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1952 DIGILAW 150 (BOM)

COMMISSIONER OF SALES TAX, MADHYA PRADESH, NAGPUR v. MOHANLAL RAMKISAN NATHANI, RAIPUR

1952-11-18

J.R.MUDHOLKAR

body1952
ORDER MUDHOLKAR, J. - This is a reference by the President, Board of Revenue, Madhya Pradesh, under section 23(1) of the C.P. and Berar Sales Tax Act, 1947. The question which are referred to this Court, at the instance of the Commissioner of Sales Tax, are as follows :- "(1) A dealer effects casual sales of certain goods, the like of which find no mention either in his application for registration or in the registration certificate granted to him, among goods ordinarily purchased by him for resale. They (goods sold) are used or second-hand goods forming his private property for which he has no further use. Also they have no connection with any of the businesses for which he is registered or is liable to be registered. Are these sales liable to be taxed under the Act ? (2) Can plain glass sheets, such as are used for window panes and door panes, be regarded as 'glass-ware' for the purpose of item 14 of the original Schedule I to the Act ?" 2. A preliminary objection is taken to the reference on behalf of the non-applicant. It is to the effect that the reference ought to have been made not by a single Member of the Board of Revenue, as here, but by a Bench of two Members as provided for in Rule 8 framed under section 7(1) if the Act and published in the C.P. and Berar Gazette of 10th May, 1949 at page 485. That rule runs thus :- "The following matters shall be placed before and heard and decided by a Bench of two or more Members as directed by the President :- (i) Any matter directly affecting the revenues of the Province in which the Advocate-General or Government Advocate appears on behalf of the Provincial Government. (ii) Rotation cases under the Berar Patels and Patwaris Law, 1900, and the rules thereunder." The learned counsel who appears for the applicant states that this rule has been amended but concedes that the amendment was made after the case was referred to this Court by the Board of Revenue. For rule 8 to be attracted to this case, it must be shown that the matter which arose before the Board of Revenue directly affected the revenue of the State. For rule 8 to be attracted to this case, it must be shown that the matter which arose before the Board of Revenue directly affected the revenue of the State. The matter which was directly before the Board was only whether a reference should be made or should not be made. It could be said that such a matter directly affects the revenue of the State, though it may indirectly affect it. There is no rule which requires a matter which indirectly affects the revenue of the State to be placed for hearing and decision by a Bench of two or more Members. I, therefore, overrule the preliminary objection. 3. Now as regards merits. I have already set out the first question which is referred to this Court. The Board of Revenue in its appellate order has held that a casual sale of the kind mentioned in the question is not liable to be taxed under the Sales Tax Act. In my opinion the view taken by the Board of Revenue is correct. 4. A sales tax is payable under the Act only by a dealer. A dealer is defined as follows in section 2(c) of the Act :- "'dealer' means any person who, whether as principal or agent, carries on in the Central Provinces and Berar the business of selling or supplying goods, whether for commission, remuneration or otherwise and includes a firm, a partnership and a Hindu undivided family and includes also a society, club or association selling or supplying goods to its members." Thus, a person can be regarded as a dealer only in relation to the goods which it is his business to sell or supply. So, where a person, though a dealer in respect of certain commodities effects a sale of a commodity which it is not his business to sell, he is not liable to be taxed under the Act. It is not correct to say that merely because a commodity falls within Schedule I of the Act any person who effects a sale thereof is liable to pay tax, nor is it correct to say that because a person is a dealer within the meaning of the Act he is bound to pay tax with regard to every sale of property which falls under Schedule I do the Act. It must be established that the commodity sold falls within Schedule I and the person who sells it is engaged in the business of selling or supplying that commodity. 5. A casual sale and that of second-hand goods would not attract the provisions of the sales Tax Act. In this connection it may be useful to refer to a decision of the Exchequer Court of Canada in King v. Shelly ((1936) D.L.R. 415). The question which fell for decision was whether a person who, not being a manufacturer or trader and as an isolated act, builds a yacht for his personal use with no intention of disposing of it was not a "manufacturer or producer" within the meaning of the Special War Revenue Act so as to be liable for sales tax upon sale of such yacht. The question was answered by the Court in the negative. The learned Judge while deciding the case observed thus at pages 422-423 :- "Does the same principle apply in the case of an isolated act by a person who is not a manufacturer or producer by trade ? Must a man building, as in this case, a yacht, or building any other object or article, for instance a truck, a rig, or, on a smaller scale, a pair of skis, a table, a tool, for his personal use, with no idea of selling it, be considered a manufacturer of producer for the purpose of the Act ? I must admit that I have been unable to find any decision or authority on the point, although I have spent considerable time in looking up the jurisprudence dealing with consumption or sales tax." What the learned Judge has said is equally true of the motor cars sold by the non-applicant. It is not his business to sell motor cars. He did not purchase the cars with the intention of re-selling them. Perhaps because those cars were of no use to him or because he was in need of money that he sold them. The sales of the cars effected by the non-applicant are thus outside the purview of the Act. 6. The decision in Deputy Federal Commissioner of Taxation for the State of South Australia v. Ellis and Clark Limited (52 C.L.R. 85) supports this view. The sales of the cars effected by the non-applicant are thus outside the purview of the Act. 6. The decision in Deputy Federal Commissioner of Taxation for the State of South Australia v. Ellis and Clark Limited (52 C.L.R. 85) supports this view. Here it was held that when goods are resold the second sale is not liable to sales tax under this Act. The learned Judge who decided that case has observed thus at page 89 :- "Although the tax levied by the enactments is called a sales tax, it is not a tax upon all sales of commodities. It is a tax levied upon one only of the transactions which commonly take place in respect of goods before they reach the consumer after they are imported into or produced in Australia." The Central Provinces and Berar Sales Tax Act does not provide for a multi-point sales tax. Under this Act a sale is liable to be taxed only once and therefore the principle set out in the Australian case would also apply here. For the reasons stated above I would answer the first question in the negative. 7. Now coming to the second question it is is desirable to bear in mind the dictionary meaning of the word "glass-ware". According to the Oxford English Dictionary it is "Articles made of glass." As observed by Lord Coleridge in R. v. Peters ((1886) 16 Q.B.D. 636, 641), "I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but it is a well-known rule of Courts of law that 'words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books.' Again, as observed by Cozens-Hardy, M.R., in Camden (Marquis) v. Inland Revenue Commissioners ([1914] 1 K.B. 641 at 647), "It is for the Court to interpret the statute as best it may. In so doing the Court may no doubt assist themselves in the discharge of their duty by any literary help they can find, including of course the consultation of standard authors and reference to well-known and authoritative dictionaries." Of course, if it is clear from the statute that a certain word is used in a special sense, it would have to be given the meaning instead. Where, however, it does not appear from the statute that the word is used in a special sense the natural or dictionary meaning of the word must be given to it. The question, therefore, is whether the word "glass-ware" used in Entry No. 14 of Schedule I to the Act, as it stood before its amendment by Act XVI of 1949, has been used in a special sense. 8. It is argued by the learned counsel for the non-applicant that Schedule I under which the maximum sales tax, that is 0-1-0 in the rupee, is made payable under the Act applies only to articles of luxury and therefore the word "glass-ware" must be understood to apply only to such articles made of glass as are used for luxury. I do not think that all the articles specified in this Schedule can be properly regarded as luxury articles. Even assuming that Schedule I is confined to only articles of luxury, that is to say, the articles used by the well-to-do classes, it seems difficult to hold that glass panes would not fall within the term "glass-ware". It is common knowledge that glass panes are not used by the poorer classes of people. For, they are not affixed to windows or doors of their houses. In any opinion, therefore, the term "glass-ware" whether it is interpreted in a narrow sense or otherwise, would necessarily include glass panes. I answer the second question accordingly. 9. The answers be sent to the Board of Revenue. Costs of this reference will be borne as incurred. Reference answered accordingly.