SIMHAPURI VANIJYA MANDALI Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THIS writ petition has been filed to issue a writ of prohibition or any other appropriate writ, order or direction inter-dicting the respondents from recovering from the petitioners the stamp duty and penalty on the alleged affidavits filed by the petitioners in the place of "pattis" as provided under rule 17-A (c) of the Rules under the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as "the Act") by declaring the same as illegal, improper and without jurisdiction. The petition was filed against (1) the Commercial Tax Officer, Nellore (East), Nellore, (2) the Deputy Commercial Tax Officer, Nellore (East), Nellore, (3) Regional Inspecting Officer (Stamps), Kurnool, and (4) the State of Andhra Pradesh. The first petitioner is a registered association of merchants of Nellore. The other petitioners are dealers registered under the Act and they were carrying on business in various commodities. They were also doing business as commission agents selling the goods on behalf of their principals. The petitioners as commission agents paid sales tax on the transactions effected by them on behalf of their principals as required under section 11 of the Act. With regard to the transactions on which tax was paid by the commission agents, the principals would not be liable further to pay tax with regard to the same transactions once again and can claim exemption. For the purpose of claiming exemption under rule 17-A (c) of the Rules under the Act, the principals were required to file "pattis" (statement of accounts) issued by the commission agents certifying that they have paid the tax on the transactions effected by them for and on behalf of the principals. Rule 17-A (c) reads as follows :

(2.) THE petitioners 2 to 27 who were involved in such transactions as commission agents and paid tax on those transactions as provided under section 11 of the Act issued "pattis" to their principals as provided under rule 17-A (c) in the form of affidavits. The principals in the course of their assessment proceedings filed those affidavits before the Commercial Tax Officer, Nellore, and it appears, the Commercial Tax Officer acted on those affidavits in making the assessments of the principals. The "pattis" in the form of affidavits were filed before the Commercial Tax Officer prior to the year 1965. Subsequently, in February, 1968, the third respondent issued notices to the petitioners calling upon them to take notice that the "pattis" filed by them were affidavits falling under article 4 of Schedule I-A of the Indian Stamp Act chargeable with a stamp duty of Rs. 3 and to take notice that as they were not stamped as required, they required adjudication under the provisions of the Indian Stamp Act. It was also mentioned in the said notices that a provisional conclusion was arrived at that the documents were deficitly stamped and the deficit stamp duty and penalty are recoverable from them. The objections filed by the petitioners to the notices were rejected by the third respondent and orders were passed by him adjudicating that the documents are affidavits and that they were not stamped as required and as such deficit stamp duty should be paid with penalty thereon in each case and requested the 1st and 2nd respondents to collect the same if necessary by resorting to proceedings under the Revenue Recovery Act. It is under these circumstances the writ petition has been filed.

(3.) IT cannot be doubted that the documents in question, namely, the pattis", mentioning the statements of accounts with regard to the sale transactions entered into by the petitioners on behalf of their principals were given as affidavits. A perusal of the documents would show that the information was given adopting the form of an affidavit, namely, the information given was solemnly affirmed and it was duly attested by persons authorised by law to attest affidavits. The learned counsel for the petitioners has argued that as per the rules under the A. P. G. S. T. Act, what is required to be filed by the principals to claim exemption is only statements of accounts generally called "pattis" from their agents with a certificate that the tax due on the transactions effected by the agents on behalf of the principals has been paid by them and the rules do not require the filing of any affidavits by the agents and, therefore, though the "pattis" have been given by the petitioners in the form of affidavits they cannot be treated as affidavits for the purpose of levying the stamp duty. It is true that a perusal of the relevant rules would show that they do not require the filing of "pattis" in the form of affidavits. What is required is only a certificate from the agents mentioning that the sales tax due on the transactions has been paid by them. But that is besides the point. It may be that under the rules, the agents were not obliged to furnish "pattis" in the form of affidavits. But when the "pattis" in the form of affidavits were filed even though at the instance of the Commercial Taxes Department, none the less they would be affidavits and if they are affidavits, as provided under article 4 of Schedule I-A of the Stamp Act, they are liable to stamp duty of Rs. 3. The point is not whether particular information or declaration is to be given under law by means of an affidavit or not but whether the document in which it was given is an affidavit or not. For the purposes of the Stamp Act one has to look into only the contents of a document to find out its nature and whether it would be liable to any stamp duty or not and if so, to what stamp duty. It is not necessary to go into the fact, for what purpose the document was executed and whether the purpose for which the document came to be executed required the execution of a document or not or whether it requires the document in that form or not. As already stated above, the documents in question were given in the form of affidavits and they are affidavits. If that is so, irrespective of anything else they are liable to stamp duty as provided under article 4 of Schedule I-A of the Stamp Act. All the documents in question were executed by the petitioners prior to the year 1965. It was alleged in the petition that the affidavits were exempted from stamp duty till 3rd December, 1965, until Act 26 of 1965 came into force and even after that by virtue of G. O. Ms. No. 604 dated 26th June, 1967, (Andhra Pradesh Government) stamp duty was not payable on affidavits. At the time of the arguments on verification this contention was not pressed. It was found that on the dates the documents were executed, the affidavits of the nature in question were liable to stamp duty as provided under article 4 of Schedule I-A of the Stamp Act. Under these circumstances, it is clear that the documents in question were liable to stamp duty and they were executed without payment of any stamp duty. Therefore, normally the liability to pay stamp duty and penalty would be attracted as provided under section 33 of the Stamp Act.