Indian Oil Corporation Ltd. vs State of Assam and Others

D. Biswas, J.—In this petition under Article 226 of the Constitution, M/s Indian Oil Corporation Limited has called in question the propriety and validity of the Notice No. 12666 dated 28.3.96 issued by the Senior Superintendent of Taxes, Guwahati directing the Petitioner-company to show cause as to why penal action as per provisions of Section 23G of the Assam General Sales Tax Act, 1993 (hereinafter referred to as the Act) would not be initiated against them for non-payment of taxes on resale of petroleum products within the State of Assam at a price exceeding 40% of the purchase price for the period beginning 1.7.93 till date.

Bereft of details, the Petitioner''s case is that it is a Public Limited Company incorporated under the Companies Act, 1956 and is registered as a dealer under the provisions of the Act. The Petitioner-Company purchased petroleum products from Bongaigaon Refinery and Petrochemicals Limited, hereinafter referred to as the B.R.P.L., on payment of sales tax as per the provisions of the Act. On the recommendation of the oil Prices Committee set up by the Government of India, Resolution No. P-20028/3/77-PPD(Vol. II) dated 16.12.1977 (Annexure-I) was adopted by the Government which requires a dealer to sell its products at the prices fixed by the Central Government and the prices so fixed by the Central Government includes surcharge to be collected from the buyer and deposited to the oil pool account. A dealer, therefore, has no alternative but to sell the products at the prices so fixed inclusive of surcharge and transfer the surcharge to the said oil pool account. The said amount of surcharge is not intended to augment the coffers of the Petitioner-company as it is specifically earmarked for the pool account and the Petitioner-company is entitled only to retain the basic price, the sales tax paid at the time of purchase of the products in Assam from B.R.P.L. and the profit margin specified by the Central Government. According to the Petitioner-company, the surcharge thus collected by a registered dealer on behalf of the oil pool committee cannot be computed to form part of the ''sale price'' so as to treat it as first point of sale within the meaning of Section 8(1) of the Act read with Rule 12 of the Assam General Sales Tax Rules, 1993.

Dr. A.K. Saraf, learned Counsel for the Petitioner-company, reiterating the above contention argued that the role played by the Petitioner-company in collecting the surcharge was that of a mere custodian and, as such, the Petitioner cannot be held liable for payment of sales tax on the said amount of surcharge. Expounding this standpoint, Dr. Saraf fiirther submitted that since the amount of surcharge was not to be retained by the Petitioner-Company by way of capital-gain, it can not be included in the ''sale price'' to construe it as first point of sale within the meaning of Section 8 of the Act and Rule 12 of the Rules. Dr. Saraf added that the resale price of the products, less the amount of surcharge, does not exceed the limit of 40 percent from its original purchase-price and, as such, it cannot be treated as fist point of sale, for the purpose of levying sales tax.

Shri N.M. Lahiri, learned senior Counsel appearing for the Respondents, however, contended that the provision of Section 8 of the Act makes it abundantly clear that the amount of surcharge has to be computed as a part of the resale-price as it has not been specifically excluded by the law, Shri Lahiri further argued that the amount of surcharge collected by the Petitioner-company for payment to the Government of India Pool account does not stand indemnified by any statutory provision and, as such, this amount has to be included within the meaning of sale-price as defined in Sub-section (34) of Section 2 of the Act. In addition, Mr. Lahiri further submitted that the instant writ petition by the Petitioner-company is also not maintainable as the Act provides efficacious alternative remedy by way of appeal revision.

It would emerge from the above submission that the Petitioner-company, a registered dealer, purchased items of petroleum products from the B.R.P.L. on payment of sales tax for the purpose of resale within the State of Assam. The provisions of Section 8(1)(a) of the Act and that of Rule 12 of the Assam General Sales Tax Rules, 1993, mandate levy of sales tax on resale price of an item on such price exceeding 40 percent of the original purchase-price denoting it as the first point of sale within the State. In the instant case, the Petitioner-company admittedly sold the petroleum products to the buyers at a price inclusive of pennissible profit margin and the surcharge and thus the resale-price exceeded 40 percent of the origmal purchase-price. Apparently, the resale price became taxable as provided in Section 8 and Rule 12 referred to above. In order to further appreciate the situation, we may avert to the detoti on of sale price mcorporated in Sub-section (34) of Section 2 of the Act. For the purpose of this case, the relevant part of the said Sub-section is reproduced below:

(34) Sale Price means-

(a) ...

(b) ...

(c) ...

(d) In respect of sale under any other subclause of Clause (33) , the amount received or receivable by a dealer as valuable consideradon for the sale of goods including any sum charged, whether stated separately or not for anything done by the dealer in respect of the goods at the time of or before delivery thereof or undertaken to be done after the delivery whether under the contract of sale or under a separate contract but excluding....

(i) the cost of outward freight delivery, or installation or interest when such cost or interest is separately charged, subject to such conditions and restrictions as may be prescribed, and

(ii) any sum allowed as a cash discount according to ordinary trade practice;

Provided that in a case where there is no bill of sale or the sale bill is, in the opinion of the assessing authority, for an amount subsequently lower than the market price of the goods, the valuable consideration receivable by the dealer shall be taken to be the market price determmed in the prescribed manner.

Explanation-1

Any tax, case or duty which is liable to be paid in respect of any goods before the buyer can obtain delivery and possession of such goods and all costs, expenses and charges incurred before the goods are put in a deliverable state shall, notwithstanding any agreement, convenient or understanding that such tax, cess ,duty, costs, expanse or other charges be bom or paid by the buyer or any other person, be included in the sale price.

It would appear from the above definition that the amount received or receivable by a dealer in respect of a sale as valuable consideration includes any sum chained other than the cost of outward freight, delivery or installation or interest or permissible discount as specified in the above provision. Surcharge does not obviously come within the above exemption. As per explanation No. 1, even any tax, cess or duty and all costs, expenses and charges incurred notwithstanding any agreement that such tax, cess, duty, cost, expenses and charges to be born by the buyer shall have to be included in the sale price. The statutory provisions in respect of sale price as above without any ambiguity makes it clear that the amount of surcharge payable to the oil pool account of the Govenunent of India to be collected before delivery of the goods to the buyer cannot be excluded from the sale price as defined in the Act. The definition of ''sale-price'' is clear and definite and the Court cannot put its own words to give it a different meaning.

According to Dr. Saraf, the words "received or receivable by a dealer" incorporated in Clause (d) of Sub-Section 34 of Section 2 suggest that the amount must be ''received or receivable by the dealer on his own account and any sum received by him from the buyer on behalf of any other authority has to be excluded from the definition of sale price. The learned Counsel laid must stress on this submission to get out of the limitions incorporated in the definition of ''sale price''

But, this submission of Dr. Saraf, learned Counsel, in my opinion, runs counter to the very object of Section 2(34)(d) of the Act. The language used in this section is clear and leaves no room for interpretation of the intention of the Legislature. The words ''received or receivable by a dealer'' cannot be read in isolation of the rest of the sentence which when read as a whole with emphasis on the word ''including any sum charged'' makes it abundantly clear that the sale price as defined will embrace within its fold the surcharge collected by the dealer from a buyer before delivery of goods. The clause "including any sum charged'' cannot be given a narrow meaning to exclude the''surcharge''. This would mean adding to the exemptions made specifically in the statute itself. This is a role to be played by the Legislature and not the Court. I am, therefore, unable to endorse the submission advanced by Dr. Saraf.

In support of the above view, we have the decision of the Supreme Court in Assessing Authority cum-excise and Taxation Officer, Gurgaon and Anr. v. East India Cotton Mfg. Co. Ltd. 48 STC 233, where it is observed that a statute has to be constructed according to its own language and neither should anything be added nor substracted unless there are adequate grounds to justify the interference.

Dr. Saraf also referred to a decision of the Apex Court reported in Sri Krishna Das Vs. Town Area Committee, Chirgaon, In this judgment, the Apex Court highlighted the principles of law relating to double taxation which in no way deserve consideration for the purpose of the issue at hand. It is needless to repeat hear again that tax levied on the principle of ''value added taxation'' cannot be constructed as double taxation to challenge the propriety and validity of the provisions of Section 8 and Rule 12.

Dr. Saraf also referred to another decision of the Apex Court in Commercial Taxes Officer Vs. Trilok Chand Prem Prakash, The law laid down by the Supreme Court in the aforesaid case is based on an earlier decision of the Supreme Court in Anand Swarup Mahesh Kumar Vs. Commissioner of Sales Tax, The salient part of the judgment relevant to the case at hand is quoted below:

From the observations made in the decisions referred to above, it follows that where a dealer is authorised by law to pass on any tax payable by him on the transaction of sale to the purchaser, such tax does not form part of the consideration for purposes of levy of tax on sales or purchases but where there is not statutoiy provision authorising the dealer to pass on the tax to the purchaser, such tax does form part of the consideration when he includes it in the price and realise the same from the purchaser. The essential factor which distinguishes the former class of cases from the latter class is the existence of a statutory provision authorising a dealer to recover the tax payable on the transaction of sale from the purchaser.

The above test reiterated by the Apex Court cannot salvage the case of the Petitioner, Annexure-A'' is a resolution adopted on the recommendation made by the Oil Prices Committee set up by the Government of India. The terms and conditions incorporated therein obviously cannot be constructed as a statutory. Unless the said terms and conditions relating to collection of surcharge are given legislative sanction, the ratio laid down by the Supreme Court in the above case cannot be applied.

In the State of Mysore and Anr. v. Mysore Spinning and Manufacturing Co. Ltd. 11 STC 734, the Supreme Court held that the amount received by a registered dealer by way of deposits on the express understanding that the money would be refunded to the constituents if the Assessee was held not liable to include the relevant sales in its taxable turnover was not a collection by way of tax u/s 11(2) of the Mysore Sales Tax Act, 1998. According to the Supreme Court, when once the tax authorities determine that the proceeds of the sales were not to be included in the taxable turnover of the Assessee, the beneficial ownership vested in the depositors and the Assessee ceased to have any right to continue to hold the money. For this reason, the said amount collected by the Assessee by way of deposit was kept out of the purview of taxation. In the instant case, the amount of surcharge collected by the dealer was not by way of deposit from the buyer and, in fact , it has been passed over to the oil pool account. Therefore, this decision cannot be applied for obvious difference in the nature of transaction.

The decision rendered altogether on a different context by this High Court, and relied upon by Dr. Saraf, in Kumar Iron and Steel Pvt. Ltd. Vs. Commissioner of Taxes and Others, do not also appear to have any relevance for determining the issue at hand. The ratio available in Advance Bricks Co. Vs. Assessing Authority, Rohtak and Another, wherein the Supreme Court permitted set-off of the tax paid by the Appellant at the time of purchase of the sun-dried bricks against the tax payable by him on result-price of the bricks sold at an enhanced price after burning. The facts of that case are ex facie distinguishable from the case at hand. The ratio laid down both in Kumar ton and Steel (Supra) and Advance Company (Supra), therefore, do not in any way justify the claim of the Petitioner company.

On reappraisal of the case laws with reference to the facts at hand, it can be concluded that any amount collected by an Assessee from a buyer for payment to some other authority under provisions of any statute will not constituted a part of the''sale price'' for inclusion in the taxable turnover. In the absence of any statutory provision., such collection will, however, be a part of the ''sale price''. In the instant case, there being no statutory provision to the effect, the amount of surcharge collected by the Petitioner-Company even though passed over to the oil pool account has to be inchided in the sale price as defined in Sub-section (34) of Section 2 of the Act. It is needless to reiterate that on such inclusion the amount becomes taxable as per provisions of Section 8 read with Rule 12 of the Rules ,1993, if the re-sale price exceeds 40 percentage of the original price. Thus, the question relatmg to the taxability of the surcharge stands answered.

The next point contended by Mr. Lahiri, learned senior Counsel for the Respondents, relates to the maintainability of the writ petition on the ground that there is alternative efficacious remedy provided in the Act. To advance this point, Mr. Lahiri cited a decision of the Supreme Court in State of Goa and Others Vs. A.H. Jaffar and Sons, While dealing with an appeal filled by the State of Goa and others, the Supreme Court observed that the remedy of revision having been provided in Section 30 of the Mines and Minerals Regulation and Development Act, 1957, the proper course for the Respondents was to approach the Central Government and not the High Court. To counter this. Dr. Saraf referred to a decision of the Division Bench of this High Court in Altafur Rahman v. Union of India (1986) 1 GLR 14 wherein the High Court held that the remedy provided by way of appeal in the Estate Duty Act. 1953 was not an alternative efficacious remedy and the writ petition was maintainable. In the instant case, the notice dated 28.3.96 (Annexure-IV) was issued directing the Petitioner to show cause as to why the penalty u/s 23(G) of the Assam General Sales Tax Act, 1993 would not be imposed which, however, has been assailed by Dr. Saraf as unwarranted on the ground that the process of assessment was not complete and, as such, the notice was premature. But the impugned notice unfiirls a different profile and shows that it was on failure of the Petitioner-company to comply with the requirements of the notice issued u/s 44(1). The Assessing Officer had to issue the same asldng the Assessee to show cause as to why necessary penal action as provided u/s 23(G) of the act would not be imposed. In fact, the notice does not propose any penalty but affords an opportunity to the Petitioner-company to explain the circumstances. The language used in the notice is in keeping with the provisions of Section 23 of the Act and requires Assessing Officer to extend a reasonable opportiuiity of being heard before any direction is issued for payment ofanytaxor interest and penalty. Situated thus, the best course for the Petitioner-company would have been to comply with the requirements of Section 44(1) of the Act by producing the relevant accounts, register or documents relating to the fmancial transactions or, alternately to prefer a revision u/s 36 of the Act which permits an application by a dealer or a person aggrieved by any order passed by the Assessing Officer in exercise of powers conferred on him under this Act. Instead of taking recourse to the aforesaid provisiorw, the Petitioner-Company has approached the High Court although it was within the competence of the revisional authority to look into the grievances of the Petitioner and resolve the same in accordance with law. The powers of revisional authority embodied in 2nd para of the explanation to Section 36 of the Act can be exercised in the interest of the State as well as the Assessee, and the provisions are so designed as to entrust with the superior authority the duty, to correct the wrong committed by the subordinate officers while exercising the powers under this Act. In my opinion, the above remedies are efficacious enough to take care of the dispute between the parties which arose out of the notice dated 28.3.96. Therefore, the case laws cited at the Bar, when considered with the revisional powers of the Superior authority, impels this Court to declare that the writ petition has been premature.

In the result, the writ petition is dismissed. The stay order granted by this Court on 11.4.96 stands vacated. The Assessing Officer may proceed and determine the tax liability of the Petitioner-company in accordance with the decision above after giving an opportunity to the Petitioner-company of being heard. No order as to costs.