O.M.S.S. Sivamurugan vs Assistant Commercial Tax Officer VIII

Ramanujam, J.—The petitioner herein is a registered dealer under the Madras General Sales Tax Act of 1959 doing business in tamarind and soap-nut powder. He is also a registered dealer u/s 7(3) of the Central Sales Tax Act, 1956. He reported a gross turnover of Rs. 30,465.99 and a taxable turnover of Rs. 19,688.95 in his return in Form A-l for the year 1967-68. He contended that the turnover of Rs. 10,777.04 out of the gross turnover related to outside State sales, the goods having been purchased and sold in Mysore State. The said return filed by the petitioner was found to be correct by the assessing authority after check of his accounts. The assessing authority however found that the net turnover of Rs. 19,688.95 included a turnover of Rs. 7,202.90 being the sales turnover of goods purchased in Mysore State against ''C'' form declarations and sold within the State of Madras. Since the petitioner had opted to pay the tax u/s 7, the tax payable u/s 3(1) was computed on the total turnover of Rs. 19,688.95 apart from the tax payable by the dealer, u/s 5 of the Act at 3% on the turnover of Rs. 7,202.90.

The petitioner has questioned the validity of the assessment order on various grounds in this writ petition. But only one ground was pressed before us at the time of the hearing. The objection was that the assessing authority was in error in levying tax u/s 5 of the Act on a part of the turnover already subjected to levy u/s 7. It is contended on behalf of the petitioner that once tax? is collected u/s 7 on the entire turnover, whether it is taxable u/s 3(1) or u/s 5, it is not possible for the State to levy in addition a tax u/s 5. It is urged that the tax, leviable u/s 5 on a portion of the turnover, is at the same rate as is mentioned in Section 3(1), that as such even if the tax is levied u/s 5, it is in substance a tax levied u/s 3(1) and that the tax collected u/s 7 is in lieu of the tax leviable either u/s 3(1) or u/s 5. We are not in a position to accept the contention advanced on behalf of the petitioner that there has been a double levy on the turnover of sales of Rs. 7,202.90 being the sales of goods purchased in Mysore State and sold in this State, coming u/s 5 and that the levy of tax u/s 5 in addition to the collection of tax u/s 7 violated Article 19(1)(f) and (g) of the Constitution. On a conjoint reading of Sections 3(1), 5 and 7 of the Act, it is clear that the levy of tax u/s 5 is a separate and independent charge apart from the levy of tax u/s 3(1) and that the levy of tax u/s 7 is only in lieu of the tax leviable u/s 3(1) and not in lieu of the tax leviable under any other provision of the Act. Section 7 gives an option to an assessee to pay tax at the rates specified therein based on his total turnover, instead of paying an ad valorem tax as provided in Section 3(1) and this section does not concern itself with the tax leviable u/s 5 at all. Of course for the purpose of levy u/s 7 it is the total turnover of the dealer that matters and not his taxable turnover, while Section 3(1) levies tax only on the taxable turnover. From the mere fact that the total turnover of an assessee is taken for the purpose of levying tax u/s 7 it is not possible to say that the entire turnover has been subject to tax u/s 3(1) and that the levy of tax u/s 5 is barred. In our view the learned counsel is not correct in his submission that once tax is levied u/s 7 on the total turnover of a dealer, it is not possible to levy tax on any part of that turnover u/s 5. According to us the said submission proceeds on wrong premises. Section 7 does not levy tax on the total turnover but it levies tax due u/s 3(1) by quantifying the same with reference to the total turnover of a dealer.

Our view finds support from a decision of this court in Kaliappan v. State of Madras [1963] 14 S.T.C. 750 where a Bench of this court has dealt with the identical question and held that the pattern of taxation which Sections 3, 5 and 7 of the Madras General Sales Tax Act, 1959, lay down does not confer a right upon a dealer registered u/s 7(3) of the Central Sales Tax Act, 1956, to the benefit of taxation at the compounded rates u/s 7 of the Madras Act and that a dealer registered under the Central Act will be liable to tax at the rate specified u/s 5 of the Madras Act, on his sales of goods with reference to the purchase of which he has furnished a declaration u/s 8(4) of the Central Act, even if his total turnover is less than the minimum limit for liability to tax prescribed in Section 3(1) of the Madras Act. The learned Judges took the view that the reference to Section 3 in Section 5 is only intended to refer to the goods in respect of which different rates of tax are levied and that it would be inappropriate to say that a dealer coming u/s 5 is being taxed really u/s 3 of the Act. As pointed out by the learned Judges in that case Section 5 is a special charging section and the expression "notwithstanding anything contained in Sub-section (1) of Section 3'''' removes the case of such a dealer from the ambit of Section 3 and when tax is levied u/s 5 , it cannot be assumed that the dealer is taxed u/s 3 so as to attract Section 7.

Having regard to the view we have expressed on the relative scope of Sections 3, 5 and 7 of the Act, the petitioner''s contention has to fail. The writ petition is dismissed with costs. Counsel''s fee Rs. 100.