an order dated 8-12-1999, passed by a Division Bench in CMP No. 439 of 1999. The said order reads as under:
"Heard learned counsel for the petitioners and learned counsel appearing for the respondents.
The sum and substance of the submission made for the petitioners by the learned counsel appearing is that the Division Bench which rendered the decision in Rudra & Co. v. Union of India (1998) 233 ITR 66, has not properly construed the provisions contained in the Explanation to section 206C of the Income Tax Act, 1961, as amended and had the Explanation been properly construed, the conclusion arrived at by the learned Judges of the Division Bench could not have followed. As long as the judgment of the Division Bench stands, it is not given to another Division Bench to go behind the same to lay down any different proposition of law.
In view of the above, the claim for granting interim order as prayed for could not be countenanced since acceding to the request for the grant of interim order would amount to nullifying and rather ignoring the earlier Division Bench judgment, Hence, the CMP shall stand dismissed.
Since the submission of the learned counsel involves the consideration of the correctness or otherwise in the earlier Division Bench judgment in Rudra & Co.'s case (supra), it is just and necessary to avoid duplication of the hearing, the matter is straightaway placed before the Full Bench consisting of three Judges on 16-5-2000 for final hearing."
2. The petitioners have filed the present petition by involving jurisdiction of this court under article 226/227 of the Constitution praying for a writ of mandamus directing the respondents not to deduct income-tax at source under section 206C of the Act, from the petitioners who are holding L- 13, L- 13 A licences treating them as buyers, where goods have not been obtained by them by way of auction and where the sale price of such goods to be sold by them is fixed by or under the State Act. They are, thus, not buyers and, hence, not liable to pay income-tax at source under section 206C.
3. The case of the petitioners is that they are engaged in the business of liquor in the State of Himachal Pradesh. They are holding L-13/L-3A licences for the year 1999-2000, ie., from 1-4-1999 to 31-3-2000. The said licences have been granted under the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh read with the Himachal Pradesh Liquor License Rules, 1986. Under the said licences, the petitioners function as stockists and they sell liquor to the retailers at the rate fixed by the State Government. They do not purchase liquor in auction. They obtain licence at a fixed fee. They, therefore, cannot be said to be buyers, and the provision relating to collection of tax at source does not apply to them.
4. As stated in the petition, by the Finance Act, 1988, certain amendments were introduced in the Act. Section 44AC of the Act came to be inserted with effect from 1-4-1989, making special provision for computing profits and gains from the business of trading in certain goods.
Section 44AC as then stood read as under:
"Special provision for computing profits and gains from the business of trading in certain goods.-(1) Notwithstanding anything to the contrary contained in sections 28 to 43C, in the case of an assessee, being a person other than a public sector company (hereinafter referred to as the buyer), obtaining in any sale by way of auction, tender or any Other mode, conducted by any other person or his agent (hereinafter referred to as the seller),-
(a) any goods in the nature of alcoholic liquor for human consumption (other than Indian-made foreign liquor), a sum equal to forty per cent of the amount paid or payable by the buyer as the purchase price in respect of such goods shall be deemed to be the profits and gains of the buyer from the business of trading in such goods chargeable to tax under the head 'Profits and gains of business or profession';
(b) the right to receive any goods of the nature specified in column (2) of the Table below, or such goods, as the case may, be, a sum equal to the percentage, specified in the corresponding entry in column (3) of the said Table, of the amount paid or payable by the buyer in respect of the sale of such right or as the purchase price in respect of such goods shall be deemed to be the profits and gains of the buyer from the business of trading in such goods chargeable to tax under the head 'Profits and gains of business or profession'.
TABLE S.No. Nature of goods Percentage (1) (2) (3)
(i) Timber obtained under a forest lease Thirty-five per cent
(ii) Timber obtained by any mode other than under a forest lease Fifteen per cent
(iii) Any other forest produce not being timber Thirty-five percent (2) For the removal of doubts, it is hereby declared that the provisions of sub-section (1) shall not apply to a buyer (other than a buyer who obtains any goods, from any seller which is a public sector company) in the further sale of any goods obtained under or in pursuance of the sale under sub-section (1).
(3) In a case where the business carried on by the assessee does not consist exclusively of trading in (such) goods to which this section applies and where separate accounts are not maintained or are not available, the amount of expenses attributable to such other business shall be an amount which bears to the total expenses of the business carried on by the assessee the same proportion as the turnover of such other business bears to the total turnover of the business carried on by the assessee.
Explanation-For the purposes of this section, 'seller' means the Central Government, a State Government or any local authority or corporation or authority established by or under a Central, State or Provincial Act, or any company or firm."
5. Section 206C was also added, making provision for collection of tax at source with effect from 1-6-1988. The relevant part of section read thus:
"Profits and gains from the business of trading in alcoholic liquor, forest produce, scrap, etc.-(1) Every person, being a seller referred to in section 44AC, shall, at the time of debiting of the amount payable by the buyer referred to in that section to the account of the buyer or at the time of receipt of such amount from the said buyer in cash or by the issue of a cheque of draft or by any other mode, whichever is earlier, collect from the buyer of any goods of the nature specified in column (2) of the Table below, a sum equal to the percentage, specified in the corresponding entry, in column (3) of the said Table, of such amount as income-tax on income comprised therein.
TABLE S. No. Nature of goods Percentage (1) (2) (3)
(i) Alcoholic liquor for human consumption (other than Indian-made foreign liquor) Fifteen per cent
(ii) Timber obtained under a forest lease Fifteen per cent
(iii) Timber obtained by any mode other than under a forest lease Five per cent
(iv) Any other forest produce not being timber Fifteen per cent The constitutional validity of the above provisions was challenged by some of the petitioners in the Andhra Pradesh High Court in A. Sanyasi Rao v. Government of Andhra Pradesh (1989)178 ITR 33 (AP). The court upheld the validity of the said provision but it held that the tax so paid would be subject to final assessment in accordance with law. A similar view was taken by the High Court of Punjab and Haryana in Sat Pal & Co. v. Excise & Taxation Commissioner (1990) 185 ITR 375 (P&H).
6. According to the petitioners, by the Direct Tax Laws (Amendment) Act, 1989, a proviso came to be inserted in section 44AC. The said proviso read as under:
"Provided that nothing contained in this clause shall apply to a buyer where the goods are not obtained by him by way of auction and where the sale price of such goods to be sold by the buyer is fixed by or under any State Act."
After the amendment in section 44AC and insertion of the proviso, again tax was sought to be, collected at source. Hence, certain writ petitions were filed in various High Courts. It was contended that the persons holding L-13 licences were exempted from the provisions of sections 44AC and 206C and, hence, were not liable to pay tax at source. A Division Bench of this court in Gian Chand Ashok Kumar & Co. v. Union of India (1991) 187 ITR 188 (HP), upheld the said contention and observed that no tax can be deducted by the distilleries at source from persons who are holding L-13 licences.
7. Considering the relevant provisions of the Act in the light of grant of' L-13 licences, the Division Bench of this court concluded:
"Examination of the fundamental provisions governing the grant of L- 13 licences clearly shows that the provisions of sections 44AC and 206C were, unduly harsh and arbitrary in their application to cases where the transaction was strictly to be carried out in accordance with the specific provisions. It was this mischief which was intended to be eliminated by the new amendment. Otherwise, as calculated by the petitioners, they were to pay much more tax than the expected returns which could not be considered to be the object of the legislation as it originally stood. L-13 licensees appeal to be a class which, in view of the existing system of the transaction of sale of country liquor, cannot be considered to be a class evading payment of tax and, thus, falling under the category of others for whom sections 44AC and 206C were brought into the statute book, history, and object and reasons of which we have specifically dealt with quite elaborately in the initial part of this judgment.
The net result of our examination of the matter is that the present petitioners (L- 13 licensees) come within the purview of this proviso and the provisions of section 206C and the other parts of section 44AC (1) do not apply to buyers covered by the proviso.
The demand of tax at the purchase point from the petitioners by the respondents has no authority of law and they are restrained from doing so." (p. 202)
8. A similar view was also taken by the Division Bench of the High Court of Punjab and Haryana in K.K. Mittal & Co. v. Union of India (1991)187 ITR 208 (P&H). It was stated in the petition that SLP filed by the Union of India against the said decision was dismissed by the Supreme Court.
9. Thus, according to the petitioners, there were two provisions in the Act, i.e., sections 44AC and 206C, the former being imposing section and the latter being collecting provision. By the Finance Act, 1992, section 44AC was deleted from the statute and its substantial provision was incorporated in section 206C virtually making the said provision as composite one for imposition of tax as also machinery for collection.
10. The relevant part of section 206C, after the amendment of 1992, reads as under:
`Profits and gains from the business of trading in alcoholic liquor, forest produce, scrap, etc. -(1) Every person, being a seller, shall, at the time of debiting of the amount payable by the buyer to the account of the buyer or at the time of receipt of such amount from the said buyer in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, collect from the buyer of any goods of the nature specified in column (2) of the Table below, a sum equal to the percentage, specified in the corresponding entry in column (3) of the said Table, of such amount as income-tax:
S. No. Nature of goods Percentage (1) (2) (3)
(i) Alcoholic liquor for human consumption other than Indian-made foreign liquor Fifteen per cent
(ii) Timber obtained under a forest lease Fifteen per cent
(iii) Timber obtained by any mode other than under a forest lease Five per cent
(iv) Any other forest produce not being timber Fifteen per cent ** ** ** Explanation-For the purposes of this section,-
(a) 'buyer' means a person who obtains in any sale, by way of auction, tender or any other mode, goods of the nature specified in the Table in sub-section (1) or the right to receive any such goods but does not include,-
(i) a public sector company.
(ii) a buyer in the further sale of such goods obtained in pursuance of such sale, or
(iii) a buyer where the goods are not obtained by him by way of auction and where the sale price of such goods to be sold by the buyer is fixed by or under any State Act;
(b) 'seller' means the Central Government, a State Government or any local authority for corporation or authority established by or under a Central, State or Provincial Act, or any company or firm or co-operative society."
11. The petitioners stated that distilleries in the State of Punjab and Haryana once again started deducting income-tax at source from wine contractors in the light of amendment in section 206C. The wine contractors were, therefore, constrained to approach the High Court of Punjab and Haryana. In K.K. Mittal & Co. v. Union of India (1991) 203 ITR 201 (P&H), it was held by the court once again that no income-tax can be deducted at source from L- 13 licensees as they were not covered by section 206C. It was further stated by the petitioners that against the said judgment also SLPs were filed which were dismissed by the Supreme Court.
12. Thus, according to the petitioners, the settled legal position was that neither before the Amendment Act, 1992 the authorities could have deducted tax at source from L-13 licensees under section 44AC nor they were entitled to deduct such tax under section 206C after the amendment of 1992. The view as was taken by the High Court of Punjab and Haryana as well as by this court in Gian Chand Ashok Kumar & Co.'s case (supra) was in accordance with law. SLPs filed against the decisions of the High Court of Punjab and Haryana were also dismissed by the Supreme Court.
13. Then in Union of India v. A. Sanyasi Rao (1986) 219 ITR 330 (SC), the Supreme Court upheld the constitutional validity of sections 44AC and 206C confirming the decision of the High Court of Andbra Pradesh in A. Sanyasi Rao's case (supra), observing that the tax paid by the assessee under the said provisions was subject to final assessment under sections 28 to 43C of the Act. The legal position regarding exemption from deduction of tax at source was never the question before the Apex Court. Even thereafter, the High Court of Punjab and Haryana in Civil Writ Petition No. 11706 of 1994 ruled that deduction was not legal and valid. Hence, when such deduction was sought to be made, allowing the petition, the High Court declared the deduction to be illegal and unlawful.
14. It, however, appears that again, respondent Nos. 3 arid 4 (Patiala Distilleries & Mfrs. Ltd. and Rangar Breweries Ltd.), started deducting income-tax at source under the garb of section 206C from L-13, L-13A licensees including the petitioners. The deduction was to the extent of 10 per cent + 10 per cent surcharge thereon, on the total purchase price. One of such bills is also enclosed to the petition as Annexure P-5. According to the petitioners, the deduction was ex facie illegal, unlawful, arbitrary. unreasonable as also inconsistent with the provisions of the Act and contrary to the decision of this court as well as of the Supreme Court. A direction is, therefore, sought against the respondents from deducting tax at source from the petitioners, who are holding L-13, L-13A licences.
15. Notices were issued, pursuant to which respondents appeared. Affidavits and further affidavits were filed by the authorities as well as contesting respondents.
16. In counter-affidavits, the respondents stated that no doubt in Gian Chand Ashok Kumar & Co.'s case (supra) a Division Bench of this court held that no tax could be deducted at source from L-13 licensees, by the distilleries, who supplied liquor to them. It was, however, contended that the said case was decided in the light of provisions of section 44AC then stood. But in view of the amendment in 1992 and deletion of section 44AC, the ratio laid down in Gian Chand Ashok Kumar & Co's case (supra), was no more applicable. It was also their case that vires and validity of section 44AC and section 206C having been upheld by the Supreme Court in A. Sanyasi Rao's case (supra), it was not open to L-13, L-13A licensees to contend that no tax could be deducted at source and Gian Chand Ashok Kumar & Co.'s case (supra) had lost its efficacy. The petitioners could be said to be 'buyers' and they were subject to the provisions of section 206C. The action of the distilleries to deduct tax at source, hence, was in accordance with law.
17. Now, a Division Bench of this court in Rudra & Co. v. Union of India (1998) 233 ITR 66 (HP), upheld the contention of the authorities. After considering the decision in Gian Chand Ashok Kumar & Co.'s case (supra) of this court and in A. Sanyasi Rao's case (supra) of the Supreme Court upholding the constitutional validity of section 206C, the Division Bench held that after deletion of section 44AC by the Finance Act, 1992, with effect from 1-4-1993. L- 13, L- 13A licensces, also became liable under section 206C and tax could be deducted at source as such a per-son can be said to be a buyer' within the meaning of section 206C.
18. The attention of the Division Bench in Rudra & Co.'s case (supra) was invited to the Explanation and it was contended that a person holding L-13 licence cannot be said to be 'buyer' and, hence, the provision of section 206C would not apply to him. The Division Bench, however, repelled the contention stating:
"It is true that the petitioners herein have not purchased the country liquor by way of auction but that does not take them out of the purview of section 206C. The Explanation to the section is clear as to who is a buyer. It says that the buyer is one 'who obtains in any sale, by way of auction, tender or any other mode, goods of the nature specified in the Table As the petitioners paid the purchase price to the Government distilleries, they squarely come under the Explanation 'or any other mode'.
It, is, therefore, obligatory on the part of the seller - the Government distilleries -to collect income-tax from the petitioners at the rates specified in sub-section (1) of section 206C." (p. 69) In view of the fact that a different note was struck and contrary view was taken by the Division Bench of this court in Rudra & Co.'s case (supra) than the one taken by another Division Bench of this court earlier in Gian Chand Ashok Kumar & Co.'s case (supra), it was thought fit by the court to refer the matter to a Full Bench and that is how the matter is now before us.
19. We have heard Mr. Mohan Jain with N. K. Thakur, the learned counsel, for the petitioners; Mr. K.S. Rathore, the learned additional, Central Government standing counsel for respondent No. 1: Mr. M.S. Guleria, the learned Deputy Advocate General with Mr. Vivek Thakur, the learned Assistant Advocate General, for respondent No. 2; Mr. Anand Sharma, the learned counsel for respondent Nos. 3 and 4 and Mr. Indar Singh with Mr. Vijay Thakur, the learned counsel for respondent No. 5.
20. The only question which arises for our consideration is whether the law laid down by a subsequent Division Bench in Rudra & Co.'s case (supra) is in consonance with law or that in view of the deletion of section 44AC in 1993 and insertion of the said provision in section 206C made ally change in legal position in the light of the law laid down by the Supreme court in A. Sanyasi Rao's case (supra) virtually obliterating the ratio laid down in Gian Chand Ashok Kumar & Co.'s case (supra).
21. According to the petitioners, since Sat Pal, the law is well-settled and it is this. Section 44AC read with section 206C made special provision for computation of tax and collection of tax at source. A proviso as inserted by the Finance Act, 1988, however, clarified that a person cannot be said to be a 'buyer' if the goods are not obtained by him by way of auction or , there the sale price of such goods to be sold by the buyer is fixed by or under any State Act. According to the petitioners, L- 13 and L- 13A licensees cannot be said to be buyers. As they do not obtain goods in auction, the first ingredient of the buyer was not satisfied. Likewise, sale price of such goods prescribed by the department, i.e., the authorities and, thus, second condition was also not present. The petitioners, therefore, cannot be said to fall within the definition of 'buyers' and, hence, provision relating to deduction of tax at source would not apply in their cases. Gian Chand Ashok Kumar & Co.'s case (supra) was, therefore, rightly decided in the line of the decision of High Court of Punjab and Haryana in Sat Pal & Co.'s case (supra) and other cases, which had gone up to the Supreme Court and the SL-Ps were dismissed and it still holds the field.
22. It was also submitted that even after the amendment in 1993, virtually there is no difference in legal position so far as definition of 'buyer' is concerned. There was no liability of L-13, L-13A licensees for payment of tax at source earlier under the proviso to section 44AC. After the amendment in 1993, the only change effected is that the said provision found place in section 206C as Explanation. Thus, earlier proviso to section 44AC has now become Explanation to section 206C. In principle, however, there is no change whatsoever and a person who was not a 'buyer' under the proviso to section 44AC has not become 'buyer' under the Explanation to section 206C. It was also submitted that the decision of the Supreme Court in A. Sanyasi Rao's case (supra) is altogether irrelevant and did not change the legal position. There the Apex Court was concerned with constitutional validity of the provisions, which were even prior to the said decisions held valid. The Division Bench of this court, therefore, in Rudra & Co.'s case (supra) was not right in distinguishing Gian Chand Ashok Kumar & Co.'s case (supra) and relying upon A. Sanyasi Rao's case (supra) and in holding that after amendment in section 206C and decision in A. Sanyasi Rao's case (supra) L- 13, L- 3A licensees became buyers. it was, therefore, submitted that the decision of Rudra & Co.'s case (supra) deserves to be overruled and the principle laid down in Gian Chand Ashok Kumar & Co.'s (supra) deserves to be reiterated by restraining the respondents from deducting tax at source.
23. The respondent-authorities as well as the distilleries, on the other hand, supported the action taken by them submitting that the law laid down in Rudra & Co.'s case (supra) is good law, in consonance with the provisions of he Act after the amendment of 1993 and in the line of the ratio laid down in A. Sanyasi Rao's case (supra). It was, therefore, submitted that the authorities had rightly sent telephonic instructions on 9-6-1998 and sent a letter dated 16-6-1998 (Annexure R3/1 to the affidavit in reply of respondent No. 5) to deduct tax at source from the petitioners and they are clearly in accordance with law. Gian Chand Ashok Kumar & Co.'s case (supra) was rightly held not applicable by the subsequent Division Bench in Rudra Bench in Rudra & Co.'s case (supra). Since the petitioners are 'buyers', section 206C is attracted and the distilleries were under obligation to deduct tax at source. The petition, therefore, deserves to be dismissed.
24. Having given anxious consideration to the facts and circumstances of the case, in our opinion, the petition deserves to be allowed. It has been observed in the decision of the second Division Bench in Rudra & Co.'s case (supra) that the point regarding deduction of tax at source was covered in Gian Chand Ashok Kumar & Co.'s case (supra) wherein it was held that a person holding L-13 licence cannot be said to be termed as 'buyer' within the meaning of proviso to section 44AC and, hence, he would not fall within the mischief of section 206C. According to the Division Bench, however, the ratio of Gian Chand Ashok Kumar & Co.'s case (supra) was no more applicable after deletion of section 44AC and insertion of Explanation in section 206C. For coming to that conclusion, the subsequent Division Bench relied upon a decision of the Supreme Court in A. Sanyasi Rao's case (supra). In our considered opinion, however, the Division Bench was not right in taking that view. So far as A. Sanyasi Rao's case (supra) is concerned, there merely constitutional validity of certain provisions came up for consideration before the Apex Court and they were held to be intra vires and constitutional. But even otherwise, the provisions were held to be valid and constitutional. Gian Chand & Ashok Kumar & Co.'s case (supra) was not decided on the reasoning that such provisions were not within the legislative competence or were otherwise ultra vires. The point related to interpretation of proviso to section 44AC and it was held that L-13 licensee could not be said to be 'buyer' as he did not purchase liquor in auction and sale price of such goods to be sold by him was fixed by or under the State Act. In our considered opinion, deletion of section 44AC and insertion thereof in section 206C did not change the legal position. Explanation to section 206C virtually did the same thing which was formally done by proviso to section 44AC. A person who was a 'buyer' under section 44AC prior to deletion of the said provision remained as 'buyer' even after amendment in 1993 in section 206C. Likewise, a person, who was not a 'buyer' and whose case was covered under the proviso to section 44AC prior to amendment of 1993 remained as such and did not become 'buyer' under the Explanation to section 206C even after the amendment of 1993. To put it differently, stating positively, a person, who was a 'buyer' earlier under section 44AC remained as 'buyer' under section 206C. Similarly, stating negatively, a person, who was not a 'buyer' under the former provision remained as such and did not become 'buyer' under the latter provision after insertion of section 206C.
25. In our considered opinion, therefore, the former Division Bench in Gian Chand Ashok Kumar & Co.'s case (supra) was wholly right and fully justified in coming to the conclusion that a person covered by proviso to section 44AC cannot be said to be a 'buyer' and, hence, no tax can be deducted at source in respect of liquor obtained by him from distilleries. The same principle and analogy will apply to section 206C as cases of such L-13 and L-13A licensees under Explanation to section 206C. We are further of the view that the decision of the Supreme Court in A. Sanyasi Rao's case (supra) has no effect on the above principle whatsoever. The subsequent Division Bench in Rudra & Co.s case (supra), therefore, in our view, was not right in holding that the legal position had changed and liability of L13 licensees arose under section 206C. To us, it is clear that by holding so, the subsequent Division Bench in Rudra & Co.'s case (supra) has committed an error of law. With due respect to the Division Bench, we hold that it did not lay down the correct law. We, therefore, approve the ratio laid down in Gian Chand Ashok Kumar & Co.'s case (supra) and overrule Rudra & Co.s case (supra).
26. We may further state that a similar view has been taken by a Division Bench of the High Court of Punjab and Haryana recently in Naresh Kumar & Co. v. Union of India ILR 2000 (2) P &H. 64.
27. For the foregoing reasons, the petition deserves to be allowed and is, accordingly, allowed. We reiterate the ratio laid down in Gian Chand Ashok Kumar & Co.s case (supra) and overrule the decision of Rudra Co.'s case (supra). We declare that the persons holding L-13, L-13A licences cannot be said to be 'buyer' and provisions relating to deduction of tax at source do not apply to them. Consequently, the letter dated 16-6-1998 (Annexure R3/ 1) must be held to be illegal and contrary to law and the respondents are permanently restrained from deducting any amount towards tax at source. Order accordingly. In the facts and circumstances of the case, however, there shall be no order as to costs.