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Karnataka Pawn Brokers' Association vs State Of Karnataka on 26 November, 1992 cites

Deputy Commercial Tax Officer, ... vs Enfield India Ltd., Co-Operative ... on 23 November, 1967

In support, of this contention, learned Counsel placed reliance on a Decision of the Supreme Court in Deputy Commercial Tax Officer, Saidapet v. Enfield India Ltd. In that case, it has been held that the expression 'Sale of goods' used in the legislative entries in the Constitution and the Government of India Act, 1935, bears the same meaning which it has in the Saie of Goods Act, 1930 and therefore the State Legislature may under Entry 54, List II, legislate in respect of the series of acts beginning with an agreement of sale between the parties competent to contract and resulting in transfer of property from one of the parties to the agreement to the other for a price, and matters incidental thereto, but cannot make a transaction which is not a sale within the Sale of Goods Act, a sale by a statutory fiction and impose tax thereon. Consequently, if the element of transfer of property from one person to another is lacking in any transaction, there is no sale and the State Legislature cannot treat it as a sale by a deeming clause, and bring it within the ambit of the taxing statute. In the instant case, the Act does not purport to tax a transaction which is not a sale but by treating it as a sale. The sale of pawned articles actually takes place as per the provisions of the Pawn Brokers Act. The pawn broker has authority under the statute to bring the pawned articles for sale and the pawnor loses all his right in the articles sold through the auctioneer at the instance of the pawn broker. This is not a case in which one can say that sale does not take place and nevertheless it is deemed as a sale and subjected to tax. In the case before the Supreme Court there was no actual transaction of sale, nevertheless it was treated as sale and was brought under the Act for the purpose of imposing sales tax. Whereas in the instant case, the position is quite different as has been already pointed out by us in greater detail. Therefore, we are of the view that the Decision in Enfield India Ltd. Co-operative Canteen Ltd. case has no application. A contention is also urged before us that it is not the regular business of the pawn broker to bring the pawned articles for sale. The sale of the pawned articles takes place occasionally and in many cases the sale conducted at his instance will not be sufficient to attract the provisions of the Sales Tax Act because the amount of turnover does not exceed the prescribed limit and that therefore, he cannot at all be considered to be a dealer. We may point out that this contention suffers from an infirmity. It is only when the turnover of the pawn broker exceeds the limit prescribed under Sub-section (5) of Section 5 of the Act, he becomes liable for filing the return and paying the sales tax. Therefore, we are of the view that this contention will not have any bearing on the question as to whether the pawn broker can be considered to be a deafer within the meaning of and as defined under the Act. In the view that we have taken it is not necessary for us to allude to the other Decisions cited at the Bar since in the said Decisions there is nothing which would compel us to take a view different from the view which we have taken as above. Further the various Decisions of the Supreme Court referred to and discussed earlier are exhaustive on the question in controversy.
Supreme Court of India Cites 9 - Cited by 42 - J C Shah - Full Document
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