1977 (1) TMI 132 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Interpretation of the term "person" in Section 46(2) of the Bombay Sales Tax Act, 1959.
2. Legality of forfeiture of tax collected on casual sales by non-dealers.
3. Validity of Sections 37 and 46 of the Bombay Sales Tax Act, 1959.
4. Legislative competence of the State to enact penal provisions under the Act.

Issue-wise Detailed Analysis:

1. Interpretation of the term "person" in Section 46(2) of the Bombay Sales Tax Act, 1959:
The primary issue was whether the term "person" in the first part of Section 46(2) of the Bombay Sales Tax Act, 1959, applies only to a dealer or also includes non-dealers. The Tribunal had held that the term "person" was restricted to dealers. However, the High Court disagreed, stating, "On a plain reading of these sections and the intention underlying them we fail to see any principle in confining the interpretation of the word 'person' in section 46(2) only to a dealer." The Court emphasized that the legislative intent was to prohibit all persons, whether dealers or not, from collecting tax unless they were liable to pay it to the government. This interpretation was necessary to prevent misuse of the Act's provisions by non-dealers who might collect tax without being liable to pay it.

2. Legality of forfeiture of tax collected on casual sales by non-dealers:
The Sales Tax Officer had issued notices and passed orders forfeiting the amounts collected by the respondent by way of taxes on casual sales, which were not part of the taxable turnover. The Tribunal allowed the respondent's appeals, holding that the word "person" in Section 46(2) was limited to dealers. The High Court, however, overturned this, stating, "The principle behind this section is thus clear. It is that a person who is not liable to pay tax to the Government in respect of the transaction in question should not be permitted to recoup such amount from his purchasers." Thus, the forfeiture of amounts collected as tax on casual sales by non-dealers was deemed lawful.

3. Validity of Sections 37 and 46 of the Bombay Sales Tax Act, 1959:
The High Court examined the validity of Sections 37 and 46, particularly in light of the argument that these sections should only apply to dealers. The Court noted, "The scheme of the said Act is that persons, who carry on business of selling or buying goods, once their turnover exceeds the limits prescribed by section 3 of the said Act, become liable to get themselves registered as dealers and pay the tax under the said Act." The Court held that the provisions of Sections 37 and 46 were valid and applicable to both dealers and non-dealers, ensuring that no unauthorized collection of tax could occur.

4. Legislative competence of the State to enact penal provisions under the Act:
The respondents challenged the legislative competence of the State to enact penal provisions like forfeiture under Sections 37 and 46. The High Court referred to the Supreme Court's decision in Abdul Quader & Co. v. Sales Tax Officer, which held that certain provisions of the Hyderabad General Sales Tax Act were beyond the legislative competence of the State. However, the High Court distinguished the present case, stating, "The Bombay Act on the contrary does provide for such a penalty for collecting the amount wrongly from the purchasers as envisaged by their Lordships." The Court concluded that the penal provisions in Sections 37 and 46 were valid and within the legislative competence of the State, as they were necessary to prevent misuse and enforce the Act's objectives.

Conclusion:
The High Court answered the referred question in the negative, holding that the term "person" in Section 46(2) is not restricted to dealers. The Court upheld the forfeiture of amounts collected as tax on casual sales by non-dealers and validated the penal provisions under Sections 37 and 46 of the Bombay Sales Tax Act, 1959. The legislative competence of the State to enact such provisions was affirmed, ensuring that the Act's objectives were effectively enforced. The respondent was directed to pay the costs of the references fixed at Rs. 300.