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TMI Blog1964 (10) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... as available if the goods were for resale irrespective of the place of sale. This is not correct. The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under section 5(2)(a)(ii) before the 1951 amendment - Civil Appeal No. 70 of 1964 - - - Dated:- 26-10-1964 - GAJENDRAGADKAR P.B., WANCHOO K.N., HIDAYATULLAH M., RAGHUBAR DAYAL AND MUDHOLKAR J.R. JJ. S.T. Desai, Senior Advocate (B.P. Maheshwari with him), for the appellant. N.S. Bindra, Senior Advocate (R.N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the quarter ended March 31, 1951, and the dispute in this case, briefly stated, centres round the inclusion of the purchases made by the company in its turnover for the said quarter. Before the Sales Tax Officer a claim was made to exclude these purchases on the ground that they were in the course of inter-State trade and were not taxable by reason of Article 286 of the Constitution. It may be mentioned here that the tax under the Orissa Act is a single point tax and the local purchases would have been subject to Sales Tax Act, if the company did not hold a certificate as a registered dealer and purchased free from sales tax on certificate that they were for resale in Orissa. The Sales Tax Officer, Mayurbhanj, did not accept the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce because those purchases are at a stage when the course of inter-State trade does not really commence. Such a sale, as held in Endupuri Narasimham's case(3) can be taxed and the imposition of tax is not repugnant to Article 286(2) of the Constitution. The cited case, be it noted, arose under the Orissa Sales Tax Act, 1947. It follows that the decision of the Sales Tax Officer to which we have just referred is supportable. The company then took an appeal before the Assistant Collector of Sales Tax, Sambalpur, who dismissed it. A revision petition before the Collector of Commercial Taxes (Sales Tax), Orissa, also failed. The Collector noted the change in the views about Article 286 of the Constitution but he held that the tax was payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was fully entitled to declare the circumstances under which the sale was to be tax-free or not tax-free. He pointed out that the Legislature had granted exemption from tax to sales between one registered dealer and another registered dealer on the latter's certificate that the goods were to be used either for resale or for manufacture but had enacted that if the purchasing registered dealer made a breach of the declaration in his certificate the first sale was to be taxable and that this was what had happened. He upheld the tax. The company made an application under section 23(1) of the Orissa Sales Tax Act asking for a reference of seven questions of law for the determination of the High Court. The Member, Board of Revenue, decline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hearing before us Mr. S. T. Desai conceded that questions 1, 2, 3 and 5 were not open to him as a result of the decision in Endupuri Narasimham's case [1962] 1 S.C.R. 314; 12 S.T.C. 282. He confined his arguments to the fourth question which he said arose from the decisions of the Tribunals. That is so general that it can be said to arise in every case. He contended on the strength of the terms of the contract produced by him that property in the sleepers passed to the Sleeper Control Officer in the State of Orissa itself and that as the goods were actually resold in the State they were not liable to tax because the company had complied with the certificate issued by it. This contention was not raised before and is a departure from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were added in the operative part after the quarter involved in this case and, therefore, the export of the sleepers and timber outside the State did not affect the company as prior to the 1951 amendment exemption was available if the goods were for resale irrespective of the place of sale. This is not correct. The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under section 5(2)(a)(ii) before the 1951 amendment. This is now settled by a series of decisions the last ..... X X X X Extracts X X X X X X X X Extracts X X X X
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