Balan Fine Arts vs Joint Commissioner III (SMR) of Commercial Taxes, Chennai and others

P. Jyothimani, J.—The writ petition is filed challenging the impugned order of the first respondent dated August 18, 2000, by which, by exercising his suo motu revisional power against the order of the Appellate Assistant Commissioner (Commercial Taxes), dated February 7, 1995 in respect of the assessment year 1992-93, the first respondent has set aside the order of the Appellate Assistant Commissioner (Commercial Taxes) and restored the order of the assessing officer. The assessee was assessed by the Commercial Tax Officer, Sivakasi, on a total and taxable turnover of Rs. 5,62,233 and Rs. 5,62,233, respectively for the year 1992-93 under the Central Sales Tax Act, 1956. The assessing officer assessed the turnover of Rs. 1,73,190 relating to sales of text books, rejecting the claim of the assessee for exemption, observing that the goods sold by the dealer are printed materials and not reading books.

Aggrieved against the said order of the assessing officer, the dealer has preferred an appeal before the Appellate Assistant Commissioner (Commercial Taxes), Virudhunagar, who, while setting aside the order of the assessing officer, has given a factual finding that the assessee is a dealer and they have sold reading books and, therefore, granted exemption.

Thereafter, by the impugned proceedings, the first respondent, exercising his suo motu revisional power, has set aside the exemption granted by the Appellate Assistant Commissioner (Commercial Taxes), against which the present writ petition has been filed.

It is the contention of the learned counsel for the petitioner that when there is a factual finding that the assessee is a dealer selling reading books, it is entitled to exemption as per the Government order dated January 6, 1969. It is his submission that the judgment of this court in State of Tamil Nadu Vs. Papco Offset Printing Works, relied upon by the first respondent is not applicable to the present case.

Per contra, it is the contention of the learned Special Government Pleader that a reading of the judgment of this court in State of Tamil Nadu Vs. Papco Offset Printing Works, would show that if a person is only a printer, inasmuch as the sale is not proved by him, he cannot be treated as a dealer and, therefore, he cannot be granted exemption.

We have heard the learned counsel for the petitioner as well as the learned Special Government Pleader and given our anxious consideration to the issue involved in this case.

As stated above, the Appellate Assistant Commissioner (Commercial Taxes), while reversing the order of the assessing officer, has given a factual finding to the effect that it is an admitted fact that the assessee is a dealer, with the following operative portion :

5.....The notification does not restrict the exemption to a class of people like publishers, retail sellers. But, it is applicable to sales by ''any dealer''. Thus, the exemption has a wider meaning. Admittedly, the appellants are ''dealers''. They have sold reading books. Therefore, it is held that the appellants are eligible for exemption as per the abovesaid notification.

The notification issued in G. O. P. No. 40, Revenue, dated January 6, 1969 grants exemption in respect of tax payable on the sales of reading books, including text books, by any dealer. The notification is as follows :

Sales of reading books including text books--Exemption

(Madras)

(G. O. P. No. 40, Revenue, January 6, 1969)

No. 37 of 1969.--In exercise of the powers conferred by sub-section (1) of section 17 of the Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959), and in supersession of the Revenue Department Notification S. R. O. No. A-4778 of 1957, dated the July 27, 1957 published at page 1318 of Part I of the Fort St. George Gazette, dated the 31st July, 1957, the Governor of Madras hereby makes the exemption in respect of the tax payable under the said Act on the sales of reading books including text books by any dealer.

Inasmuch as the notification is very clear that it grants exemption to a dealer selling reading books, on the factual finding of the Appellate Assistant Commissioner (Commercial Taxes), there is no difficulty to conclude that the notification applies to the case of the petitioner.

The learned Special Government Pleader placed reliance on the judgment in State of Tamil Nadu Vs. Papco Offset Printing Works, That was a case where this court has found that the assessee was a printer of certain materials according to the specification made by the publishers and recovered the cost of paper and printing charges from them and it was in those circumstances, while interpreting item 22 of the Schedule to the notification which states "22. Sales of reading books including text books by any dealer", it was held that assessee therein was not entitled to exemption. The said decision has been differentiated by a subsequent Division Bench in Tvl. Kannan Art Calenders, Sivakasi Vs. The State of Tamilnadu, with the following observation (page 506 in 128 STC) :

Before we close, we have to take the stock of the decision in State of Tamil Nadu Vs. Papco Offset Printing Works, We must hasten to add that the learned judges therein were not called upon to decide the question as to whether the alphabet chart could be said to be a ''book''. In fact, that question was never argued before the learned judges since the matter was decided ex parte as no one appeared on behalf of the assessee. The assessment year in that case was also 1985-86. However, the clarification issued by the Department was not made available to the learned judges ; nor was the judgment in The State of Tamil Nadu Vs. Mundran Kala Mandir, was brought to the notice of the learned judges. Again what the printed material was also not clear from the judgment. We do not know as to whether the learned judges were considering the alphabet charts or some other thing because there is no indication in the judgment that they were considering the alphabet charts. In that view, we are of the clear opinion that the judgment in State of Tamil Nadu Vs. Papco Offset Printing Works, would be of no help to the State.

Be that as it may, on the factual finding by the Appellate Assistant Commissioner (Commercial Taxes) in this case, the finding under the impugned order by the first respondent is totally uncalled-for and the reliance placed by the first respondent under the impugned order on the judgment in State of Tamil Nadu Vs. Papco Offset Printing Works, has no relevance at all. In such view of the matter, the writ petition stands allowed and the impugned order of the first respondent is set aside. No costs.