1976 (2) TMI 153 - HC - VAT and Sales Tax

Issues Involved:
1. Definition and taxability of "fresh fish" and "frozen meat."
2. Imposition of sales tax on rental income from cold storage.
3. Validity of the reassessment notices and orders.
4. Jurisdiction and maintainability of the petition under Article 226 of the Constitution of India.

Issue-wise Detailed Analysis:

1. Definition and Taxability of "Fresh Fish" and "Frozen Meat":
The primary issue was whether meat and fish preserved by refrigeration in the petitioner-firm's cold storage would be considered "fresh" or "frozen" and thus liable to sales tax under the Kerala General Sales Tax Act, 1963. The court noted that under S.R.O. 342/63, "fresh fish" and "meat except meat which is cured or frozen" were exempt from tax. The petitioner argued that the fish and meat sold were fresh and not frozen, as their cold storage maintained a temperature not lower than 0^0C, which does not freeze the meat or fish. The revenue contended that "fresh" meant fish directly from the water and meat directly from the slaughterhouse, while "frozen" included any preservation by refrigeration. The court applied the principle that terms in sales tax statutes should be interpreted in their popular sense, as understood by those dealing in the goods. It concluded that "fresh fish" means fish that is not stale, musty, or vapid, and the purpose of cold storage is to preserve freshness. Therefore, fish preserved by refrigeration remains "fresh fish" and is exempt from tax. Conversely, the court found that "frozen meat" includes meat preserved by refrigeration, and thus the turnover regarding meat was taxable.

2. Imposition of Sales Tax on Rental Income from Cold Storage:
The petitioner challenged the imposition of sales tax on the rental income collected for storing meat and fish in their cooler, arguing that no element of sale was involved. The court agreed, stating that since no sale was involved in renting out the cold storage space, the second respondent erred in imposing sales tax on the rental income.

3. Validity of the Reassessment Notices and Orders:
The petitioner received reassessment notices stating that the original assessments wrongly allowed exemptions for the turnover of frozen meat, proposing to assess the petitioner for escaped turnover. The petitioner objected, arguing that the reassessment included turnover related to fish and rental income without prior notice, violating principles of natural justice. The court found that the reassessment orders, insofar as they included fish and rental income, were issued without proper notice to the petitioner and thus violated natural justice principles. The court directed the second respondent to reassess the turnover regarding meat afresh but held that the turnover regarding fish and rental income could not be reassessed.

4. Jurisdiction and Maintainability of the Petition under Article 226:
The revenue argued that the petition under Article 226 was not maintainable as the petitioner did not exhaust alternative remedies provided under the Act. The court held that the petition was maintainable, especially given that the Sales Tax Appellate Tribunal had already taken a definitive view on the main questions raised. The court noted that if the petitioner's contentions were correct, the assessing officer committed errors of law apparent on the face of the record, justifying the exercise of the court's extraordinary jurisdiction.

Conclusion:
The court concluded that the turnover regarding fish and rental income from the cold storage could not be subjected to fresh assessment. However, the turnover regarding meat preserved by refrigeration was taxable. The second respondent was directed to reassess the turnover regarding meat afresh. The original petition was disposed of with no order as to costs.

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