N SAMI IYER Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is a dealer in tobacco. THE controversy relates to 1957-58 and a turnover of Rs. 7,757-54.

(2.) THE turnover represents the purchases made by the petitioner between 1st April, 1957, and 30th September, 1957, and the sales effected by him between 1st October, 1957, and 13th December, 1957. During the period of the purchase 1st April, 1957, to 30th September, 1957, the petitioner was governed by the Madras General Sales Tax Act, 1939. Section 3(5) of that Act provided : "THE taxes under sub-sections (1), (1-A) and 2 shall be assessed, levied and collected in such manner and in such instalments, if any, as may be prescribed : Provided that - (i) in respect of the same transaction of sale, the buyer or the seller, but not both, as determined by such rules as may be prescribed, shall be taxed; (ii) where a dealer has been taxed in respect of the purchase of any goods in accordance with the rules referred to in clause (i) of this proviso, he shall not be taxed again in respect of any sale of such goods effected by him." It is common ground that tobacco was taxable at the purchase point under the Madras Act and that the petitioner has paid the tax due on his purchases between 1st April, 1957, and 30th September, 1957.

(3.) IN exercise of the powers conferred by section 5(vii) the Government issued a notification, No. H1-10674/57/RD-2 dated 28th September, 1957. The relevant portion of the notification reads as follows : "IN exercise of the powers conferred by clause (vii) of section 5 of the General Sales Tax Act (Act XI of 1125), the Government of Kerala hereby specify the point mentioned in column 3 of the Schedule, hereto appended as the point liable to tax under section 3(i) on the goods mentioned in column 2. Schedule. ------------------------------------------------------------------- Sl. No. Description of goods. Taxable point. ------------------------------------------------------------------- (1) (2) (3) ------------------------------------------------------------------- 2. Tobacco other than beedi tobacco, 1st sale in the State (suka). by a dealer who is not exempt from taxation under section 3(3)." ------------------------------------------------------------------- It is clear from the notification that it changed the taxable point in respect of tobacco from the first purchase in the State under the Madras Act to the first sale in the State. The contention of the Department which has been accepted by the Appellate Tribunal is that the State is entitled to realise tax at the sale point from the petitioner in respect of his sales between 1st October, 1957, and 13th December, 1957, even though he had paid tax at the purchase point at the time of his purchase under the Madras General Sales Tax Act, 1939. The Appellate Tribunal dealt with the matter as follows in paragraph 7 of its order dated 16th February, 1960 : "Regarding the fourth claim we find that the appellant's contention is that the sales turnover of Rs. 7,757-54 after 1st October, 1957, relates to the tobacco bought on own account and taxed and included in the turnover of Rs. 17,007-46. As the purchase has been taxed the sales of the same cannot be taxed in his own hands. But it has to be remembered that the tax on the purchase was levied under the Madras General Sales Tax Act and the tax on the sales is levied under the General Sales Tax Act. Even though the purchases and sales of the same commodity are taxed by the same State in the same hand, yet they are so taxed under two different Acts and therefore the relief claimed does not appear to be allowable. Hence the fourth claim is disallowed."