NEMICHAND PARASMAL AND COMPANY Vs. DEPUTY COMMERCIAL TAX OFFICER EVENING BAZAAR ASSESSMENT CIRCLE MADRAS

JUDGEMENT

(1.) Since the petitioner in the two tax case petitions and the appellant in the writ appeal are one and the same person and the points involved are also substantially the same, they are dealt with together.

(2.) The facts leading to the writ appeal may first be stated. The appellant is a dealer in sugar candy and confectionery. For the assessment year 1975-76, he has been assessed to sales tax on a total and taxable turnover of Rs. 6,42,507.91 and Rs. 7,364.79 respectively on the basis of the return furnished by him. In the said assessment, the local sales of sugar candy for the period 2nd April, 1975, to 31st March, 1976, amounting to Rs. 5,93,298.12 was excluded from the taxable turnover on the ground that sugar candy was not liable to sales tax under the Tamil Nadu General Sales Tax Act, and the balance turnover alone was held liable to tax. Subsequently, on 12th July, 1977, the assessing authority proposed to revise the assessment in exercise of its power under section 16 for bringing the sales turnover of sugar candy to tax at 3 per cent single point under item 9 of the Second Schedule to the Tamil Nadu General Sales Tax Act with effect from 7th July, 1975, on the ground that the said turnover had erroneouly been exempted from tax in the original assessment. The assessee was served with a notice to show cause why the revised assessment as proposed should not be made and the assessee filed his objections to the proposed revision of assessment. He submitted that according to the decision of this Court in Vasantha & Co. v. State of Madras [1963] 14 STC 696, "sugar" should be taken to include "sugar candy" and therefore the sugar candy which has been sold by the assessee should be taken as nothing but sugar and that as sugar has been exempted from the levy of sales tax under the provisions of the Act, sugar candy also should be exempted from the levy of tax. The assessing authority did not accept this contention put forward by the assessee and revised the assessment and brought the turnover of Rs. 4,49,777.12 relating to sales of sugar candy for the period from 7th July, 1975, to 31st March, 1976, to tax at the rate of 3 per cent.

(3.) At that stage, the appellant came forward with W.P. No. 3657 of 1977, out of which the writ appeal arises, questioning the amendments made to item 9 of the Second Schedule and item 5 of the Third Schedule to the Tamil Nadu General Sales Tax Act wherein the items like bura sugar, sugar candy and sugar candy honey had been excluded from the main item "sugar" with effect from 7th July, 1975. The case as put forward by the appellant in his writ petition is that the history of legislation relating to the levy of tax on sales of sugar would clearly show that the above amendments subjecting to sales tax the sales of sugar candy, etc., are beyond the legislative competence of the State Government and as such they are ultra vires the State Legislature, that under the Additional Duties of Excise (Goods of Special Importance) Act (58 of 1957) certain articles were brought within the purview of the additional excise duty, that the levy of additional excise duty on the goods covered by Act 58 of 1957 was passed on the recommendations of the Central Finance Commission, that wherever additional excise duties are levied on certain goods, the State Governments will not levy sales tax on those goods but will be entitled to seek for the contribution from the proceeds of the additional excise duty, that, in this case, the Central excise authorities are levying additional excise duty under Act 58 of 1957 on sugar candy and that, therefore, the State Government, in so far as it is getting its share of contribution from the proceeds of the additional excise duties levied by the Central Government, it has no power to impose sales tax on sugar candy and other articles referred to in item 9 of the Second Schedule. Thus, the only point that was urged in the writ petition was as to the validity of the amendments brought into item 9 of the Second Schedule and item 5 of the Third Schedule, which brought within the net of taxation, for the first time, items like sugar candy, bura sugar and sugar candy honey while retaining the exemption on sugar in the year 1975. Mohan, J., who heard the writ petition held that the levy of additional excise duty on sugar candy does not take away the power of the State Legislature to levy tax on the sales of sugar candy and therefore merely because the sugar candy had been subjected to levy of excise duty or the additional excise duty it cannot disable the State Legislature from bringing that item within the net of taxation. In that view the learned Judge has dismissed the writ petition as being devoid of any merit. The correctness of the order of Mohan, J., has been questioned in the writ appeal.