SARDAR MALL SHIVDAYAL Vs. COMMISSIONER OF TAXES

JUDGEMENT

(1.) THIS is an application under article 226 of the Constitution of India questioning the legality and validity of the office memorandum bearing No. CTS-17/93/36 dated Guwahati, the 29th July, 1994 issued by the Commissioner of Taxes, Assam, Guwahati to all the Superintendent of Taxes. The Assam General Sales Tax (Amendment) Act, 1994 (Assam Act. 22 of 1994) published in the Assam Gazette, Extraordinary No. 57 dated May 6, 1994. By the above amendment the words "and charged to tax at the rate, if any, applicable to such goods" which appears at the end of the explanation shall be deleted. In section 2, in clause (34), in sub-clause (d) and also the word "state" wherever it occurred stood deleted. In section 27 of sub-section (1), in clause (b) and some other clauses of section 35 stood deleted. The Commissioner accordingly instructed all the Superintendent of Taxes regarding deletion of the above section and clauses which reads as follows :

(2.) MR . G. N. Sahewalla, the learned counsel for the petitioner, has submitted that Legislature in its wisdom amended some of the provisions of the Act including Explanation 2 of section 2 (34), sub-clause (d ). Mr. Sahewalla, the learned counsel for the petitioner submitted that amendment did not include containers or packing materials to be taxed which are in fact not sold to the buyers. The petitioners was selling goods which were exempted from sales tax and therefore the containers were not sold they also cannot be taxed. Mr. Sahewalla, the learned counsel submitted that the amended clause did not empower the assessing authority to tax on the containers which are not sold. However, when the containers those are sold to the buyers are chargeable to tax and the Explanation 2 added to sub-section (34) of section 2 eliminate the doubt. Whether in fact a sale has taken place or not are to be determined on the evaluation of the fact by the assessing authority. The guideline issued by the Commissioner was strictly in conformity with the amended clause. The Commissioner, in clear term stated that there is no bar for levying tax in respect of containers sold with the exempted goods where the containers are also sold with the exempted goods whether in fact sale took place or not is a pure question of fact which is to be determined by the authority on the basis of the facts. The Commissioner directed the Superintendent to proceed to levy tax accordingly and apply its mind on its merit and dispose of the matter. Apparently no infirmity can be found in the instruction. The assessing authority is to make assessment strictly in terms of the provision contained in the Act. Subject to the observation made above the writ petition stands disposed.