Srinivasa and Co. Vs. Commercial Tax Officer - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - if, for any reasons, the whole or any part of the turnover of business of a dealer has escaped assessment to tax or has been under-assessed in any year, the assessing authority may after issuing a notice to the dealer and after making such inquiry as he considers necessary determine to the best of his judgment the correct turnover, and assess the tax payable on such turnover--(a) within a period of six years from the expiry of the year to which the tax relates, if any such event has occurred on account of the failure of the dealer to disclose the turnover or any other particulars correctly; 4. sub-clause (a) enables the officer to make reassessment within a period of six years if the escapement of assessment is on account of the failure of the dealer to disclose the turnover or any other particulars correctly. but if a turnover has escaped assessment due to causes other than the failure of the assessee to disclose the turnover or other particulars correctly, the assessment of the turnover which has escaped the assessment to tax has to be made within a period of four years from the expiry of the year to which the tax relates. 6. on the other hand, it is contended by sri sardar ali khan, the learned government pleader, that the petitioner failed to file a return in respect of the said turnover which is liable to be taxed under the central sales tax act and, therefore, it should be held that there is no disclosure of the turnover under the central sales tax act. therefore, it cannot be said that there was any failure on the part of the petitioner to disclose the turnover or any other particulars. so it is a case where the turnover has escaped the assessment not on account of any failure on the part of the petitioner to disclose the turnover or any other particulars correctly, but on account of a change of opinion of the assessing authority with regard to the character of the said sales. , before 31st march, 1974. as the impugned notice has been issued beyond four years, it is clearly barred by limitation and the respondent has no jurisdiction to issue the said notice.ramachandra rao, j.1. this is a petition filed under article 227 of the constitution of india against the notice dated 5th february, 1976, issued by the respondent, the commercial tax officer, ongole, under rule 14-a of the central sales tax (andhra pradesh) rules (hereinafter called the rules), proposing to assess the petitioner on a net turnover of rs. 5,32,899.60 for the year 1969-70 under the central sales tax act, and calling upon it to file its objections against the proposed assessment.2. the main ground on which the notice is attacked is that it is barred by limitation under rule 14-a(8)(b) of the rules.3. the brief facts relevant for the purposes of deciding the said question are as follows:the petitioner is a registered firm carrying on business in ghee, which is taxable at the last purchase point under the andhra pradesh general sales tax act, 1957. for the assessment year 1969-70, the petitioner was assessed to sales tax under the act on 12th december, 1970, on the last purchase of ghee, to the extent of rs. 47,46,190. the deputy commissioner of commercial taxes issued notice on 31st october, 1974, to the petitioner proposing to assess the turnover of rs. 5,32,900 under the central sales tax act. challenging the said notice, the petitioner filed a writ petition, w.p. no. 6644 of 1974, in this court contending that the deputy commissioner had no jurisdiction to assess the turnover under rule 14-a(11) of the rules beyond four years from the end of the assessment year, i.e., after 31st march, 1974. accepting the said contention, this court allowed the writ petition and quashed the notice by an order dated 18th july, 1975. it was however observed by this court that the order would not preclude the assessing authority from proceeding to take action under rule 14-a(4) of the rules. subsequently, the impugned notice was issued by the respondent. hence the revision petition.rule 14-a(8) of the rules reads as follows:if, for any reasons, the whole or any part of the turnover of business of a dealer has escaped assessment to tax or has been under-assessed in any year, the assessing authority may after issuing a notice to the dealer and after making such inquiry as he considers necessary determine to the best of his judgment the correct turnover, and assess the tax payable on such turnover-- (a) within a period of six years from the expiry of the year to which the tax relates, if any such event has occurred on account of the failure of the dealer to disclose the turnover or any other particulars correctly;(b) within a period of four years from the expiry of the year to which the tax relates, if any such event has occurred due to any other causes. 4. sub-clause (a) enables the officer to make reassessment within a period of six years if the escapement of assessment is on account of the failure of the dealer to disclose the turnover or any other particulars correctly. but if a turnover has escaped assessment due to causes other than the failure of the assessee to disclose the turnover or other particulars correctly, the assessment of the turnover which has escaped the assessment to tax has to be made within a period of four years from the expiry of the year to which the tax relates.5. in the instant case, the contention of the petitioner is that it had fully disclosed the turnover of rs. 5,32,900 as sales made to non-resident dealers who took delivery of the goods at ongole within the state and the commercial tax officer accepted the same and held that the said turnover was not liable to be taxed as the petitioner was not the last purchaser within the state.6. on the other hand, it is contended by sri sardar ali khan, the learned government pleader, that the petitioner failed to file a return in respect of the said turnover which is liable to be taxed under the central sales tax act and, therefore, it should be held that there is no disclosure of the turnover under the central sales tax act.7. i cannot accept this submission. it is not disputed that the turnover of rs. 5,32,900 was disclosed in the return filed by the petitioner under the andhra pradesh general sales tax act for the assessment year 1969-70 and it is also indicated in the return that the said turnover represents sales made to nonresident dealers who took delivery of the same within the state at ongole. therefore, it cannot be said that there was any failure on the part of the petitioner to disclose the turnover or any other particulars. the commercial tax officer who made the assessment accepted the sales as intra-state sales within the state of andhra pradesh and held the turnover not liable to be taxed either under the state act or the central act. now the impugned notice is issued by the same commercial tax officer taking a different view that the sales represented by the said turnover of rs. 5,32,900 are inter-state sales liable to be taxed under the central act. so it is a case where the turnover has escaped the assessment not on account of any failure on the part of the petitioner to disclose the turnover or any other particulars correctly, but on account of a change of opinion of the assessing authority with regard to the character of the said sales. therefore, the case is governed by the provisions of rule 14-a(8)(b) of the rules, in which case, reassessment has to be made within a period of four years, i.e., before 31st march, 1974. as the impugned notice has been issued beyond four years, it is clearly barred by limitation and the respondent has no jurisdiction to issue the said notice.8. it is contended by the learned government pleader that revision is not maintainable under article 227 of the constitution on the ground that the commercial tax officer is not a tribunal.9. i do not think, there is any merit in this submission. the commercial tax officer, in making assessment under the sales tax laws, exercises quasi-judicial functions and determines the rights of the parties and hence he is a tribunal and is amenable to the jurisdiction under article 227 of the constitution.10. it is next contended by the learned government pleader that the petitioner has an alternative remedy by way of appeal against the order making reassessment.11. the contention of the petitioner is that the impugned notice issued by the respondent is wholly devoid of jurisdiction and this contention has been upheld by me. therefore, when the notice proposing to make reassessment is found to be devoid of jurisdiction, i do not think the petitioner can be denied relief under article 227 of the constitution on the ground that it has an alternative remedy against the final order making reassessment.12. next it is contended that disputed questions of fact cannot be decided in a revision petition, and that the petitioner has to submit its explanation and representations in answer to the impugned notice and thereafter the respondent should investigate the facts and decide the matter.13. i do not think in the circumstances of the present case, it can be said that the question of jurisdiction raised by the petitioner involves any further investigation into the facts. on the other hand, on the facts admitted and which do not require any further proof or investigation, it is found that the impugned notice by the respondent is beyond the period of limitation prescribed by the relevant rule and, therefore, it is devoid of jurisdiction.14. in the result, the revision petition is allowed with costs and the impugned notice is set aside.