THANSINGH NATHMAL ONKARMAL JAWALAPRASAD INDRACHAND PREMSUCH RAMDEO SATYANARAYAN INDRACHAND PREMSUCH SHEWPRATAP TANTIA Vs. SUPERINTENDENT OF TAXES DHUBRIIN ALL APPEALS :SUPERINTENDENT OF TAXES DHUBRIIN ALL APPEALS :SUPERINTENDENT OF TAXES DHUBRIIN ALL APPEALS :SUPERINTENDENT OF TAXES DHUBRIIN

JUDGEMENT

(1.) These appeals have been filed with certificates granted by the High Court of Assam under Art. 132 of the Constitution against orders passed in certain petition filed by the appellants praying for writs of certiorari or other appropriate writs quashing orders relating to assessment of sales-tax, and prohibiting the Superintendent of Taxes, Dhubri and other officers from taking action in enforcement of the said orders. The appeals raise common questions and may be disposed of by a common judgment.

(2.) The appellants are merchants carrying on business as dealers in jute, and have their principal place of business at Calcutta. The appellants have a branch office at Dhubri in the State of Assam and are registered dealers under the Assam Sales Tax Act, 1947 (17 of 1947). The appellants purchased jute at Dhubri and other places in the State of Assam and despatched bales of jute to diverse factories outside the Province of Assam. The appellants submitted returns of turnover for purposes of sales-tax before the Superintendent of Taxes, Dhubri, under the Assam Sales Tax Act in respect of transactions of sale during the period between March 1948 to March 1950. The Superintendent of Taxes called upon the appellants under S. 17(2) of the Act to produce their books of account and other evidence in support of their returns and granted them time to enable them to comply with the requisition, but the appellants failed to do so. The superintendent of Taxes then made "best judgment assessment" exercising his powers under S. 17(4) of the Act and issued demand notices for the tax determined. Against the orders passed by the Superintendent of Taxes appeals were preferred to the Assistant Commissioner of Taxes. Before the appellate authority the appellants produced some but not all their books of account and documents in support of their returns. Before the appellate authority it was contended, inter alia, that the definition of "sale" in S. 2(12) of the Act was beyond the legislative competence of the Provincial Legislature, that tax was sought to be levied on sales effected outside the State, and that imposition of sales tax on the transaction of the appellant amounted to levying an "export tax" which was not open to the Provincial Legislature. It was however not contended before the Assistant Commissioner of Taxes that the jute bales, sale price of which was included in the turnover were not at the time of the contracts in the form of jute bales actually within the State of Assam and therefore the Explanation to S. 2(12) did not make that sale price liable to be included in the turnover of the appellants. Assistant Commissioner of taxes, Assam, dismissed the appeals.

(3.) In the revision applications preferred to the Commissioner of Taxes, Assam against the order of the Assistant Commissioner of Taxes it was contended for the first time that the price of jute included in the turnover under the orders passed by the Superintendent of Taxes was not liable to be taxed because within the meaning of the Explanation to S. 2(12) the goods were not at the time of the contracts actually in the Province of Assam. The Commissioner rejected the contention after examining what he called the "time-table of cultivation". He observed that the usual time for marketing jute of the new crop was between July and June of the following year, jute being planted in or about February and being ready for marketing some time about the month of June. The Commissioner further observed that the contracts were made on diverse dates between March and September and deliveries under the contracts were made after the month of July when the new crop was brought into the market. The contracts between the months of March and July were therefore in respect of the last year's crop and the goods sold must actually have been in the Province of Assam at the date of the contracts. The Commissioner made certain modifications in the assessment order, but with those modifications we are not concerned in these appeals.