Research › Browse › Judgment

Karnataka High Court · body

1998 DIGILAW 624 (KAR)

BOOK CENTRE PRESS v. ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES, BELGAUM.

1998-09-10

ASHOK BHAN, S.R.RAJASEKHARA MURTHY

body1998
JUDGMENT ASHOK BHAN, J. - Appellant herein being aggrieved by the common suo motu revisional order passed by the respondent, Additional Commissioner of Commercial Taxes, Belgaum Zone, Belgaum (hereinafter referred to as the "revisional authority") under section 22-A of the Karnataka Sales Tax Act, 1957 (for short, "the Act") in relation to the periods 1986-87 and 1989-90 has filed these appeals under section 24 of the Act against the revisional order. The facts occasioning this appeal briefly stated are : 2. Appellant herein is engaged in the execution of job-work of printing and supplying of printed materials according to specific orders placed by the various customers. In relation to the period 1986-87, the proceedings were taken up under section 12-A of the Act for reassessment to tax a sum of Rs. 1,47,740 as representing sales of printed materials which had escaped levy of tax in the original assessment as completed. Also, in relation to the period 1989-90, reassessment proceedings were taken up and the assessing authority sought to levy tax in respect of amounts realised by the appellant regarding the job-work of printing and supplying of printed materials according to the specifications of the customers. The amount so realised by the appellant for the two periods was sought to be treated as representing the turnover of sales exigible to levy of sales tax and the appellant assailed such action of the assessing authority to levy tax on such amount realised by the appellant relating to the execution of job-work of printing. 3. Assessing authority overruled the objections filed by the appellant and passed the reassessment order for the period 1986-87 as well as the assessment order for the period 1989-90. The assessing authority brought to tax the amounts realised by the appellant in respect of execution of job-work of printing as referred to above. Copies of the reassessment order passed under section 12-A and assessment order passed under section 12(3) for the periods 1986-87 and 1989-90 are attached as annexures A and B. 4. Aggrieved by the said orders of reassessment and assessment passed respectively for the periods 1986-87 and 1989-90, the appellant preferred appeals before the jurisdictional first appellate authority and assailed the legality of the said orders. Aggrieved by the said orders of reassessment and assessment passed respectively for the periods 1986-87 and 1989-90, the appellant preferred appeals before the jurisdictional first appellate authority and assailed the legality of the said orders. In appeal, it was contended that the assessing authority was not right/ correct in law in levying tax and it was urged that the appellant had executed the job-work of supplying of printed materials against specific orders and such printed materials were not normally available readily in the market for sale as those were specifically meant for particular persons for whose sake the work was undertaken. It was also contended that the execution of job-work undertaken by the appellant was governed by section 5-B of the Act and the question had to be determined with reference to the said provision alone. First appellate authority passed a common appellate order dated September 23, 1992 a copy of which has been attached as annexure C. It was held that the appellant had undertaken the job-work of printing and supplying of the materials at the behest of various companies and persons against specific orders and such materials have no independent commercial value and as such, the appellant's execution of the job-work squarely falls under section 5-B of the Act. It was further held that since the labour charges are not separately shown in the bills, 30 per cent of reduction should be given as representing labour portion and balance being subjected to tax. In other words, it was held that appellant's case is governed by section 5-B of the Act and the liability thereunder could be determined by giving deduction of 30 per cent towards labour charges since the same were not forthcoming readily. 5. Subsequent to the said appellate order being so passed by the first appellate authority, appellant made an application under section 25-A of the Act seeking rectification of the appellate order, annexure C, on the ground that printing and block making have been brought under "Sixth Schedule" effective from April 1, 1992 and as such, earlier to the said period, the activity of printing was not exigible to levy of tax under section 5-B of the Act. The same had to be exempted. On such grounds, it was submitted that the entire receipts realised by the appellant on account of job-work had to be exempted from levy of sales tax. The same had to be exempted. On such grounds, it was submitted that the entire receipts realised by the appellant on account of job-work had to be exempted from levy of sales tax. First appellate authority accepted the contention of the appellant and passed a rectification order under section 25-A of the Act, a copy of which is attached and marked as annexure E. First appellate authority noticed the apparent mistake and rectified its earlier appellate order by holding that the question of deduction of labour amount does not arise at all as the said job-work of printing was not exigible to levy of tax under section 5-B of the Act earlier to April 1, 1992. The entire receipts realised by the appellants were held to be entitled to exemption from levy of sales tax. The order, annexure C, was ordered to be rectified in respect of periods 1986-87 and 1989-90. 6. Subsequently, the revisional authority initiated proceedings under section 22-A of the Act seeking to set aside the common appellate order dated September 23, 1992 (annexure C) passed by the first appellate authority in the appellant's case and to restore the reassessment order and the assessment orders relating to the periods 1986-87 and 1989-90 respectively. It did not take notice of the order of rectification passed by the first appellate authority dated January 18, 1993, annexure E. A copy of the notice issued under section 22-A of the Act by the said revisional authority has been attached as annexure F. In the course of the notice, the revisional authority observed thus : "On appeal the appellate authority allowed the appeal directing the assessing authority to allow 30 per cent reduction from the total receipts declared and remaining turnover be subjected to tax at appropriate rate under section 5-B on the ground that the sales of printed materials by printer is a works contract under section 5-B and not outright sale. Therefore, the order of the appellate authority is erroneous and prejudicial to the interest of Government revenue, since the printing and block making is introduced with effect from April 1, 1992 vide Serial No. 31 of the Sixth Schedule under section 5-B of the Karnataka Sales Tax Act and not prior to April 1, 1992. Therefore, the order of the appellate authority is erroneous and prejudicial to the interest of Government revenue, since the printing and block making is introduced with effect from April 1, 1992 vide Serial No. 31 of the Sixth Schedule under section 5-B of the Karnataka Sales Tax Act and not prior to April 1, 1992. Therefore in exercise of the powers vested under section 22-A of the Karnataka Sales Tax Act, 1957, it is proposed to set aside the appeal order cited at (3) above and restore the orders cited at references (1) and (2)." 7. On the revisional proceedings being so taken up and the notice being issued by the revisional authority, the appellant preferred his objections against the said notice. Copy of the objections preferred by the appellant has been attached as annexure G. It was contended by the appellant that there was no valid or justifiable grounds to take up the revisional proceedings and the first appellate authority had rightly held that appellant is liable to be dealt with under section 5-B of the Act. Revisional authority however overruled the objections filed by the appellant and passed the common revisional order, annexure H, setting aside the common appellate order dated September 23, 1992, annexure C, passed by the first appellate authority and restored the reassessment order and the assessment order. Revisional authority did not take notice of the order of rectification, annexure E, passed by the first appellate authority. Appellant under a mistaken belief that the appeal was maintainable against the order passed by the revisional authority filed two appeals before the Karnataka Appellate Tribunal which were dismissed by the Tribunal as not maintainable. Copy of the appellate order is marked as annexure J. Thereafter, the appellant preferred the present appeals under section 24 of the Act against the suo motu revisional order passed by the revisional authority along with an application for condonation of delay in preferring the appeals to this Court. The delay was condoned and the appeals were entertained. 8. Copy of the appellate order is marked as annexure J. Thereafter, the appellant preferred the present appeals under section 24 of the Act against the suo motu revisional order passed by the revisional authority along with an application for condonation of delay in preferring the appeals to this Court. The delay was condoned and the appeals were entertained. 8. The impugned revisional order is untenable in law inasmuch as the revisional authority has set aside the appellate order, annexure C, without taking notice of the subsequent order passed by the first appellate authority, annexure E, rectifying its earlier order, annexure C. The order, annexure C, could not be deemed to be in existence as the same had been revised by a rectification order passed by the same authority. The impugned order is vitiated on this account. 9. Even on merits we find that the revisional authority had initiated the revisional proceedings seeking to set aside the appellate order on the sole ground that the printing and block making is introduced in Sixth Schedule with effect from April 1, 1992 and as such the appellate order was sought to be considered as erroneous warranting revisional interference. The revisional authority is not correct in law in doing so. The revisional authority has overlooked the impact of entry 55 of the Fifth Schedule to the Act. As per the Fifth Schedule and entry 55 thereto, all such transfer of property in goods involved in the execution of works contract other than those specified in the Sixth Schedule are exempt from levy of tax. Entry 55 of the Fifth Schedule to the Act reads : "55. Transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract other than those specified in the Sixth Schedule." Thus, it may be noticed that entry 55 indicates that all such works contract which are not specified in the Sixth Schedule to the Act would be exempt from levy of tax under section 5-B of the Act. The "works contract" though, was given effect to from April 1, 1986 by introducing Sixth Schedule read with rule 6, clause 21, the printing and block making was not then specified. This was specified only with effect from April 1, 1992. The "works contract" though, was given effect to from April 1, 1986 by introducing Sixth Schedule read with rule 6, clause 21, the printing and block making was not then specified. This was specified only with effect from April 1, 1992. Tax on works contract of printing and block making would thus not be taxable prior to April 1, 1992 by virtue of entry 55 of the Fifth Schedule to the Act. When examined in the light of the said provision of the Act, the impugned order becomes totally untenable. 10. For the reasons stated above, these appeals are accepted and order passed by the revisional authority under section 22-A of the Act is set aside with the result that order of first appellate authority is restored. Appeals allowed.