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2006 DIGILAW 386 (MP)

Munnalal Agarwal v. State of Madhya Pradesh

2006-03-13

AJIT SINGH

body2006
Judgment ( 1. ) THIS order shall also finally dispose, of Writ Petition No. 11791/2005 (Ashok Kumar Dubey v. State of Madhya Pradesh and Anr.) and Writ Petition No. 14718/20015 (Arvind Kumar Choudaha v. State of Madhva Pradesh and Anr. ). In Writ Petition Nos. 11790/2005 and 14718/2005 the Petitioners have challenged the imposition of Commercial Tax on the sale and purchase of Singhada, which they submit is exempted under Section 15 of the Vanijyik Kar Adhiniyarn, 1994 (hereinafter referred to as "the Adhiniyam") and specified in the second column of Schedule-I at serial number 16. In Writ Petition No. 11791/2005 the petitioner has prayed for quashing of order dated 2. l2. 2004 Annexure P. 1 passed in revision No. 180/central/2004 by the Additional Commissioner, Commercial Tax, Jabalpur, whereby he has been directed to pay Commercial Tax on the sale and purchase of Singhada for the assessment year 2000-2001. ( 2. ) IN all these petitions the petitioners deal in sale and purchase of Singhada. According to them, they were initially exempted from payment of Commercial Tax by the respondents on Singhada but for the assessment year 2001-2002 they were assessed for Commercial Tax on it on the ground that "dry" Singhada was not exempted under Section 15 of Schedule-I of the Adhiniyam and, therefore, they were liable to pay Commercial Tax on sale and purchase of "dry" Singhada. According to the petitioners Singhada has been notified as tax free goods under Section 15 of the Adhiniyam without any qualification and as such no Commercial Tax was payable on it irrespective of whether it was green (fresh) or "dry" Singhada. ( 3. ) IN the return the respondents have justified the imposition of Commercial Tax on "dry" Singhada by resorting to Schedule-II of Section 9 of the Adhiniyam. Section 9 relates to levy of tax. It provides that the tax shall be levied on the taxable turnover relating to goods specified in Schedule-II. In Part-V of Schedule-II Kirana Goods as the State Government may by notification specify" is entered at serial No. 48. By notification dated 1. 4. 1995 and subsequent notification dated 28-9-2000 of the State Government Singhara has been notified in the list of Kirana Goods at serial No. 148. In Part-V of Schedule-II Kirana Goods as the State Government may by notification specify" is entered at serial No. 48. By notification dated 1. 4. 1995 and subsequent notification dated 28-9-2000 of the State Government Singhara has been notified in the list of Kirana Goods at serial No. 148. According to the respondents since Singhara has been notified in the list of Kirana Goods in Schedule-II of section 9 of the Adhiniyam, the petitioners were liable to pay Commercial Tax on the sale and purchase of Singhada. It is also averred by the respondents that Commissioner, Commercial Tax vide Circular No. 391 dated 29. 1. 2004 has clarified that Singhada specified in Schedule-I related to Green (fresh) Singhara whereas Singhada specified and notified in the list of Kirana Goods in Schedule-II of the Adhiniyam relates to "dried" Singhada. ( 4. ) THE question, therefore, for determination before me is whether Singhada irrespective of its being "dried" is taxable under the provisions of Adhiniyam. ( 5. ) SECTION 15 of the Adhiniyam, which relates to tax free goods, reads as under: 15. Tax Free Goods - (1) No tax shall be payable on the sales or purchases of goods specified in the second column of Schedule-I, subject to the restrictions and exceptions, if any, set out in the corresponding entry in the third column thereof. (2) The State Government: may in respect of any goods, by notification, amend Schedule-I, so as to include therein any goods not already specified or may relax or omit any of the conditions and exception set out in the corresponding entry in the third column thereof. ( 6. ) A reading of Sub-section (2) of Section 15 clearly indicates that the State Government cannot by notification exclude any item mentioned in Schedule-I as tax-free goods. The State Government can only add more goods in Schedule-I or relax any condition or exception contained in Schedule-I Subject to which a particular item is made tax-free. Further, any-notification issued by the State Government for specification of Kirana goods as mentioned in entry number 48 of Schedule-II cannot go against the provisions of the Adhiniyam specifying tax-free goods. Therefore, if Singhada without any qualification is included in Schedule-I the State Government had no power to specify it as included: in Kirana goods at entry number 48 of Schedule-II. ( 7. Therefore, if Singhada without any qualification is included in Schedule-I the State Government had no power to specify it as included: in Kirana goods at entry number 48 of Schedule-II. ( 7. ) SERIAL number 16 of Schedule-I in which Singhada is also one of the exempted goods reads as follows: 16. Fresh vegetables (including potatoes and onion), Ginger (excluding dried ginger), garlic, Singhada, fresh fruits, fresh flowers and sugar cane. ( 8. ) THIS entry clearly indicates that when the intention was to include, something in fresh vegetables, those items such as potatoes and onion are specifically included in the category of fresh vegetables. Therefore, if the intention were to include Singhada as an item of fresh vegetables, as contended by the respondents, it would have been so specified after potatoes and onion. Further Singhada, though an agricultural produce, cannot be said to be a vegetable. Singhada is a crop, which is sown annually and has its root in the bed of tank, which is considered to be agricultural land for the purposes of growing this crop. (See 16 Nagpur Law Journal 277 Ghanshyamsingh Gupta and Ors. Aiyars Advanced Law Lexicon 2005 edition, book No. 14 page No. 4378 published by Wadhwa ). Vegetables are those, items that are normally grown in kitchen gardens (See AIR 1961 SC 1325 Ramavtar Budhaiprasad etc. v. Assistant Sales Tax Officer,. Akola and Anr. ). Perusal of this entry also reveals that where the intention was to exclude a dried item of the goods mentioned it is specifically so provided like ginger "excluding dried ginger". . The word "fresh" which occurs before vegetables cannot be read to qualify Singhada. It. does not even qualify ginger (excluding dried ginger), which occurs before Singhada for the reason that the words "excluding dried ginger" would become redundant. This inference is further supported by the occurrence of the word "fresh" before fruits and flowers. This shows that where the intention was to include only fresh goods in the entry the word "fresh" was specifically mentioned. Singhada, as it occurs in the entry at serial nunber 16, is without any qualification and will include "dried" Singhada. ( 9. ) THE above conclusion is also supported by the legislative history of Schedule-I. Between, 1-4-1995 and 31-3-1999 Singhada was separately shown as tax-free goods at serial No. 93. Singhada, as it occurs in the entry at serial nunber 16, is without any qualification and will include "dried" Singhada. ( 9. ) THE above conclusion is also supported by the legislative history of Schedule-I. Between, 1-4-1995 and 31-3-1999 Singhada was separately shown as tax-free goods at serial No. 93. There could be no doubt that Singhada was then entirely exempt from tax. Later, it was clubbed with (sic) goods as shown in serial No. 16 quoted above. But by this change, it cannot be held that the intention was to limit the exemption to green (fresh) Singhada. Had that been the intention, be legislature would have so clearly indicated. The apparent, reason for removing Singhada as separate entry and including it along with vegetables, fresh fruits, etc. in the entry at serial No. 16 is (sic) to club together at one place all agricultural and horticultural produce which were intended to be exempted from tax. It would be against all rules of construction to read word fresh or green before Singhada as entered in serial No. 16. The Commissioner, Commercial Tax, had no authority to modify the full import of a tax-frequentry in Schedule-I. His clarification vide circular No. 391 dated 29-1-2004 is, therefore, of no effect. ( 10. ) FOR the reasons (sic) above, my conclusion is that Singhada without any qualification (sic) other words both green (fresh) and dried Singhada are (sic) levy of tax. The State Government clearly acted beyond its authority in notifying Singhada in Schedule-11 as an item of Kirana (sic) liable to tax. To that extent, the notification is invalid. ( 11. ) THE petitions are allowed. The petitioners shall not be liable for payment of tax on the sale and purchase of Singhada irrespective of its being green (fresh) or dried.