Kerala High Court
Deputy Commissioner Of Sales Tax (Law), ... vs S.K. Arts on 27 November, 1986
Equivalent citations: [1987]64STC411(KER)
Author: K.S. Paripoornan
Bench: K.S. Paripoornan
JUDGMENT T.L. Viswanatha Iyer, J.
1. These tax revision cases at the instance of the Revenue relate to the assessments made on the respondent under the Kerala General Sales Tax Act, 1963 (the Act in brief) for the assessment years 1973-74, 1974-75 and 1975-76. The assessee is a dealer in ivory, horn and rosewood articles. Inter alia he had purchased finished goods from unregistered dealers and exported them, during the years in question. We are concerned in these revision cases only with the correctness or otherwise of the imposition of tax under Section 5A of the Act on the purchases of these finished goods from unregistered dealers. The first appellate authority upheld the imposition of the tax under Section 5A, but the Tribunal, on appeals, set aside the orders and held the assessee to be not liable to tax in respect of the purchases. The Revenue has come up in revision.
2. Section 5A(1) which is relevant reads as under :
5A. Levy of purchase tax.-(1) Every dealer who in the course of his business purchases from a registered dealer or from any other person any goods, the sale or purchase of which is liable to tax under this Act, in circumstances in which no tax is payable under Section 5 and either-
(a) consumes such goods in the manufacture of other goods for sale or Otherwise ; or
(b) disposes of such goods in any manner other than by way of sale in the State; or
(c) despatches them to any place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce, shall, whatever be the quantum of the turnover relating to such purchase for a year, pay tax on the taxable turnover relating to such purchase for that year at the rates mentioned in Section 5.
Two of the conditions among others, which have to be satisfied cumulatively, to invoke the Section are : (1) the purchase is in circumstances in which no tax is payable under Section 5 and (2) the dealer either (a) consumes the goods in the manufacture of other goods for sale or otherwise ; or (b) disposes of the goods in any manner other than by way of sale in the State ; or (c) despatches the goods to any place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce.
3. In setting aside the orders of the first two authorities, the Tribunal relied on explanation 4 to the definition of "sale" contained in Section 2(xxi) of the Act and held that the export sales effected by the petitioners must be deemed to be sales that took place within the State. The Tribunal drew support for this finding from the decision of the High Court of Madras reported in Thangiah Nadar v. State of Tamil Nadu [1980] 46 STC 67. In that decision, the High Court of Madras while dealing with similar provisions in the Tamil Nadu Act, held that by virtue of the explanation, such export sales, (where the goods were in the State either at the time when the contract was made or at any rate at the time when the appropriation was effected), were local sales, for purposes of Section 7-A(1)(b) of the Tamil Nadu Act, (which corresponds to Section 5A(1)(b) of the Kerala Act) and hence the purchases, were not subject to levy of tax under Section 7-A. The decision in Thangiah Nadar's case [1980] 46 STC 67 (Mad.) has not however, been accepted by this Court (vide the decision in Deputy Commissioner of Sales Tax v. Indian Oil Corporation Ltd. ILR (1986) 2 Ker 478. This Court was of the opinion that merely because Clause (b) of Sub-section (1) of Section 7-A of the Madras Act was excluded by virtue of the explanation to the definition of sale, it could not be said that the other two Clauses, (a) and (c) were also excluded. Such transactions, this Court held, would clearly fall under Clause (c) of Section 5A(1) of the Kerala Act as the goods purchased had been despatched to places outside the State and such despatch was not as a direct result of sale or purchase in the course of inter-State trade or commerce. Satisfaction of any one of the conditions in Clauses (a), (b) or (c) of Section 5A(1) of the Kerala Act was sufficient to make the purchase turnover exigible to tax at the rates specified in Section 5. The ratio in Thangiah Nadar's case [1980] 46 STC 67 (Mad.) did not therefore, find acceptance with this Court.
4. In view of this decision by a Bench of this Court, in the case of Indian Oil Corporation Ltd. ILR (1986) 2 Ker 478 the Tribunal's decision rendered on the basis of Thangiah Nadar's case [1980] 46 STC 67 (Mad.) has to be set aside.
5. This would normally have resulted in the tax revision cases being allowed and the orders of the first appellate authority being restored. But there is one aspect of the matter which has not been adverted to or considered by the Tribunal. Section 5A is not ipso facto attracted on the satisfaction of one or other of the conditions specified in Clauses (a), (b) or (c) of that section. There is a further and more important condition precedent for the applicability of Section 5A, namely, that the sale of purchase is in circumstances in which no tax is payable under Section 5. The exigibility to purchase tax is dependant on a finding that the transaction was one in which no tax was payable under Section 5. The goods in question were liable to tax at the sale point and were taxable at multi point. Non-payment of the tax on the sale may be due to various circumstances as pointed out by this Court in Malabar Fruit Products Co. v. Sales Tax Officer [1972] 30 STC 537 (paragraphs 27, 28 and 29). Sales tax may not be payable by the seller for the reason that he belongs to an exempted category of sellers, or for the reason that his turnover does not exceed the minimum fixed for liability to tax, or for other reasons. In this case, the Tribunal has proceeded only on the basis that since the purchases were from unregistered dealers, the purchases become liable to tax if one or other of the conditions specified in Clauses (a), (b) or (c) is satisfied. We feel that the Tribunal has misdirected itself in law in thinking that if the purchases are from unregistered dealers, the only point to be considered is whether any one of the conditions specified in Clauses (a), (b) or (c) exists. This is not correct. Assessment under Section 5A is permitted only if the transaction is in circumstances in which no tax is payable under Section 5. Therefore the question is not whether the seller is a registered dealer or an unregistered dealer. The question is whether tax was payable by him under Section 5 in respect of the transaction. Even an unregistered dealer is liable to pay tax, in case his total turnover exceeds the minimum prescribed by the Act. The fact that the selling dealer is not registered under the Act is not the criterion ; the point to be adverted to is whether he is a person by whom tax will be payable under the Act. The effect of registration is that it enables the dealer to collect the tax payable by him from the purchaser. There is also a corresponding embargo on unregistered dealers collecting any amount by way of tax. Non-registration need not necessarily imply non-liability to pay tax under Section 5. The authorities have therefore, necessarily to address themselves to this question whether the selling dealer is liable to tax under Section 5 before imposing the liability under Section 5A.
6. This Court had in the decision in Kerala Premo Pipe Factory Ltd. v. State of Kerala [1984] 57 STC 84, stated in a slightly different context:
Section 5A is intended to drag into the net of taxation transactions of purchase where such transactions are not liable to suffer tax in the hands of the seller and the goods do not return to the commercial stream for the purpose of being taxed. If goods purchased by a dealer are consumed or used in the manufacture of other goods no doubt the goods so manufactured are subjected to tax, but if the components are not likely to suffer tax as such components they are taxable under Section 5A. The question is not whether the sales tax authorities have imposed tax upon the transaction in the hands of the seller to the assessee, but whether that is liable to be so taxed. In this case it is very clear that the person who sold to the assessee had a turnover in excess of the minimum and irrespective of the question whether he was registered as a dealer or not he was liable to pay tax under the General Sales Tax Act. If so, it cannot be said that transaction of purchase by the assessee was under circumstances in which no tax was payable under Section 5.
These observations apply with equal force to the case in hand.
7. The Tribunal has not applied its mind to this aspect of the matter, which according to us is crucial and relevant and necessary to fasten liability under Section 5A. The matter has therefore, to go back to the Tribunal for consideration of this question whether the sellers were liable to tax under the Act despite their being not registered dealers under the Act. The remit is limited to this aspect of the matter alone.
The tax revision cases are, therefore, allowed and the matters remitted to the Kerala Sales Tax Appellate Tribunal, Trivandrum, for fresh consideration in the light of the observations contained hereinabove. No costs.