9911796707
TMI Blog1954 (11) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... arrying on business for a long time, did not take steps to get itself registered under section 9 of the Orissa Sales Tax Act. The Sales Tax Officer therefore having issued notice under section 12(5) of the Act assessed the petitioner to pay a tax of Rs. 3,115-10-0 by his order dated 16th December, 1949, for the periods beginning from the quarter ending 31st December, 1947, to 30th September, 1949. He has also ordered to pay a penalty of Rs. 500 under section 12(5). 2.. In response to the notice under section 12(5), the petitioner took up the plea of non-liability to pay any tax and has been sticking to this plea all along. The order of the Sales Tax Officer having been confirmed by all the authorities under the Act and the Commissioner hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 All. 754. against the judgment of the Allahabad High Court and their Lordships of the Supreme Court have upheld the decision of the Allahabad High Court in dismissing the appeal. The Supreme Court decision has been reported in Sales Tax Officer v. Budh Prakash Jai Prakash(1). The point before their Lordships was the same as the point before us, that is, whether a contract for sale can be the basis for taxation. Their Lordships of the Supreme Court observed that there was always a dis- tinction between the two concepts-sale and agreement to sell-both according to Indian and English laws. In a contract for sale there is no transference of ownership while a completed sale always means a transfer of ownership. Under the Government of India Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - rities, strongly relies upon two other decisions of the Supreme Court- Poppatlal Shah v. State of Madras(2) and State of Bombay v. United Motors (India) Ltd.(3) In the case reported in Poppatlal Shah v. State of Madras(2), PoppatIal Shah filed an appeal against the order of conviction of an offence punishable under section 15 of the Madras General Sales Tax (1) [1954] 5 S.T.C. 193; A.I.R. 1954 S.C. 459. (3) [1953] 4 S.T.C. 133; A.I.R. 1953 (2) [1953] 4 S.T.C. 188; A.I.R. 1953 S.C. 274. S.C. 252. Act. The appellant had his head office in the city of Madras and carried on business of selling and purchasing groundnut oil and sago etc. The point taken by the appellant was that the place of sale in regard to all the transactions was at Calcutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the pertinent point before us "whether a mere contract for sale or export from Orissa can serve as the basis for taxation" was not before their Lordships for decision as will appear from the points raised in the case indicated above. On the contrary, there are certain observations made by their Lordships which will support our view. In the last paragraph of the judgment in the beginning their Lordships observed: "The mere fact that the contract for sale was entered into within the Province of Madras does not make the transaction, which was com- pleted admittedly within another Province, where the property in the goods passed, a sale within the Province of Madras according to the provi- sions of the Madras Sales Tax Act and no tax cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in that behalf, it is necessary to ascertain the scope of such power and the nature and extent of the restrictions placed upon it by Article 286. The power is conferred by Article 246 (3) read with Entry 54 of List II of the Seventh Schedule to the Constitution. The Legislature of any State has, under these provisions, the exclusive power to make laws 'for such State or any part thereof' with respect to 'taxes on the sale or purchase of goods other than newspapers'. The expression 'for such State or any part thereof' cannot, in our view, be taken to import into Entry 54 the restriction that the sale or purchase referred to must take place within the territory of that State." This was a case of sales and purchases involving inter-State e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer v. Budh Prakash Jai Prakash(1) and accordingly we answer the question in the negative, that is to say, we are unhesitatingly of the opinion that the assessment in question is not legal. The reference is accordingly disposed of. The petitioner is entitled to costs incurred in the proceedings in the High Court. Hearing fee is assessed at Rs. 100 (one hundred rupees). 8.. After the arguments were closed, Mr. Mohapatra has drawn our attention to a decision of the Madras High Court in the case of Louis Dreyfus & Co., Madras v. State of Madras(2), wherein their Lordships decided, under Explanation 2 to section 2(h) of the Madras General Sales Tax Act, 1939, [which is similar to section 2(g) of the Orissa Sales Tax Act, 1947] that it was open ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
