1972 (6) TMI 64 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Jurisdiction of the Commercial Tax Officer to assess sales tax on imported goods.
2. Applicability of Section 5(2) of the Central Sales Tax Act, 1956.
3. Validity of the assessment orders and certificate proceedings.
4. Delay in seeking judicial review.

Detailed Analysis:

1. Jurisdiction of the Commercial Tax Officer to Assess Sales Tax on Imported Goods:
The petitioner, a company incorporated in England, challenged the jurisdiction of the Commercial Tax Officer (CTO), Sealdah Charge, to assess sales tax on certain linotype machines imported from England. The CTO had assessed sales tax on these machines for the periods from 1st July, 1957, to 24th July, 1957, and 25th July, 1957, to 30th June, 1958, rejecting the petitioner's claim for exemption under the Central Sales Tax Act, 1956. The petitioner argued that the sales of these machines to the Government of India and the Government of Punjab occasioned imports and were thus exempt under Section 5(2) of the Act.

2. Applicability of Section 5(2) of the Central Sales Tax Act, 1956:
The petitioner contended that the sales of the linotype machines to the Government of India and the Government of Punjab were in the course of import, thus falling under the exemption provided by Section 5(2) of the Central Sales Tax Act, 1956. The petitioner relied on the Supreme Court decision in K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division, Madras, which held that sales occasioning the import of goods into India are exempt from sales tax. The court examined the contractual documents and found that the goods were manufactured in England, shipped to India, and sold to the Indian government entities as per specific orders, thus occasioning the import.

3. Validity of the Assessment Orders and Certificate Proceedings:
The court found that the assessment orders by the CTO were invalid as they imposed sales tax on transactions that were exempt under Section 5(2) of the Central Sales Tax Act. The court noted that the sales of the linotype machines were indeed in the course of import as the goods were manufactured and shipped from England specifically to fulfill the orders placed by the Government of India and the Government of Punjab. Consequently, the court quashed the impugned assessment orders and the subsequent certificate proceedings initiated to realize the assessed taxes.

4. Delay in Seeking Judicial Review:
Although there was a delay in the petitioner moving the court against the impugned assessment orders, the court found the delay justified. The petitioner had initially sought payment of the assessed taxes from the Government of India and the Government of Punjab, which both declined on the grounds of exemption under Section 5(2). The court held that the existence of an alternative remedy by way of appeal did not bar the maintainability of the writ petition, especially given the patent error of jurisdiction by the CTO.

Conclusion:
The court ruled in favor of the petitioner, holding that the sales of linotype machines to the Government of India and the Government of Punjab occasioned imports and were thus exempt from sales tax under Section 5(2) of the Central Sales Tax Act, 1956. The impugned assessment orders and certificate proceedings were quashed. The court issued a writ of certiorari, making the rule absolute and restraining the respondents from proceeding with the certificate cases for the realization of the purported taxes. There was no order as to costs.