ORDER
S. Rajendra Babu, J.
1. The petitioner is common in these writ petitions. It is registered under the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the 'Act') and is engaged, inter alia, in the sale of student note-books, the cost of which does not exceed Rs. 50 per book.
2. A notification dated 1st September, 1982 was issued by the Government of Karnataka under section 8-A of the Act exempting the tax payable under the Act on the sale of goods specified therein, with effect from 1st September, 1982. The relevant portion of the notification reads thus :
'In exercise of the powers conferred by section 8-A of the Karnataka Sales Tax Act, 1957 (Karnataka Act 25 of 1957), the Government of Karnataka hereby exempts with effect from first day of September, 1982, the tax payable under the said Act on the sale of goods specified in the Schedule below :
* * *
2. Student note-books, exercise books, copy books, outline maps, pencils, erasers, instrument boxes, dissection boxes, T-squares and drawing boards, provided that the price of each such goods does not exceed fifty rupees.
* * *'
Interpreting this notification the Commissioner of Commercial Taxes has issued a clarification on 22nd February, 1988 stating that in respect of the note-books only the rate of tax is reduced hence turnover tax is payable and no exemption is available thereto. On the basis of this clarification the assessing officers have issued notices under section 12A of the Act to reassess the tax due so as to include turnover tax payable on note-books.
3. The learned counsel for the petitioner contended while challenging the validity of the notices issued under section 12A of the Act that in view of the definition of the word 'tax' under section 2(1)(u) of the Act the notification exempts payment of tax levied even under section 6-B of the Act and therefore the aforesaid notification should be understood as covering student note-books for the purpose of section 6-B also.
4. The learned High Court Government Pleader referred to the statement of objections and contended that what is exempted under the notification is only sales tax and not turnover tax levied under section 6-B of the Act. Elaborating the same he contended that the levy under section 5 or 6-B of the Act and the scheme of the Act treated the two taxes differently for the purpose of levy, assessment or collection and hence the notification in question had no bearing at all on the exemption on turnover tax. He also submitted that second proviso to section 6-B(1) of the Act makes it clear that no deduction from turnover is permissible except as provided in the section itself and hence any exemption granted under any other provision of the Act is not applicable to that levy.
5. Tax on the turnover of sales or purchases is levied under entry 54, List II of the Seventh Schedule to the Constitution. The levy under section 6-B is in the nature of sales tax when the turnover of the dealers exceeds a limit in a year and it is a tax on the aggregate of the sales effected by the dealers during the year as held in S. Kodar v. State of Kerala : [1975]1SCR121 while dealing with a provision of the Tamil Nadu Additional Sales Tax Act which is similar to section 6-B of the Act. In essence there being no difference between the two kinds of levy one under section 5 or 6 and another under section 6-B of the Act the contention of the respondents to the contrary is rejected.
6. The learned Government Pleader relying on the following passage in B. P. Automobiles v. State of Karnataka : 1983(2)KarLJ105 :
'......... So far as the exemptions under section 8-A are concerned, it is common ground that any exemptions granted under section 8-A, to the extent they are not otherwise and specifically excluded for purposes of the levy under section 6-B, are attracted to the levy under section B-B.'
submitted that the exemption granted under section 8-A of the Act is not attracted under section 6-B of the Act. From a reading of the above, it is clear that conclusion was drawn on the basis of the concession made by the learned counsel appearing in the case and not resolved as a result of the dispute arising in the matter. Hence, the question of exemption granted under section 8A being attracted to a levy under section 6-B was not really in issue nor decided in that case. Hence, the observations in the passage relied upon by the learned counsel for the State do not in any way assist him. In Shantilal & Brothers v. State of Karnataka [1985] 59 STC 178 at page 183 a Division Bench of this Court while considering the constitutional validity of section 6-B, after noticing the difference between the section as it was originally enacted and subsequently amended by Karnataka Act 13 of 1982, observed as follows :
'The second proviso declares that the exemptions given under clauses (i) to (vii) of the first proviso are exhaustive and no other deduction shall be made from the total turnover of a dealer.',
and therefore contended that no other exemption is permissible under the Act except in the manner as provided in section 6-B itself. But what was considered in the case was only the effect of the second proviso and not the effect of section 8-A at all.
7. In B. P. Automobiles' case : 1983(2)KarLJ105 and Shantilal & Brothers' case : 1984(1)KarLJ69 the court was concerned with the ascertainment of turnover which attracts tax under section 6-B and exclusion or deduction under the proviso to sub-section (1) of section 6-B of the Act. In calculating that turnover, deductions will have to be given to those specific items mentioned in clauses (i) to (vii) in the first proviso and no other. It does not carry the matter any further nor does it whittle down the power of the State to grant exemptions under section 8A of the Act. What the second proviso to section 6-B refers to and deals with, as stated earlier, is only the mode or method of ascertaining the turnover for the purpose of levy of tax under section 6-B and not whether any exemption could be granted under section 8-A of the Act. What really falls for consideration in these cases is the scope of section 8A and the notification issued thereunder.
8. Under section 8-A of the Act the State has power to exempt or reduce rate of tax payable on any item under the Act. Section 2(1)(u) of the Act defines the word 'tax' to mean a tax leviable under the provisions of the Act. By definition, therefore, the tax levied under section 6-B is also a tax levied under the provisions of the Act. The expression 'tax' levied under section 6-B is also covered by section 8A of the Act and could be exempted under section 8A of the Act. In fact the legislature itself understood the matter in that manner, is clear. Between 8th May, 1975 and 1st April, 1984 an explanation had been added to section 8A of the Act. That explanation reads as follows :
'For the purpose of sub-section (3-A) the expression 'tax' does not include the tax payable under section 6-B.'
If really the expression 'tax' covered by section 8A of the Act had not taken within its sweep a tax covered by section 6-B there was no need for this explanation at all. On the other hand, the legislature having understood that the tax under section 8A also covered a tax levied under section 6-B of the Act, the explanation became necessary. But the explanation was confined to only one sub-section and not to the entire section. The notification in question that has been issued is only under section 8-A(1) of the Act and, therefore, the explanation though had no effect upon the notification issued, it has a bearing on the interpretation of the section. Therefore, both on the ground that section 2(1)(u) of the Act defines the word 'tax' in a comprehensive manner to include turnover tax levied under section 6-B of the Act and the explanation referred to above makes the matter further clear, it has to be understood that the tax referred to under section 8-A also covers a tax levied under section 6-B of the Act. Hence, the inference that has to be drawn on this discussion is that the State has power to exempt payment of tax under section 8A of the Act even in respect of tax covered by tax under section 6-B of the Act.
9. However, the learned counsel for the State contended that even though an explanation was added to sub-section (3-A) of section 8A to the Act it must not be read to cover the whole of section 8A inasmuch as what is dealt with under section 8-A(3-A) is only a matter relating to rate of tax and the expression used in the notification is also to rate of sales tax, therefore, though the notification was issued under section 8-A(1) of the Act it covers only taxes levied under sections 5 and 6 of the Act. I am unable to follow the logic of this argument. The exemption clause under section 8-A(1), provisions of sections 5 and 6 and 6-B of the Act having referred to certain rates, the expression 'rate of tax' has no particular significance. The question is what is really exempt under the notification The notification extracted above sets out clearly that the exemption is on the rate of tax payable under the Act on the sale of goods. Does it mean as contended by the learned counsel for the State that what is exempt is only the tax on the sale of goods and not the tax on the turnover of goods I have already held that in essence there is no difference between sales tax and turnover tax. The turnover tax is traceable to entry 54, List II of the Seventh Schedule to the Constitution, and is also a tax on the sale of goods. The notification cannot be read in the manner as suggested by the learned counsel for the State as exempting only tax payable on the sale or purchase of goods, but not turnover tax. As explained above, the second proviso to the section also does not come in the way of holding that this notification covers tax levied under section 6-B of the Act. Learned counsel for the State however contended that there is an essential difference between the types of tax levied under sections 5 and 6 and section 6-B of the Act inasmuch as the tax levied under the former provisions could be passed on to a buyer while the tax under section 6-B cannot be passed on to a buyer. Undoubtedly, the argument is based upon the provisions of the Act, but it ignores the aspect that there is no prohibition to pass the increased liability of the seller by way of price though not by way of tax. Thus there is no substance in this contention urged by the learned counsel for the State.
10. A reading of the notification clearly discloses that the types of goods that the Government intends to grant exemption on the rate of tax payable under the Act are (i) cattle, (ii) student note-books and aids of students, (iii) hearing aids, (iv) manure, (v) agricultural implements, (vi) cocoanut husk and (vii) pamphlets and publicity materials of World Wildlife Fund of India. These items covered under the Schedule to this notification are all items of common use either by agriculturists or students or invalids and the State does not intend to tax an item like husk nor does it want to come in the way of educating the public on wildlife. Even a bare reading of the several items mentioned in the schedule clearly discloses the intention of the Government not to increase the burden of tax be it in the nature of sale or purchase tax or turnover tax. Therefore, I am clearly of the view on a proper construction of the notification, that the intention of the Government was to exempt the turnover tax as well.
11. There is one other argument to which I have to refer. The learned counsel for the State while tracing the legislative history of the exemption granted to student note-books stated that originally a notification had been issued dated 28/30th March, 1976 by which the student note-books and other aids of students were exempt from tax which was in exercise of the powers under section 8A of the Act. Later on by Act 23 of 1983 these items were taken to entry 42-B, List II of the Fifth Schedule, which was effective between 1st April, 1982 and 31st August, 1982. It was omitted with effect from 1st September, 1982. On that day a notification, to which a reference has already been made, was issued. On this legislative history the learned counsel for the State contended that while originally the items referred at item 2 in the Schedule to the notification were matters covered by entry 42-B of the Fifth Schedule to the Act, indeed clause (1) to the first proviso to section 6-B(1) would be applicable, because the intention to omit the items from the Fifth Schedule was to bring them to tax for the purpose of section 6-B while exempting it in respect of other tax under the Act. We do not know whether that is the intention of the State at all on this aspect. However, such an interpretation is not capable of standing close scrutiny because mere omission from the Fifth Schedule to the Act does not mean that the Government has no power to exempt from tax under section 8-A of the Act. When once it is clear that it has exempted under section 8-A of the Act unless the wording in the notification itself give negative indication it will have to be held that the exemption covers even tax levied under section 6-B. Moreover there is greater flexibility in matters of grant of exemption under section 8A than under section 8 of the Act and in matters of fiscal policy if exemption under one provision is removed it does not mean it is not covered by another provision. Therefore, all the contentions raised on behalf of the State fail. In the light of this discussion the clarification issued by the Commissioner is plainly wrong. I uphold the contention raised on behalf of the petitioner. The impugned notices seeking to reopen the assessments that had been completed on the ground that what is exempt in the notification is only the rate of sales tax and not the turnover tax under section 6-B of the Act are quashed. Petitions allowed, rule made absolute.
12. Petitions allowed.