Sales Tax Officer v. Indian Wood Products Co. Ltd.

Prithvi Raj, J. (Oral):— The two Letters Patent Appeals are directed against a judgment dated February 1, 1968, passed by a learned Single Judge of this Court whereby the learned Judge allowed Civil Writ petition nos. 220-D/62 and 221-D/62. The two Letters Patent Appeals are, therefore, disposed of by this common judgment. The respondents question the competence and jurisdiction of the Sales Tax Officer, Delhi, to levy and collect sales tax on the sales made by them alleging that their sales were governed by section 3 (a) of the Central Sales Tax Act and the tax was accordingly payable in Uttar Pradesh.

With a view to appreciate the contentions of the parties, it would be appropriate to give a summary of facts of the case.

The respondents company who are the manufacturers of ‘Katha’ and ‘Cutch’ have their factory at Izatnagar within the State of Uttar Pradesh. The respondents have their Head Office in Calcutta from where instructions are sent to its factory at Izatnagar to despatch the goods to the customers at the place of their business.

The case of the respondents is that for the sale of its products to the customers, delivery has to be made F.O.R Izatnagar and the goods are despatched from Izatnagar to the customer's place of business; that instructions are sent by Head Office in Calcutta to its factory at Izatnagar to despatch the goods in terms of the agreement for sale; that when the goods are ready they are unconditionally appropriated by its factory to the respective contracts and thereafter despatched by rail direct to the customer's place of business; that the Railway receipts are taken in the name of the respondents as consignor and “self” as consignee; that the Railway receipts are sent to its respective offices from whose territory the orders emanated and that the concerned offices prepare bills, collect payments and then endorse the Railway receipts and deliver them to its customers.

The respondents contend that during the period of July 1, 1957 to March 31, 1958, through its Delhi office, they entered into agreements with the customers for sale to them of its products manufactured at its factory at Izatnagar within the State of Uttar Pradesh and the agreements in all those cases provided for delivery F.O.R Izatnagar, besides containing instructions for despatch of the goods to the customers' place of business at Delhi. The respondents' head office in Calcutta issued instructions to its factory at Izatnagar to despatch the goods to the customers' place of business at Delhi in terms of the agreement and when the goods were made ready the factory at Izatnagar unconditionally appropriate the goods to each of the contracts and despatched the goods by rail to Delhi. The goods, however, were booked in the name of the respondents as consignor and “self” as consignee and the railway receipts were sent to the respondents' Delhi office who prepared bills, collected payments and endorsed the railway receipts in favour of the customers and delivered the receipts to them at the time the goods were in course of movement. That being so, it is contended that the sale to the various parties in Delhi were sales in the course of inter State trade and commerce within the meaning of Section 3 of the Central Sales Tax Act which are taxable under the provisions of the aforesaid Act.

The Central Sales Tax Act came into force on July 1, 1957 and the respondents' Delhi office presuming that Delhi were the appropriate State in respect of transactions effected by them during the period July 1, 1957 to March 31, 1958 got itself registered in Delhi under the Central Sales Tax Act and submitted a return to the Sales Tax Officer, Delhi for the quarter, July-September, 1957 besides depositing the tax due on the basis of the return. Later on the advice given by the Government of India that the appropriate State would be Uttar Pradesh, the respondents amended its return for the quarter of July-September, 1957, and filed a new return for that quarter. Similarly ‘Nil’ return for October-December and the quarter ending January-March, 1958 were filed. The respondents in pursuance to the provisions of the Central Sales Tax Act had been submitting returns to the Sales Tax Officer, Bareilly in Uttar Pradesh in respect of all the sales made by them throughout India including the sales effected by them in Delhi as it is contended that it was at Izatnagar in Uttar Pradesh that the goods were moved in pursuance of the inter-State sales and it was at that place where the goods were appropriated to the contracts for sale and deposited the tax with the Sales Tax Officer, Bareilly on the basis of its return on all its sales throughout India including the sales made by respondents to its customers in Delhi. The respondents were assessed to Sales Tax on the transactions of sales made by it to parties in Delhi by the Sales Tax Officer, Bareilly, Uttar Pradesh by his order dated 30th January, 1960 which was subsequently modified by order dated 31st December, 1961. Despite the fact that the respondents had been assessed by the Sales Tax Officer, Uttar Pradesh and the respondents have made payments of the sales tax to the Sales Tax Officer, Bareilly, the Sales Tax Officer, Ward No. XIII, Delhi made an assessment order levying the Sales tax on the same transactions on which the respondents had already been taxed by the Sales Tax Officer, Bareilly on the ground that the place of sale was Delhi. This order of the Sales Tax officer, Delhi was challenged by the respondents in the above-said two Writ petitions. The appellant resisted the writs on the ground that the respondents failed to avail of the remedies by way of an appeal or revision etc. as provided under the Sales Tax Act and in the circumstances, it was contended that the remedy by way of writ under Article 226 of the Constitution was not open to the respondents. On merits the appellant contested that there was no unconditional appropriation of the goods against individual contract at Izatnagar and the appropriation of goods took place when the Railway Receipts representing the title to them were endorsed by the respondents at its office in Delhi in favour of the various customers against payments made by them at Delhi.

The learned Single Judge was of the view that under Section 4 (2) (b) of the Central Sales Tax Act, the place of sale is dependant upon the location of the goods at the time of their appropriation to the contract of sale. In this connection the learned Single Judge observed as follows: —

“The term “appropriation” may be used in the sense that the goods are identified by the agreement of the parties as the goods about which they are contracting, so that the contract can never apply to any other goods. In other words the goods are so far appropriated that the seller would, by delivering any other goods, break the contract though the goods still remain the seller's property. The term “appropriation” has not been defined and in the primary sense to appropriate is to set apart a thing with common consent as the property of a buyer and where a person is entitled to goods which form part of a larger quantity and are not ear-marked, and afterwards, the goods to which he is entitled, are separated from the rest and set apart for him, they are said to be appropriated. In the other sense, it may mean a final appropriation of the goods to the contract so as to pass the property therein to the buyer. Consequently, when goods are selected with the common consent of the parties there may be appropriation of the goods to the contract even though the property has not passed. The scheme of the Sales Tax Act goes to show that the Parliament left out of account the element of passing of property as of any relevance in determining the situs of sale and the question of appropriation of goods has to be decided, irrespective of the passing of property. In other words, the appropriation referred to in Section 4 (2) (b) connotes the setting apart of goods as specific goods to be delivered under the contract of sale and not an appropriation linked with passing of property. .. In the petition as well as in the counter-affidavit emphasis has been mainly laid on “unconditional appropriation” of the goods to the contract in Uttar Pradesh, but from the contentions of the assessee raised before the Sales Tax Officer, New Delhi, which have been quoted above, it does appear that the petitioner had argued that the goods were appropriated to the contract in Uttar Pradesh. The findings given by the Sales Tax Officer, New Delhi, are quite consistent with “appropriation of goods” in Uttar Pradesh. He has given no clear finding that the goods were appropriated to the contract as distinguished from “unconditionally appropriated” in Delhi. Without that finding the sales Tax Officer, could not assume jurisdiction to levy or collect the Sales tax.”

In the result the learned Single Judge allowed the petitions having regard to the fact that the petitioner had already paid the tax due on those transactions in Uttar Pradesh and without a firm finding reg: place of “appropriation of goods” it would be unjust to burden the petitioner with the levy a second time.

Mr. B.N Kirpal the learned counsel for the appellants contended that the contentions raised in the petitions involved the interpretation of section 3 (b) of the Central Sales Tax Act, 1956 and that in view of the fact that since both the goods and the R/Rs were in the possession of the respondents and that R/Rs were taken in the name of the respondents as consignor and “self” as consignee, the appropriation to the contract of sale would take place the moment the goods were sent to the buyer. That being so, facts in detail such as what was the quantum of goods sold, the date on which the goods were sold, the party to whom the goods were sold and that when the appropriation took place, have to be gone into and that it would not be proper in law to quash the order of the Sales Tax Officer, Delhi, without permitting him to make a full and detailed enquiry into the questions set out above. It was further contended that the learned Judge had not said anything about the fact as to whether the appropriation took place in Delhi or Uttar Pradesh and that the essential finding which was necessary and required to be given by the learned Single Judge was missing. In this view of the matter it was urged that the judgment of the learned Single Judge cannot be supported. It was also contended that since the Sales Tax Officer had jurisdiction to determine as to at which place the appropriation took place it was all the more necessary that an opportunity should have been afforded to the Sales Tax Officer, Delhi to determine that fact in the instant case; more especially when the learned Single Judge has observed that the Sales Tax Officer, Delhi, had no jurisdiction to tax the respondents without giving a finding as to the place where the sale was effected on proper application of law.

On merits, it was contended that the respondents had submitted to the jurisdiction of the Sales Tax authorities in Delhi and had been even depositing the tax, apart from filing the quarterly returns and in this view of the matter it was submitted that the High Court should not exercise powers under Article 226 of the Constitution when the Sales Tax Officer, had already passed orders and assessed the respondents.

We are unable to sustain the contentions of the learned counsel for the appellants. It may be stated here that the parties before the learned Single Judge did not dispute that the sales in question to various parties in Delhi were sales in the course of inter-State trade and commerce within Section 3 of the Central Sales Tax Act. The Sales Tax Officer New Delhi, also took the view that the transactions were in the nature of Inter-State sale as contemplated by clause (b) of section 3 but according to him the sale was effected when the goods were in movement from Uttar Pradesh to Delhi. The Sales Tax Officer, however, did not give any finding as to whether the goods were or were not appropriated to the contract in Uttar Pradesh, as alleged by the respondents. Under section 9 of the Central Sales Tax, the tax payable by any dealer under the said Act on sale of goods effected by him in the course of inter-State trade or commerce irrespective of the fact whether such sales fell within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied, shall be collected by the Central Government in accordance with the provisions of sub-section (2) in the State from which the movement of the goods commenced. It is, therefore, obvious that the sales tax under the Sales Tax Act has to be paid once only and that in the State from which the movement of the goods commenced. It is not disputed before us that the respondents had already been assessed and that they had deposited the tax with the Sales Tax Officer, Bareilly. That being so, the respondents cannot be taxed twice on the sale of commodities made in the course of Interstate trade or commerce. The Sales Tax Officer, Delhi, having failed to give a firm finding as to the place where the sale was effected, the appellants cannot make a grievance that detailed questions of fact such as what was the quantum of goods sold the date on which the goods were sold, the party to whom they were sold, the price at which they were sold and as to where the appropriation took place, are required to be determined and that the Sales Tax Officer be allowed to determine the said question. We see no force in this contention. It was for the Sales Tax Officer to look into all these aspects before making an order and if he failed to go into all those questions, no grievance can be made on that score. In this connection reliance was placed on Himmatalal Harilal v. The State of M.P and others (1954 S.C.R 1122) (1) in which their Lordships of the Supreme Court approved the dictum of the Nagpur High Court that sales tax on goods can be made payable only when the goods are appropriated to a particular contract. It was accordingly contended that the Sales Tax Officer, Delhi, should have been allowed to determine the fact as to at which place the goods in question were appropriated. Support was also drawn from Tata Engineering & Locomotives Co. Ltd. v. The Asstt. Commr. of Commercial Taxes and another (1970 (1) S.C.C 622) (2) in support of the contention that each transaction of sale in the present petitions is required to be examined with a view to find out if there were firm orders to complete transaction of sale and to find out whether the goods were appropriated in Delhi or Izatnagar.

We are of the opinion that the principles laid down in the above-cited two authorities are not the instant case as the Sales Tax Officer, Delhi, failed to go into the questions as to when the goods were appropriated to a particular contract and also failed to find out as to at which place the goods in question were appropriated. Having assumed jurisdiction to assess the petitioners to tax without giving a finding on the questions now sought to be raised, we are of the opinion that it is not open to the appellants at this stage to make any grievance. The order of the Sales Tax Officer dated 28th March, 1962, has been quashed by the learned Single Judge on the question that he had no jurisdiction to assess the petitioner; more especially when the petitioner had already been assessed and had deposited the sales tax and that in the circumstances it would be unjust to burden the petitioner with the levy a second time. We do not find any cogent reasons to differ from the judgment of the learned Single Judge.

The other contention of the learned counsel for the appellants is, that when an alternate remedy is provided under the Sales Tax Act was available to the respondents, the High Court should have declined to exercise jurisdiction under Article 226 of the Constitution. In support of this contention the learned counsel relied upon Smt. Ujjam Bai v. State of Uttar Pradesh and another, (A.I.R 1962 S.C 1621) (3) in which it was held that an order of assessment made by an authority under a taxing statute which was intra vires and in the undoubted exercise of its jurisdiction could not be challenged on the sole ground that it was passed on a misconstruction of a provision of the Act or of a notification issued thereunder. Further it was held that the proper remedy for correcting an error in such an order was to proceed by way of an appeal and if the error was an error apparent on the face of the record, then by an application under Article 226 of the Constitution.

In our opinion no help can be derived by the appellants from the decision in the above-cited authority. As already noted above the Sales Tax Officer, Delhi, assumed jurisdiction to assess the respondents to tax without giving a finding as to the place where the sale was effected on proper application of law which by itself is an error apparent on the face of the record and for correcting such an error an application under Article 226 of the Constitution is maintainable as observed in the above-cited authority.

The learned counsel for the appellants next relied upon Shivram Poddar v. The Income Tax Officer, Control Circle II, Calcutta and another (A.I.R 1964 Supreme Court 1095) (4) in which the Court observed that Income-tax Act, 1922, provides a complete machinery for assessment of tax and for relief in respect of improper or erroneous order made by the revenue authorities and that resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise.

Reliance was also placed on Bhopal Sugar Industries Ltd. Madhya Pradesh v. D.P Dube, Sales Tax Officer, Bhoal Region, Bhopal (A.I.R 1967 Supreme Court 549) (5) in which their Lordships of the Supreme Court observed that jurisdiction of the High Court under Article 226 was extensive but normally the High Court would not exercise that jurisdiction by entertaining petitions against the order of taxing authorities when the statute under which tax was sought to be levied provided a remedy by way of an appeal or other remedies to a party aggrieved and thereby by pass a statutory machinery.

Reliance was further placed on Jugal Kishore Brij Mohan v. The State of Punjab and others, (14 Sales Tax Cases 469) (6) in which it was observed that normally speaking, parties must be left to have recourse to the procedure prescribed under the Punjab General Sales Tax Act, 1948, for redress of their grievances and they should not be encouraged to treat proceedings under Article 226 of the Constitution as substitutes for the proceedings which are provided by the taxing statute itself.

There can be no doubt about the principles laid down in the above-cited authorities but in the instant case as noted in an earlier part of this judgment, the tax payable under section 9 of the Central Sales Tax, by any dealer under the said Act on sales of goods effected by him in the course of inter-State trade or commerce irrespective of the fact whether such sales fell within clause (a) or clause (b) of section 3, has to be levied by the Government of India and the tax so levied, shall be collected by the Central Governments in accordance with the provisions of sub-section (2) in the State from which the movement of goods commenced, and the respondents have already been assessed by the Sales Tax Officer, Bareilly, and they have already deposited the tax so assessed and as such they cannot be made to pay the said tax over again; more so when the Sales Tax Officer, Delhi, had no jurisdiction to assess the respondents to tax without giving a positive finding as to the place where the sale was effected. In the circumstances it cannot be urged that the petitions are not maintainable. In the special circumstances of the case the learned Single Judge was justified in holding that he was not inclined to dismiss the petitions on the ground of existence of an alternate remedy.

For the reasons stated above, the appeals, which are devoid of merit, are dismissed but with no order as to costs.

Appeal dismissed.