ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, BELLARY v. INDIA SUGARS AND REFINERIES LTD.
1987-12-07
P.A.KULKARNI
body1987
DigiLaw.ai
JUDGMENT P.A. KULKARNI, J. These petitions arise out of the common order dated 8th May, 1986, passed by the Addl. J.M.F.C., Hospet in M.C. Nos. 16, 12, 5 and 13 of 1982 filed by the Assistant Commissioner of Commercial Taxes, Bellary, for recovery of the purchase tax for the different periods ranging from 1976 to January, 1982 under section 13(3)(b) of the Karnataka Sales Tax Act, 1957. 2. According to Mr. Rangaraju, the Salar Jung Sugar Mills, Munirabad was formerly a unit and branch of the respondent-India Sugars and Refineries Ltd., and as per the agreement dated 13th April, 1982, the Salar Jung unit had been transferred by the India Sugars and Refineries Ltd. as a separate unit and that hence the Salar Jung Sugar Mills alone is liable to pay the arrears of tax. He referred me to the date of agreement referred to in the order of the court below. The agreement is dated 13th April, 1982. The application for recovery in M.C. No. 16 of 1982 is filed on 6th March, 1982. The application for recovery in M.C. No. 12 of 1982 is filed on 10th February, 1982. The application for recovery in M.C. No. 5 of 1982 is filed on 10th February, 1982 and the application for recovery in M.C. No. 13 of 1982 is filed on 10th February, 1982. Therefore, looking to the dates of the filing of the applications in these cases, they are prior to the period, when the agreement between the Salar Jung Mills and the respondent took place. Under section 15 of the Karnataka Sales Tax Act, "when the ownership of the business of a dealer liable to pay the tax or penalty, or any other amount under the provisions of this Act, is transferred the transferor and the transferee shall jointly and severally be liable to pay any tax or penalty or any other amount payable in respect of such business and remaining unpaid at the time of transfer, and for the purpose of recovery from the transferee such transferee shall be deemed to be the dealer liable to pay the tax or penalty or other amount under this Act". Therefore, the responsibility under this Act is joint and several. The taxing authority is entitled to recover the tax from the transferor as well as the transferee.
Therefore, the responsibility under this Act is joint and several. The taxing authority is entitled to recover the tax from the transferor as well as the transferee. Section 15 does not entitle the transferee to point out the transferor and vice versa. In order to avoid such a situation that might arise on transfer, the legislature thought it fit to enact section 15 so as to enable the authorities to collect tax from either the transferee or the transferor or both. Learned Government Pleader, Koti, relied on section 15 of the Act and constructed an argument that the taxing authority can recover the arrears of tax either from the transferee or from the transferor or both. The said argument is well-founded. Admittedly, the Government is not a party to the agreement between the respondent and the Salar Jung Mills. So whatever be the agreement between them, the said agreement would not come in the way of the tax authorities collecting the arrears. This is also the view taken by the Supreme Court in Deputy Commercial Tax Officer, Park Town Division, Madras v. Sha Sukraj Peerajee [1968] 21 STC 5. Therefore, the trial court, in my opinion, has misdirected itself by misinterpreting section 15(1) of the Sales Tax Act. Therefore the amounts sought to be recovered in these petitions are for the period prior to the date of agreement between the respondent and the Salar Jung Mills. Therefore, the petitioner in all these cases is entitled to recover the amount mentioned in these petitions either from the transferee or the transferor. 3. Learned counsel Sri Rangaraju submitted that the Salar Jung Mills ought to have been made a party. Accepting such an argument would amount to adding confusion in such cases. The parties in order to avoid paying taxes might resort to such transfers prior to or after the commencement of the proceedings. The tax recovery authorities are not bound by such transfers. He can even ignore them. Therefore, the said argument by Sri Rangaraju is rejected. 4.
Accepting such an argument would amount to adding confusion in such cases. The parties in order to avoid paying taxes might resort to such transfers prior to or after the commencement of the proceedings. The tax recovery authorities are not bound by such transfers. He can even ignore them. Therefore, the said argument by Sri Rangaraju is rejected. 4. Section 12-B of the Sales Tax Act reads : "Subject to such rules as may be prescribed, every dealer shall send every month to the assessing authority a statement containing such particulars as may be prescribed including the taxable turnover during the preceding month and shall pay in advance the full amount of tax payable by him under this Act within twenty days after the close of the preceding month to which such tax relates on the basis of the turnover particulars shown in the statement .............." Section 25-B of the Sales Tax Act reads : "Notwithstanding anything in section 5, there shall be levied and collected a tax on the last purchase of sugarcane in the State at the rate of, - (i) rupees nine per tonne, when purchased by the manufacturer of jaggery and sugarcane syrup (processed); (ii) rupees sixteen per tonne, in other cases : Provided that no tax shall be levied and collected on the last purchase of sugarcane in the State when purchased by a manufacturer of jaggery and sugarcane syrup (processed) whose total turnover during the year does not exceed rupees five lakhs." Therefore, the purchase tax contemplated by section 25-B of the Act read with section 12-B would amount to an amount due for the purpose of section 13. In M.C. No. 16 of 1982 the amount claimed is Rs. 5,10,099.30 and in M.C. No. 12 of 1982 the amount claimed is Rs. 10,10,809.21 and in M.C. No. 5 of 1982 the amount claimed is Rs. 6,29,058 and in M.C. No. 13 of 1982 the amount claimed is Rs. 11,04,800.28. Admittedly, these are the amounts of purchase tax mentioned by the respondent itself in the various returns submitted by it under section 12. So, all the amounts fell due for the purpose of section 13. 5.
6,29,058 and in M.C. No. 13 of 1982 the amount claimed is Rs. 11,04,800.28. Admittedly, these are the amounts of purchase tax mentioned by the respondent itself in the various returns submitted by it under section 12. So, all the amounts fell due for the purpose of section 13. 5. Rule 17(2) of the Sales Tax Rules reads : "If the amount sent by any dealer along with the statement or return is less than the amount of tax payable by him, the assessing authority shall serve upon the dealer a notice in form 5 and the dealer shall pay the sum demanded in the said notice within the time and in the manner specified in the notice." Admittedly, the tax has not been paid in these cases, though the notice in form 5 has been served. 6. Admittedly, the head office of the respondent is situate in Hospet and it is the head office that will have to be treated as registered dealer for the purpose of recovery of tax. Therefore, the court at Hospet alone has got the jurisdiction to entertain the petition. Therefore, the conclusion of the trial court that it has no jurisdiction to entertain these petitions, is liable to be set aside. So far as the amounts claimed are concerned, it is desirable that the sales tax authorities should produce the returns filed by the respondent. It may be that the sales tax authorities on the receipt of the returns are only expected to issue a notice in the prescribed form to the registered dealer. But, in order to avoid mistakes, it is desirable that the returns submitted by the assessee or the xerox copies of the returns submitted by the assessee should be produced before the court in order to verify only the amount. It is not required for any other purpose. No other contention would be available to the respondent in such cases. It is only for the subjective satisfaction of the court in order to find out as to whether the amount claimed is correct or not, the return should be produced by the taxing authority before the court. Only for this limited purpose the matter is sent back to the court below. After such verification, the court may issue a warrant for the correct amount. 7.
Only for this limited purpose the matter is sent back to the court below. After such verification, the court may issue a warrant for the correct amount. 7. According to the learned counsel Sri Rangaraju, the Government had been moved in this case for remission of the amounts or at least for instalments. If the Government passes any order either regarding remission or regarding grant of instalments and if any such order is produced before the court, then the court may consider this aspect also, if any such order is passed by the Government, it is for the tax authorities concerned to take such steps in the matter as deemed fir under the law. 8. Therefore, under these circumstances, the order impugned in all these four cases is set aside and the matter is sent back to the court below for considering the matter in the light of the directions given above. Petitions allowed.