GOVINDRAM RAMPRASAD Vs. ASSESSING AUTHORITY SALES TAX

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India for a writ against the Sales Tax Department. The petitioner Messrs. Govindram Ramprasad is a registered partnership firm carrying on the business of selling petroleum products and kerosene at Indore. In the year 1952-53, the petitioner purchased from the bombay office of the Burmah Shell Oil Storage and Distributing Company of India, ltd. , 5306 packed and sealed tins of kerosene. These tins were admittedly sold by the petitioner to its customers in the original packing. At first the Sales Tax Department did not include in the turnover of the petitioner the price realised from the sale of the tins because kerosene was not a taxable commodity within the meaning of the Act. Later, however, in 1956 a notice was served on the petitioner under Section 10 of the Madhya Bharat Sales Tax Act informing it that a certain portion of its turnover for the year 1952-53 had escaped assessment and that the assessment was to be revised. The petitioner thereupon produced its books for the inspection of the Department and on 29-3-1956 the case was heard. The petitioner averred that for a period of three months it heard nothing in the matter in spite of reminders issued by it. On 5-9-1956 it deposited some amount for a copy of the order which might have been passed. A copy was issued to the petitioner on 6th September, 1956 purporting to be an order made on 29th" March, 1956, and with that was sent a notice of demand for rs. 259-1-6. The petitioner's case is that the tax on the so-called sale of the tins of kerosene (though kerosene was exempt) is not proper and it asks us to issue a writ or writs to prohibit the taxing authorities from levying the tax. It also asks that the assessment made on it, be quashed.

(2.) THE petitioner avers that the assessment order which is said to have been passed on 29th March, 1956, was not brought to its notice. The Department in its reply has said that the shop of the petitioner was found closed and the notice was affixed to the house of the petitioner on 31st March, 1956. Nothing much turns upon this except in one way. The petitioner does not contend that the order has been antedated or that it was not passed within three years' period of grace allowed under Section 10 of the Act. It contends that the assessment is not complete till the assessment order is brought to the notice of the assessee. It contends, therefore, that for the purposes of Section 10 not only the assessment order should be passed within the period indicated in that section, but it should be brought to the notice of the assessee also within the said period.

(3.) THE petitioner contends that the sale which takes place is of kerosene, which is an exempted commodity, and the tin is merely a packing or a container for the delivery of kerosene to the purchaser. It submits that the petitioner receives these packed and sealed tins from the Head Officer of the Burmah Shell and delivers them in the same state to the customers without doing anything or putting them in any containers. It, therefore, contends that these tins are not liable to tax even though under the notification issued by the Government on 30th April, 1950, articles made of metals other than gold and silver are liable to sales tax. The petitioner lastly contends that on a proper construction of the relevant sections of the Act, the tax cannot be levied upon such containers and that the Department has erred in thinking that the containers divorced from the exempted commodity can be so taxed.