VISHNU TRADING COMPANY Vs. ASST COMMISSIONER

JUDGEMENT

(1.) The short but interesting question arises for consideration in this original petition is whether the petitioner, a dealer, is entitled to get delivery note from the statutory authority for transport of goods in book form. The supply of delivery notes in blank form are denied to the petitioners on the ground that it may lead to tax evasion. The department feels on each occasion single delivery note should be given and if that procedure is adopted there will be an effective check on the dealer from evading tax. In view of this, the respondents are not issuing delivery note to the petitioner for transport of goods.

(2.) The petitioner is dealer in spices and it purchases spices from different places within the State. The petitioner's registered office is at Mattancherry, "Cochin. The petitioner has to transport the goods purchased to its registered office or head office at Mattancherry. While transporting the goods the petitioner has to pass through several check posts within the State. To pass through the check post delivery notes will have to be shown to the officers in charge of the check posts. There are several check posts within the State and the goods have to be purchased at different places. The goods have to be transported on each occasion after purchasing and loading and if the petitioner or its agents have to rush to the respondents to get delivery note before transport, it will create innumerable difficulties and hardship and operate as an impediment in transporting the goods of the petitioner. The petitioner has aright to transport the goods and it has a fundamental right to carry on the business or trade. Reasonable restriction can no doubt be imposed and the question to be considered is whether the demand of the respondents or the insistence of the respondents to get delivery note on each occasion after loading goods in the lorry is justified. In short the question is whether the petitioner is entitled to get blank delivery notes in book form. I am not concerned with the expediency or the advisability of the procedure in the light of the intention of the respondents to check evasion of tax. I am only concerned with the legality of the action. Judicial audit of administrative action is the responsibility of this Court. With this purpose in mind, I looked into the relevant provisions in the Act.

(3.) S.29 of the Kerala General Sales Tax Act, 1963 provides that if the Government considers that with a view to prevent or check evasion of tax under the Act in any place or places in the State it is necessary so to do they may by notification in the Gazette, direct setting up of check posts at such place or places, and define the boundaries of such check posts and notify the area of the check posts included within such boundaries, referred to as the notified, area, and demarcate such boundaries by means of barriers or otherwise for the purpose of regulating the passage of goods across the notified area. S.29 further provides that no person shall transport within the State across or beyond the notified area any consignment of goods exceeding such quantity or value as may be prescribed by any vehicle or vessel unless he is in possession of (omitting unnecessary parts) a delivery note and a declaration in the prescribed form containing such particulars. Therefore, if the petitioner intends to purchase spices and transport the same to its godown within the State, no tax liability is attracted at that stage as spices are taxable only at the last purchase point in the State. To transport the goods the petitioner must have a delivery note and a declaration. S.57 of the Kerala General Sales Tax Act is the rule making power. S.57(2)(a), (f), (i), and (o) are extracted hereunder: