Shaju v. State of Kerala — 1992 DIGILAW 209 (KER)

JUDGMENT 1. The facts of these cases are short and simple, and admit of no dispute. The question is one of law, relating to the interpretation of the Explanation to S.2(xxvi) and S.8 of the Kerala General Sales Tax Act, 1963 (the Act). We shall extract the provisions here for the purpose of convenience. "2(xxvi). "total turnover" means the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax, including the turnover of purchase or sale in the course of inter state trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India: Explanation:- Notwithstanding anything contained in any other provision of this Act, but subject to the provisions of S.8 in the case of goods which are taxable at the point of last purchase in the State by a dealer liable to tax under S.5 and which arc held as closing stock on the last day of any financial year, the amount for which such goods were purchased by the dealer shall be deemed also to be a part of his total turnover for the subsequent year or each of the subsequent years until such goods arc either sold by him in the State or such purchase acquires the character of last purchase in the State in the hands of such dealer and in case such purchase acquires the character of last purchase in the State in the bands of such dealer, the turnover in respect of such purchase shall be liable to tax in the year in which the purchase acquires the character of last purchase; * * * * 8. Stage of levy of taxes in respect of imported and exported goods: Where in the case of any goods tax is leviable at one point in a series of sales or purchases, such series shall, (a) in the case of goods imported into the State either from outside the territory of India or from any other State in India, be deemed to commence at the stage of the sale or purchase effected immediately after the import of such goods; (b) in the case of goods exported out of the State to any place outside the territory of India or to any other State in India, be deemed to conclude at the stage of the sale or purchase effected immediately before the export of such goods." We may at once mention that the words "but subject to the provisions of S.8" were absent in the Explanation as originally enacted, and wore inserted by the Amendment Act 6 of 1988 with effect from February 19,1988. 2. The appellants in the writ appeals and the petitioners in the writ petition and the tax revision case (hereinafter referred to as the assessees) are dealers in arecanuts and / or pepper, which are goods liable to tax under the Act at the point of the last purchase in the State. Part of these goods purchased by the assessees are despatched to their agents outside Kerala, mostly in North India, for sale on consignment basis. Part of these consignments which remains unsold at the end of the year is held in stock with the agents for and on behalf of the assessees, at the close of the assessment year, namely 31st March. The question whether such closing stock was liable to be taxed at the hands of the last purchaser before that date was considered by the Supreme Court in the decision in State of Madras v. Narayanaswami Naidu (1968) 21 STC page 1. The court overruled the decision of this court in Abdulsalam Rowther v. State of Kerala (1961) 12 STC 98 and held that the stock in hand at the close of the assessment year could not be said to have acquired the quality of last purchase in that year because the assessee may in the ensuing year sell it or might himself consume it or the goods might get destroyed. The purchase of the goods held in stock could not therefore be brought to tax. 3. Apparently to give effect to this judgment and to ensure that revenue due to the State docs not escape assessment the State legislature introduced the Explanation to S.2(xxvi) of the Act defining "total turnover". We have already extracted the Explanation which as it stood originally prior to the amendment by Act 6 of 1988, provided that the amount for which goods held as closing stock at the end of the financial year were purchased shall be deemed to be part of the total turnover of the dealer in the subsequent year and years until the goods were either sold, or acquired the quality of last purchase, and in that event, was liable to tax in that year in which it acquired the quality of last purchase. The evident intent of this provision was to keep track of these goods in the hands of the purchasing dealer, whether within or without the State till such time as the purchase became assessable after acquiring the quality of last purchase. 4. Question arose at the instance of assessees, like those before us, who had consigned their goods outside the State, whether the purchases of the closing stock of goods as on 31st March, held by agents outside the State, could be brought to tax as having attained the quality of last purchase before that date. The Sales Tax Appellate Tribunal upheld the contentions of the assessees that these purchases could not be treated as having attained the quality of last purchase, merely because they were situated outside the Stale, and therefore they were liable to tax only in that year in which the quality of last purchase was attained by sale consumption or otherwise. This view of the Tribunal was upheld by a Bench of this court in Deputy Commissioner of Sales Tax v. Keveyam & Co. (1986) 63 STC 387 . This view of the Tribunal was upheld by a Bench of this court in Deputy Commissioner of Sales Tax v. Keveyam & Co. (1986) 63 STC 387 . The Bench held: "There should not be any distinction between the closing stock of the goods held by an assessee inside the State and outside the State as the goods sent to his agents outside the State on consignment basis still continued to be the goods of the assessee and as the assessee had got the power of disposal, even over such goods sent outside the State, it was open to the assessee to recall the goods at any time and deal with it in any manner. Therefore, the goods which moved outside the State to be held by the agents of the assessee for consignment sales did not become eligible to tax." 5. With the express object of overcoming the effect of this decision, the State legislature passed Act 6 of 1988 which amended the Explanation to S.2(xxvi) by introducing therein the words "but subject to the provisions of S.8". In other words, the width of the non obstante clause with which the Explanation opened was narrowed down and it was made subject to the provisions of S.8 of the Act. The Statement of Objects and Reasons for Act 6 of 1988 staled inter alia as under: "In the case of goods taxable at the point of last purchase in the State there are chances that the dealers may open branches at different places in the State and effect direct purchases from producers to avoid turnover tax. Moreover the existing intermediary dealers may change themselves as agents of the last purchasers to avoid turnover tax. The commodities in respect of which this could happen are rubber, tea, pepper, arecanut and dried ginger. Government decided to amend the Act suitably so as to extend the liability to pay turnover tax to the taxable point also in respect of these items. According to clause (b) of S.8 of the Kerala General Sales Tax Act, 1963 the point of levy of purchase tax will conclude where the goods are exported outside the State. The Kerala High Court in its decision reported in (1986) 63 STC 387 has held that the closing stock of goods held outside the State will not acquire the character of last purchase till it is sold. The Kerala High Court in its decision reported in (1986) 63 STC 387 has held that the closing stock of goods held outside the State will not acquire the character of last purchase till it is sold. Under the cover of this decision, many dealers claim that their stock of goods held outside the State will not acquire the character of last purchase until the goods are sold and as such they are not liable to pay tax on such goods. As a result, Government is losing huge amount of tax. To overcome this situation Government decided to amend the Act suitably." 6. This amendment came into force on 19-2-1988. Assessments were made on the assessees before us based on the amendment, bringing to tax the amount of the purchases representing the closing stock of goods situate outside Kerala in the hands of their agents. The objection raised by the assessees that these purchases could not be brought to tax despite the amendment was not accepted. The assessees challenged the assessments in writ petitions filed before this court under Art.226 of the Constitution, which having been dismissed by the learned Single Judge, have resulted in the writ appeals. The main judgment of the learned Single Judge is reported as Narayanan v. State of Kerala, 1990 (2) KLT 336 . O.P.No.668of 1991 heard alongwith these appeals, is a writ petition filed by one of such assessees challenging the monthly assessments made on him for 1990-91. The petitioner in TRC No.151 of 1991 has similarly been assessed on the purchase value of the closing stock of his goods held outside. He challenged the assessment by way of departmental appeal and second appeal. The Appellate Tribunal negatived his contentions and upheld the levy on the basis of the decision in Narayanan's case. The Tax Revision Case challenges the order of the Tribunal. 7. The question raised in all these cases is the same and therefore they have been taken up together. He challenged the assessment by way of departmental appeal and second appeal. The Appellate Tribunal negatived his contentions and upheld the levy on the basis of the decision in Narayanan's case. The Tax Revision Case challenges the order of the Tribunal. 7. The question raised in all these cases is the same and therefore they have been taken up together. We may state even at the outset that though it was the constitutionality of the amendment by Act 6 of 1988 that had been primarily in challenge in the writ petitions, counsel for the assessees did not persist in that contention because of the decision of this court (of a learned single Judge) in Hill Produce Corporation v. State of Kerala, 1990 (2) KLT 436 , which was affirmed by a Division Bench in the decision in Hill Produce Corporation v. State of Kerala, (1991) 80 STC 444 . That question does not therefore arise for consideration before us. In the circumstances, we would have been inclined to relegate the parties before us to agitate their claims by resort to the statutory remedies available to them, but the learned Single Judge has chosen to deal with the issues arising for consideration, which as stated at the outset are pure questions of law. We therefore feel that it will be inappropriate for us to relegate the parties to the statutory remedies at this stage particularly when the tax revision case is also before us where the questions have necessarily to be gone into. 8. Counsel for the assessees raised a two-fold contention. Firstly, the submission was that the amendment by Act 6 of 1988 has not achieved the desired result of bringing to lax the closing stock of goods held outside the State as on 31st March. It is stated that though the amendment has made the Explanation to S.2(xxvi) subject to the provisions of S.8, that section on its language is not sufficient to impute the time of attainment of the quality of last purchase on the purchase of the goods held as closing stock outside the State by the assessee or his agent and therefore the amendment to the Explanation to S.2 (xxvi) making it subject to S.8 has not achieved the intended object. The submission is that the sole object of S.8 is to identify the last purchaser and not to define as to when the purchase in question acquires the quality of last purchase. Counsel refers, to the decision of the Andhra Pradesh High Court in Guduthur Thimmappa & Sons v. State of Andhra Pradesh (1964) 15 STC 299 and of the Madras High Court in Rallis India Ltd. v. State of Tamil Nadu, (1974) 34 STC 326 , as authority for this proposition. The second limb of the argument is that the amending Act 6 of 1988 has no retrospective operation, so as to attract liability in the assessments for the years 1986-87 and earlier. 9. Incidentally it was also submitted, as subsidiary to the first of the above contentions, that S.8 of the Act cannot, in any event apply because the relevant clause, namely clause (b) refers to goods exported out of the State, and according to counsel, export implies export outside India and not transport of goods across the frontiers of Kerala to other States in India. 10. We may reject this last contention without much ado. Whatever be the meaning of the word export otherwise, it is obvious from the section that it is intended to comprehend not merely export of goods outside the country, but also transport of goods from Kerala to other States in India. It is therefore unnecessary to exercise ourselves on the meaning of the expression 'export' when the provision itself is clear on the point, that it takes in consignment of goods to other States in India. 11. We shall deal with the main points seriatim. We have already given the legislative history behind the introduction of the Explanation to S.2(xxvi) as also the amendment thereto. Having regard to the statement of objects and reasons to Act 6 of 1988 which we have extracted earlier, it cannot be doubted that the express object of the amendment was to get over the effect of the decision of this court in Keveyam & Co., and to enable assessment of the purchases of the goods held as closing stock outside the State in the year of purchase itself, instead of relegating such assessments to future years as under the Explanation before the amendment. That is why the ambit of the non obstante clause in the Explanation which swept away every other provision in the Act was diluted by making an exception in favour of S.8 and making it subject to that section. The question is whether the legislature has failed to achieve this object despite the amendment. 12. It is true that by virtue of the decision in Narayanaswamy Naidu (1968) 21 STC 1 , a distinction is drawn between a purchase and a last purchase. When the goods are liable to tax only at the point of last purchase a purchase is not liable to tax unless and until it attains the quality of last purchase. We have already indicated that the Explanation to S.2(xxvi) was introduced with a view to give effect to this decision, at the same time securing the interests of the revenue by making the closing stock within the reach and knowledge of the department by treating the purchase price thereof as part of the total turnover in the subsequent years till the goods are sold, consumed, or otherwise disposed of. The Explanation in its pristine form applied notwithstanding anything contained in any other provision of the Act which included S.8. The Explanation limited the levy to the year in which the purchase acquired the quality of last purchase (as under the decision in Narayanaswamy Naidu), and this had to be decided de hors S.8 because of the wide and all embracing sweep of the non obstante clause. The fiction created by S.8 had to be eschewed from application. This state of affairs was altered by Act 6 of 1988 by making the Explanation subject to S.8. What sub-s.(b) of S.8 provides is that in the case of goods on which tax is leviable only at one point in a series of sales or purchases, and such goods are exported out of the State to any place outside the territory of India or to any other State in India, the series of purchases shall be deemed to conclude at the stage of the sale or purchase effected immediately before the export of such goods. The fiction implicit in this provision is that the last purchase of goods exported out of the State is deemed to have been effected when the sale or purchase immediately preceding the export was made. The fiction implicit in this provision is that the last purchase of goods exported out of the State is deemed to have been effected when the sale or purchase immediately preceding the export was made. At the time this court decided the case in Keveyam & Co., S.8 was out of bounds in view of the wide sweep of the non obstante clause in the Explanation. The question whether a purchase was the last purchase or not had to be considered without the aid of the fiction in S.8. But the positionstandsaltcredbyAct6 of!988. The sweep of the non obstante clause has been whittled down by making the Explanation subject to the provisions of S.8. In otherwords, after Act 6 of 1988 the question whether a particular purchase was the last purchased or not has to be decided in the light of the provisions contained in S.8. We cannot agree with counsel that S.8 lays down only the stage of last purchase and not the time at which the purchase acquires the quality of last purchase. The assessees' contention that despite the amendment by Act 6 of 1988, the position continues to be the same as it was before the amendment is not, in the circumstances, acceptable. The construction propounded by the assessees will frustrate the very express intendment of the legislature in enacting Act 6 of 1988. 13. We do not find anything in the decisions relied on by the assessees supporting their submissions. They do not specifically deal with the question as to when a purchase becomes the last purchase. We cannot read those decisions as militating against the view that we have taken. The first point raised by counsel is therefore overruled. 14. The second point raised is that Act 6 of 1988 has no retrospective effect so as to affect assessments made for the years prior to 1986-87. Radhakrishna Menon, J. has in the impugned judgment (Narayanan v. State of Kerala, 1990 (2) KLT 336 ) held that the amendment was enacted only to clarify the object with which S.8 was enacted and therefore it applied for the past years as well. This is what he said in Para.6 of his judgment: "Yet another argument of the learned counsel for the petitioners is that the ordinance has no retrospective operation. This is what he said in Para.6 of his judgment: "Yet another argument of the learned counsel for the petitioners is that the ordinance has no retrospective operation. The question whether the ordinance is retrospective or prospective docs not arise because what is sought to be achieved by the amendment is not to enact S.8 for the first time but .only to clarify the object with which S.8 was enacted. This clarification was necessitated on account of the Division Bench ruling mentioned above. The Full Bench ruling in Season Rubbers v. State of Kerala, (198l KLT 682 : 1981 (48) STC 256 ) had made it clear that in cases like the one on hand, taxable event is determined on the occurrence of the event which determines the question whether or not the purchase would be the last purchase. This event here is the transport of the goods from this State to some other State on consignment basis. The above argument therefore is without any substance." 15. We may mention that under S.1 of the Amendment Act 6 of 1988, S.4 alone was made retrospective from 1-7-1987; the remaining provisions of the Amendment Act were to come into force prospectively with effect from 19-2-1988. The effect of the decision in Keveyam & Co. was that the value of the closing stock whether within or without the State was not liable to be taxed unless and until the purchases attained the quality of last purchase. A statute is not to be treated as retrospective in the absence of express provision or necessary intendment. The question is whether the Act in question is retrospective, or merely clarificatory in which case it affects transactions past and future. 16. Radhakrishna Menon, J. has held that Act 6 of 1988 was intended to be clarificatory. No reasons have been stated. The learned Judge has proceeded as if the amendment was to S.8, and therefore stated that what is sought to be achieved by the amendment is not to enact S.8 but only to clarify the object with which S.8 was enacted. The amendment is to the Explanation to S.2(xxvi) which made it expressly subject to S.8 of the Act. The position till then was that the Explanation was not subject to any other provision in the Act including S.8. The amendment is to the Explanation to S.2(xxvi) which made it expressly subject to S.8 of the Act. The position till then was that the Explanation was not subject to any other provision in the Act including S.8. That position of the law was expressly changed by making the Explanation subject to the provisions of S.8. A clear change in the law was intended. Thereafter, the last purchase of goods exported outside the State had to be decided with reference to S.8, without reference to the provisions contained in the last part of the Explanation. We cannot treat such an enactment which brings about such a drastic change as clarificatory, because a clarificatory law is intended only to clarify as to what the law was earlier. In fact, the declaration of the law before Act 6 of 1988 was that contained in the decision in Keveyam & Co. We have already pointed out that the very object and reason of the Amendment shows that this position of the law was intended to be superseded by legislative action. We therefore unable to agree with Radhakrishna Menon, J. that the Act in question was clarificatory. The decision in Season Rubbers v. State of Kerala (1981) 48 STC 256 on which he relied docs not support his view. There the question was about the rate of tax payable on the purchase, whether tax was leviable at the rate prevailing on the dale of the purchase or on the date on which the qualify of last purchase was attained. The court held that though there was difference between a purchase and the last purchase, once the taxable event occurred, it related back to the purchase and therefore the rate prevailing on the date of the purchase was that applicable, and not the one which prevailed later. This decision docs not help us to hold that Act 6 of 1988 is clarificatory and declaratory, and not amendatory. 17. A right had inhered in all the assessees before us to have the closing stock assessed only on the date on which the quality of last purchase was attained and not in the year in which it remained as closing stock. There is nothing in Act 6 of 1988 to indicate that .this right of theirs has been divested. 17. A right had inhered in all the assessees before us to have the closing stock assessed only on the date on which the quality of last purchase was attained and not in the year in which it remained as closing stock. There is nothing in Act 6 of 1988 to indicate that .this right of theirs has been divested. On the other hand, the indication in Act 6 of 1988 is clear that, it was intended to operate only prospectively from 19-2-1988, in which case it will affect only the closing stock as on 31-3-1988 and subsequent years and not the closing stock of the prior years. We have therefore to uphold the contention of the assessees before us that the amendment lakes effect only for the year 1987-88 and subsequent years and that it will not affect the closing stock of the prior years. Needless to say, any goods remaining as closing stock on 31-3-1988 whether it be the closing stock carried from a previous year, or of that year alone, will necessarily be liable to tax during that year, as the last purchase of that year. 18. The assessments in these cases in so far as they relate to the assessment years, 1984-85,1985-86 and 1986-87 have to be modified in the light of the above observations by deleting the amount of the purchases of the closing stock of the goods held by the assessees outside the State from the assessment. 19. In the view that we have taken, Writ Appeal No.701 of 1990 which pertains to the assessment year 1987-88 as also O.P.No.66S of 1991 in which the assessment challenged is of the year 1990-91 have both to be dismissed. The assessees therein arc not entitled to any relief. 20. So far as the other Writ Appeals and the Tax Revision Case are concerned, Writ Appeal Nos. 696, 699 and 700 of 1990, 10 of 1991 and T.R.C.No.151 of 1991 concern assessments for the year 1985-86, Writ Appeal No.709 of 1990 for the year 1984-85 and Writ Appeal Nos. 697and 698 of 1990 for the year 1986-87. Apart from the declaration of invalidity of Act 6 of 1988, the prayer made in all these Writ Appeals is to restrain collection of the tax demanded for these years under the impugned assessments. It is not possible to grant this relief as such. 697and 698 of 1990 for the year 1986-87. Apart from the declaration of invalidity of Act 6 of 1988, the prayer made in all these Writ Appeals is to restrain collection of the tax demanded for these years under the impugned assessments. It is not possible to grant this relief as such. There is no prayer for quashing the assessments to any extent. But this court is entitled to mould the relief as held by the Supreme Court in Dwarkanath v. Income, Tax Officer, AIR 1966SC81. The assessees are entitled to relief to the extent of modifying the assessments in so far as they relate to the closing stock of the goods held outside the State. The appropriate relief in the Writ Appeals will therefore be to modify the assessments impugned by deleting the amount of purchase of the closing stock of goods held outside the State as on March 31st of the years in question. The order of the Appellate Tribunal impugned in the Tax Revision Case in so far as it relates to the closing stock of goods of the nature mentioned above has also got to be set aside. 21. We therefore dispose of the cases before us as follows: W.A.Nos. 696, 697, 698, 699, 700 and 709 of 1990, and 10 of 1991 and T.R.C.No.151 of 1991 arc allowed in part. There will be a direction to the assessing authority in these cases to modify the orders of assessment marked Ext. P1 in W.A.Nos. 696, 697, 698 and 699 of 1990, Ext. P4 in W.A.No.700 of 1990 and Ext. P9 in W.A.No.709 of 1990, Annexure II in W.A.No.10 of 1991 and that impugned in T.R.C.No.151 of 1991 by deleting the amounts for which the closing stock of goods kept with the assessees' agents outside the State as on March 31st of the relevant assessment years were purchased, from the assessment. W.A.No.701 of 1990 and O.P.No.668 of 1991 arc dismissed. There will be no order as to costs in these cases.