COMMISSIONER OF SALES TAX, INDORE, M. P. v. EMAR INDUSTRIES.
2005-03-24
A.M.SAPRE, ASHOK KUMAR TIWARI
body2005
DigiLaw.ai
ORDER A. M. SAPRE, J. - This is a sales tax reference made at the instance of the Commissioner, Commercial Tax, under section 44(10) of the M.P. General Sales Tax Act, 1958 (since repealed), by the Board of Revenue in R.A. No. 76-PBR/91 which in turn arises out of an order dated March 25, 1991, passed in Appeal No. 201/3/86 to answer the following question of law : "Whether, under the facts and circumstances of the case, the Tribunal was justified in holding that the stand of sewing machines is a part and parcel of such machines and whether it would be taxable at the same rate applicable to sewing machines ?" Heard Shri Anand Pathak, Deputy Government Advocate for the applicant and Shri P. M. Choudhary, learned counsel for the non-applicant. The short question that arises for consideration in this sales tax reference is, whether "stand of sewing machine" is a part and parcel of sewing machine so as to tax the same, i.e., "stand" at the same rate which is applicable to sewing machine ? In the opinion of Board of Revenue the stand of sewing machine is part and parcel of sewing machine and hence, it is liable to be taxed at the same rate which is applicable to sewing machine, i.e., 5 per cent. We agree with the view so taken by the Board of Revenue as in our humble view, it is legal and proper. It is not in dispute that the stand so manufactured is only meant for sewing machine and nothing else. In other words, the structure of stand manufactured is such that it is only used or one may say can be used for running the sewing machine. It can also not be disputed that in order to run the sewing machine comfortably, one needs the stand. In view of these two material factors which undoubtedly have bearing to decide the question involved, one can have no hesitation in coming to a conclusion that stand is a part of sewing machine and secondly, it being a necessity for running the machine effectively, the same has to be taxed at the rate which is applicable to the sewing machine, i.e., concessional rate at 5 per cent in terms of Notification dated April 7, 1982 [(1982) 15 VKN 15 statute].
Learned counsel for the State contended that the rate of tax to be applicable to stand is that which is prescribed for goods falling in residuary entry, i.e., 10 per cent. In other words, the submission is that since no specific entry is applicable to stand in any of the Schedule and hence, it is liable to be taxed as per rates prescribed in residuary entry (10 per cent). We do not agree. It is not in dispute that the State has issued a notification by which a concessional rate of tax is prescribed for sewing machine, i.e., 5 per cent. If the submission of learned counsel for State is accepted then, it will defeat the very purpose of granting concessional rate of tax to sewing machine. In other words, it can never be the intention of Legislature to tax main item, i.e., sewing machine at the concessional rate of tax at 5 per cent whereas impose a tax on its one part, i.e., stand at 10 per cent. This defeats the very purpose of granting concessional rate of tax. In our opinion, since there is no specific entry prescribed for taxing stand in the Schedule and secondly, it being a part and parcel of sewing machine, has to be taxed at the same rate of tax at which sewing machine is being taxed. Accordingly and in view of aforesaid discussion, we answer the question referred to us against the Commissioner of Commercial Tax/Sales Tax and in favour of assessee/dealer. No costs. Reference answered in the affirmative.