9911796707
TMI Blog2002 (9) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... , Civil Appeal No. 2376, Civil Appeal No. 2377, Civil Appeal No. 2378, Civil Appeal No. 2379, Civil Appeal No. 2380, Civil Appeal No. 2381, Civil Appeal No. 2382, Civil Appeal No. 3013, Civil Appeal No. 3014, Civil Appeal No. 3015, Civil Appeal No. 3016, Civil Appeal No. 3017, Civil Appeal No. 3018, Civil Appeal No. 3019, Civil Appeal No. 3020, Civil Appeal No. 5684 of 2000, W.A. Nos. 2000, W.A. Nos. 2001, W.A. Nos. 2002 of 1997, W.P. Nos. 25737, W.P. Nos. 25742, W.P. Nos. 25743, W.P. Nos. 25760, W.P. Nos. 25762, W.P. Nos. 26678, W.P. Nos. 33101, W.P. Nos. 33104 of 1997, W.P. Nos. 23114 of 1998 decided on September 10, 2002 Other Advocates: S. Ravindra Bhatt, Madhu Sudan Naik, Naveen R. Nath, Ms. Lalit Mohini Bhat, Ms. Hetu Arora, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee [2001] 121 STC 478. of the High Court, hence these appeals. 3.. Mr. Joseph Vellapally, the learned Senior Counsel appearing for the appellants, contended that on account of retrospective operation of the said explanation, the appellants were put to huge economic loss and great hardship because they could not pass the burden of tax on consumers for the past years, therefore, the retrospectivity might be declared as unreasonable and arbitrary. 4.. Mr. A.K. Ganguli, the learned Senior Counsel, while adopting the argument of Mr. Vellapally pleaded that this Court could relieve the appellants of the burden of tax imposed on them on account of retrospectivity of the explanation as by virtue of sections 18, 18A and 29 of the Act the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (1), every dealer shall pay for each year tax on his taxable turnover of sale (at every point of sale) (other than the last sale in the State) relating to all kinds of alcoholic liquors for human consumption [other than toddy, arrack, (fenny, beer and wine)] at the rate of fifty per cent of such turnover: Provided that at any point of sale other than first point of sale and the last point of sale, the taxable turnover shall be arrived at by deducting the turnover of such goods on which tax has been levied under this sub-section at the immediately preceding point of sale." 7.. In regard to computation of taxable turnover, referred to in the aforementioned proviso, the Commissioner of Commercial Taxes (for short, "the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods on which tax has been levied under this sub- section at the immediately preceding point of sale. Having perused the definitions of "taxable turnover" and "turnover" in clauses (u-1) and (v), respectively, of section 2(1) of the Act, we are of the view that the words, in italic, mean that "the turnover" therein which qualifies for deduction is not the price of goods impregnated with tax component but excluding it. To put it precisely, it means, "the turnover without the tax component". Inasmuch as at the point of the first sale, it is the price of the goods on which tax will be levied and that will form the turnover of the seller; at the next point (intermediary point) of sale such turnover, it is obvious, will have two elements, the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Senior Counsel for the appellants that as insertion of the explanation works harshly and causes great hardship to the appellants, it is unreasonable and so they have to be given relief, insofar as they could not pass the burden of tax on the ultimate consumer. 10.. It would be well to bear in mind that sales tax is an indirect tax, the burden of payment of tax is on the dealer. The Act does not require but permits a dealer to pass on the burden of tax to the consumer; ensuring that in the guise of tax no more than the actual amount of tax payable under the Act should be collected from the ultimate consumer. To check misuse of this liberty the Legislature has taken care to provide by section 18 of the Act that a person who is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court, the court cannot relieve the appellants of the burden of tax legally payable by them. 12.. It is a settled position that the Legislature can impose tax retrospectively though it cannot be arbitrary and unreasonable. At first sight it appears that the explanation which was inserted on March 5, 1996 retrospectively with effect from April 1, 1988, casts burden of paying tax for about eight years on the appellants. But on a closer scrutiny it becomes clear that till August 18, 1995 (date of pronouncement of High Court judgment) they could have and in fact collected the tax. The explanation was inserted on March 5, 1996 so, in effect, the retrospectivity which really affects them, is only for about six months. Even if they have not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
