9911796707
TMI Blog1977 (6) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of hearing, namely, that the appellant was not liable to pay tax in view of the Central Sales Tax (Amendment) Act, 1969, in cases where tax was demanded but not received by him. The Sales Tax Officer, Nedumangad, has issued a preassessment notice wherein he had proposed to assess the turnover covered by C forms at 3 per cent and those covered by defective C forms and not covered by C forms at the higher rate of 10 per cent. It is seen that no objection was filed to the said notice. Section 10(1) of the Central Sales Tax (Amendment) Act, 1969 (Act 28 of 1969), reads thus: "Where any sale of goods in the course of inter-State trade or commerce has been effected during the period between the 10th day of November, 1964, and the 9th day of June, 1969, and the dealer effecting such sale has not collected any tax under the principal Act on the ground that no such tax could have been levied or collected in respect of such sale or any portion of the turnover relating to such sale and no such tax could have been levied or collected if the amendments made in the principal Act by this Act had not been made, then, notwithstanding anything contained in section 9 or the said amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1), the burden of proving that no tax was collected under the principal Act in respect of any sale referred to in sub-section (1) or in respect of any portion of the turnover relating to such sale shall be on the dealer effecting such sale." The learned Judge noticed the decisions, viz., V. S. Narayanan Nair and Co. v. Union of India[1971] 28 S.T.C. 312; 1971 K.L.T. 526. and Abdul Khader Rawther v. Union of India page 328 infra; 1972 K.L.T. 432. In the earlier of these decisions, a learned Judge of this court had observed that there was no rational basis for differentiating a person who did not make a wrong collection from one who made a wrong collection and returned the same. In the second of the decisions the collection of the tax was made with an undertaking to return it if it is found that there is no liability for the tax. The Division Bench held that the case was not one where it could be said that there is no collection on the ground that no tax could be levied or collected. In that case, it was ruled that the assessee was not entitled to exemption under section 10. After noticing the two decisions, the learned Judge observed: "5..........Here the petitioner did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not collected, the learned Government Pleader invited our attention to the decision in Gannon Dunkerley Co., Madras (P.) Ltd. v. Sales Tax Officer, Mattancherry[1957] 8 S.T.C. 347; 1957 K.L.T. 380., where a Division Bench judgment of this Court had referred to the judicial exposition of the meaning of the words "assessment", "levy" and "collection". The learned Government Pleader pointed out that the view thus expounded had been approved by the Supreme Court in A. N. Lakshman Shenoy v. Income-tax Officer, Ernakulam[1958] 34 I.T.R. 275 (S.C.). He also drew our attention to the decision of the Supreme Court in Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd.A.I.R. 1972 S.C. 2563., paragraphs 20 and 21 of which contained the relevant discussion. These read as follows: "20. The term 'levy' appears to us to be wider in its import than the term 'assessment'. It may include both 'imposition' of a tax as well as 'assessment'. The term 'imposition' is generally used for the levy of a tax or duty by legislative provisions indicating the subject-matter of the tax and the rates at which it has to be taxed. The term 'assessment', on the other hand, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2th January, 1972, is printed below: ] S. ABDUL KHADER RAWTHER SONS Co. v. THE UNION OF INDIA The judgment of the Court was delivered by GOVINDAN NAIR, J.-The grounds on which the validity of the Central Sales Tax (Amendment) Act, 1969 (hereinafter referred to as the Act), has been challenged in this petition, we dealt with in detail in our judgment in 0. P. No. 3351 of 1969, which we pronounced just now. We need not go through those grounds in this petition again. For the reasons we have stated in that judgment, the contentions that the Act is bad as violative of articles 14 and 19 of the Constitution, as well as the interpretation sought to be placed on section 8(2A) of the Central Sales Tax Act, 1956, as amended, and section 9 of the Act, are rejected. 2.. The only further question in this case relates to the contention raised based on section 10 of the Act. It was urged that if amounts had been collected only as "contingent deposits" the collection cannot be said to be towards tax as envisaged by the section and so the petitioner will be entitled to the exemption under the section. We shall extract section 10: "10. Exemption from liability to pay tax in certain ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him for the period during which the collections were made or, in case he has not paid any amount for the period in question, he shall pay over to Government all the amounts so collected by him; and in default of such payment, the amounts may be recovered as if they were arrears of land revenue." 4.. Rule 11(7)(ii) of the Rules framed under the Mysore Sales Tax Act also contained a similar provision. It provided that the dealer shall pay in full the amount or amounts collected by him by way of tax or taxes to the Government on or before the 31st July of the year succeeding that in which such collection was made. The dealer had taken some deposits and the question arose whether the taking of those deposits will amount to collection by way of tax and, dealing with the question, their Lordships observed as follows: "After arguments as regards the proper interpretation of the words 'by way of tax under this Act' occurring in sub-sections (1) and (2) of section 11 had been advanced by the learned counsel on either side on the lines above indicated, it was realised that, on the facts of all these cases, there was no 'collection' at all, whether 'by way of tax' or otherwise, so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot lawfully demandable by him are not 'collections' within section 11, merely because the purchaser could in law make a claim for refund and enforce that right in appropriate proceedings. But such a case is far removed from the ones before us, where the payment by the purchaser was conditional and made on an express contract that the sum would be refunded in the contingency of the dealer being held not to be assessable in respect of the relevant turnover. On the facts of these appeals we are unable to hold that there has been any 'collection' by way of tax of any amount under section 11(2) of the Mysore Sales Tax Act, 1948." 5.. It is submitted by the counsel that the position so far as section 10 is concerned is the same and that the amounts received by the petitioner herein were by way of contingent deposits and, therefore, there was no collection of tax and the decision in State of Mysore v. Mysore Spinning and Manufacturing Co. Ltd.[1960] 11 S.T.C. 734 (S.C.). must apply. What was decided therein is that the person who received the amounts was only a custodian of the amounts when the receipt had been on the understanding or undertaking that he will hold it till the tax liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
