Full Judgment
D.K. Mahajan , J.
1. This order will dispose of General Sales Tax References Nos. 2 and 3 of 1973. The assessee is Messrs. Dev Datt Shastri, Jullundur, in both the references. They have arisen in the following circumstances.
2. The assessee is engaged in the business of sale of magic rings, magic cameras, magic hair-oil, magic scent, etc. In addition to this, the assessee also engages in the business of astrology and makes money by reading his clients' fortunes. For the assessment, year 1962-63, proceedings were taken under the Central Sales Tax Act and the Punjab General Sales Tax Act to bring the turnover of the assessee to tax. The department made assessment for the aforesaid assessment year on the best judgment basis. As the assessee had failed to apply for registration, a penalty of Rs. 100 under Section 11(6) of the Punjab General Sales Tax Act, 1948, was imposed. The assessee was also levied tax under the Central Sales Tax Act for the inter-State sales made by him. The assessee's case was that he was not a dealer and was not engaged in the sale of goods and that his main business was astrology and selling charmed articles, the price of which was considerably out of proportion to the market value of those articles. The stand of the assessee was rejected by the departmental authorities right up to the Sales Tax Tribunal and this is what the Tribunal observed :
The facts of the case are not very clear except that the petitioner has been selling small things like rings, tiny pistols, tiny scent bottles, tiny watches, which are cheap toy articles for children, etc., for a heavy price on the plea that they have been endowed by him with magical efficacy by his having recited some mantras over them and the quantum of the sales and his turnover is considerable. He has been buying these articles very cheap and selling them at comparatively very high prices.
3. The assessee was dissatisfied with the order of the Tribunal both in the matter of the Punjab General Sales Tax Act as well as the Central Sales Tax Act and moved two applications under Section 22(1) of the Punjab General Sales Tax Act requiring the Tribunal to refer three questions of law for our opinion. These applications were rejected by the Tribunal on the ground that out of its order no question of law arose. The assessee then moved this Court under Section 22(2) of the Punjab General Sales Tax Act and this Court referred the following question of law in both the applications, with the difference that in one case the question of law pertained to the Punjab General Sales Tax Act and in the other to the Central Sales Tax Act:
Whether, on the facts and in the circumstances of the case, the supply of charmed articles by the assessee amounts to a sale and whether by reason of such supply the assessee is a dealer within the meaning of the expression in the Central Sales Tax Act, 1956.
4. As the answer to this question depends on the interpretation of the phrases 'goods' and 'dealer', we are disposing of the two references by a single judgment. In fact, the matter is not res integra and has been dealt with by the Bombay High Court In Commissioner of Sales Tax v. Messrs. Habibulla Saheb [1968] 22 S.T.C. 219. The facts of the present case and those that were before the Bombay High Court are almost similar. In Habibulla's case [1968] 22 S.T.C. 219, it has been held 'that as it was admitted that the assessee was charging only for the spiritual services rendered when she was disposing of the charmed tawiz to her customers, it could not be said that the transaction was a sale of the charmed tawiz as a chattel'. Mr. D.N. Rampal, learned Counsel for the State, tried to distinguish this case on the basis that the assessee was not selling tawiz and thus was not rendering spiritual services. On the facts of the case before us, this is not so. The assessee is reciting mantras so as to transmit the spiritual element into material goods. The price charged is not the price of the material goods. The price charged has no proportion to the price of the goods sold. Thus, the price charged is in fact price for the spiritual efficacy of the material goods. In other words, the sale is of spiritual services through the medium of material goods. Therefore, in fact, what he is selling is not the article but his competency or ability to charm that article with some magical properties. To put in the words of the Bombay case, the assessee is really selling his services as a magician or as a spiritual person. We see no distinction between the facts of the present case and that of the case before the Bombay High Court. In our opinion, the decision in Habibulla's case [1968] 22 S.T.C. 219 covers the present case.
5. For the reasons recorded, we answer the questions referred to us in the negative, i.e., in favour of the assessee and against the department. However, there will be no order as to costs in any one of the references.
C.G. Suri, J.
I agree.