Sales Tax Officer vs P.K. Navi and O.S. Chandran

Balakrishna Eradi, C.J.—This is an appeal preferred by the Sales Tax Officer, I Circle, Calicut, against the judgment of a learned single Judge of this Court allowing 0. P. No. 5869 of 1976 filed by the respondent herein and quashing the notices exhibits P2, P4 and P5 issued by the appellant to the respondent. The parties will hereinafter be referred to on the basis of their ranking and array in the original petition, the respondent in the appeal being referred to as the writ petitioner.

The writ petitioner is a dealer in Calicut carrying on business in the sale of arms, ammunition and general goods. For the assessment year 1974-75 the petitioner was assessed to sales tax on a total turnover of Rs. 1,49,045.81 as per the order of assessment evidenced by exhibit PI dated 21st October, 1975. The petitioner paid the entire tax due on the said order. On 13th December, 1976, the petitioner was served with a notice exhibit P2 issued by the Sales Tax Officer (appellant) stating that two items of general goods, viz., sulphur and saltpetre, were wrongly assessed at 4 per cent instead of 15 per cent and that hence it was proposed to revise the original assessment order. In making the assessment as per exhibit PI, the petitioner''s turnover relating to the sale of sulphur and saltpetre had been taxed as general goods u/s 5(1)(ii) of the Kerala General Sales Tax Act-hereinafter called the Act-at the rate of 4 per cent at all points of sale. What was proposed to be done under the notice exhibit P2 was to reassess the said turnover by applying the rate of 15 per cent on the basis that the goods in question fell within the scope of entry No. 18 of the First Schedule to the Act, which reads :

All arms including rifles, revolvers, pistols and ammunitions for the same.

and were hence taxable at the point of first sale at 15 per cent. The petitioner filed his objection against the proposal incorporated in exhibit P2 as per his representation evidenced by exhibit P3 dated 17th December, 1976. No final orders were passed in the matter or communicated to the petitioner. While things stood thus, the Sales Tax Officer issued a similar notice to the petitioner in respect of the year 1975-76 proposing to revise the assessment originally made for that year on the same ground. Exhibit P4 is a copy of the said notice. Shortly thereafter on 21st December, 1976, the petitioner was served with a notice exhibit P5 intimating him about a similar proposal for revising the assessment for the year 1976-77. The writ petition was brought by the petitioner seeking to quash exhibits P2, P4 and P5.

The learned single Judge upheld the petitioner''s contention that sulphur and saltpetre will not fall within the scope of entry No. 18 of the First Schedule because they cannot be regarded as "ammunitions" either in the popular sense of the said expression or in the commercial sense of that term. The objection taken by the respondent in the original petition that the petitioner was not entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution without exhausting the statutory remedies available to him was overruled by the learned single Judge by pointing out that in the instant case no useful purpose would have been served by the petitioner by pursuing his objections before the Sales Tax Officer or even before the first appellate officer since the State Government had issued clear instructions to the department that sulphur and saltpetre are liable to be subjected to a levy of sales tax under entry No. 18 of the First Schedule.

The writ petition was accordingly allowed and the impugned notices evidenced by exhibits P2, P4 and P5 were quashed.

Notwithstanding the persuasive efforts made by the learned Government Pleader to make out that the aforesaid conclusion of the learned single Judge is incorrect and unsustainable, we are unable to accede to that contention. We may first dispose of the argument reiterated before us by the learned Government Pleader concerning the maintainability of the original petition. Ordinarily, it is well-established by the decisions of this Court that the writ jurisdiction of the High Court will not be permitted to be invoked by parties, especially in taxation matters, when statutory remedies are available to them for the redressal of their grievances. This principle is, however, not without exceptions. The present case is manifestly one which falls within the exceptional category. The reason for that has been clearly pointed out by the learned single Judge in his judgment, namely, that the statutory remedy that would ordinarily have been available to the assessee in the form of pursuing his objections before the Sales Tax Officer against the proposal for reassessment and carrying the matter in appeal in the event of the assessing authority''s decision being against him has been rendered totally ineffective on account of the direction issued by the State Government which is binding on the assessing authority as well as the appellate authority that sulphur and saltpetre are commodities which fall within the scope of entry No. 18 of the First Schedule to the Act and are liable to be subjected to tax at the rate mentioned therein. In such circumstances we consider, with respect, that the learned Judge was perfectly justified in overruling the preliminary objection raised by the learned Government Pleader on behalf of the Sales Tax Officer.

That leaves us with the question as to whether sulphur and saltpetre will fall within the scope of entry No. 18 of the First Schedule to the Act. We have already extracted the said entry in full. The contention advanced by the Government Pleader is that for the purposes of the Arms Act, 1959, a notification has been issued by the Central Government in exercise of the powers conferred by Sub-clause (vii) of Clause (b) of Section 2(1) of the said Act specifying sulphur and saltpetre as ingredients of ammunition. In our opinion, the said circumstance has no relevance at all in determining the scope of entry No. 18 contained in the General Sales Tax Act. The object, purpose and scheme of the Arms Act which has been enacted by the Parliament are totally different from and bear no relationship whatever with the object and purpose of the General Sales Tax Act enacted by the Kerala State Legislature. Even otherwise, the definition of an expression contained in one enactment cannot furnish any safe guideline for determining the scope and content of the same expression used in a different context in a separate enactment. This is all the more so when the two enactments have been passed by different legislative bodies. We have, therefore, to consider the content and scope of the expression "ammunitions" occurring in entry No. 18 of the First Schedule to the Act by applying to it its ordinary meaning as obtaining in common parlance or commercial parlance. Judged by this test we find it impossible to regard sulphur and saltpetre as "ammunitions", even though they may have use as ingredients in the preparation of certain kinds of explosives. We are, therefore, in complete agreement with the view expressed by the learned single Judge that sulphur and saltpetre do not fall within the scope of the entry aforementioned and that the action initiated by the Sales Tax Officer for revising the assessments made against the petitioner for the years 1974-75, 1975-76 and 1976-77 by subjecting the turnover relating to the sale of sulphur and saltpetre to levy of tax at 15 per cent under entry No. 18 of the First Schedule as per the notices evidenced by exhibits P2, P4 and P5 was manifestly illegal and without jurisdiction. The writ appeal is accordingly dismissed, but in the circumstances of the case, without any direction regarding costs.

Immediately after the pronouncement of the judgment the learned Government Pleader orally prayed under Article 134A of the Constitution for the grant of a certificate under Article 133(1) to enable the State to carry this matter in appeal before the Supreme Court. We do not, however, consider this to be a fit case for the grant of such a certificate since, in our opinion, it does not involve any substantial question of law of general importance on which a pronouncement by the Supreme Court can be said to be necessary.