Bharat Saw Mills, Ghamapur, Jabalpur vs Commissioner of Sales Tax

C.P. Sen, J.

This is a reference made by the Board of Revenue u/s 44(1) of M. P. General Sales-Tax Act, 1958, to answer the following questions :-

(1) Whether under the facts and circumstances of the case sales tax authorities were justified in taxing the sale proceeds of a used truck under the M. P. General Sales Tax Act, 1958 when the assessee is a forest contractor ?

(2) Whether the assessee is barred to get the exemption u/s 2(r)(ii) of the M. P. General Sales-Tax Act on the value of the motor chasis which he had purchased from the registered dealer, when only wooden body was fixed on the chasis and whether the cost of chasis and body cannot be bifurcated for determining the taxable sales ?

The assessee is a forest contractor and deals in timber, firewood and charcoal. He is a registered dealer under the Act. The assessee purchased a truck chasis for an amount of Rs. 52,000/- inclusive of sales tax from the registered dealer M/s Bhilai Motors, Raipur, on 17-3-1970 and spent Rs. 6255.41 for the truck wooden body. After using the truck for three years in his business, he sold the truck for an amount of Rs. 40,000/-. In the gross turn over as well as in the taxable turn over, the assessing authority included the amount of Rs. 40,000/- and taxed the entire amount at the rate of 11% under the Act and 2% under the Turnover Tax. The assessee preferred first appeal before the Appellate Assistant Commissioner of Sales-Tax. The first appellate authority vide order dated 31-5-1976 held that the dealer had originally purchased a chasis and body was constructed subsequently and used thereafter. After using the truck, he sold the same and claimed deduction of sale price of the truck as a tax paid goods u/s 2(r)(ii). Its claim was disallowed on the ground that the commodity which he purchased has not been sold in the same form. The original chasis had undergone a complete change and a different commodity has come into being which was ultimately sold after being used for a long time. Therefore, deduction u/s 2(r)(ii) was not permissible in the circumstances of the case. The assessee then preferred a second appeal before the Tribunal i.e. Board of Revenue and by order dated 11-12-1976 it held that the truck was admittedly used in the assessee''s business for about 3 years and in view of the earlier decision of the Tribunal in Bhopal Sugar Industries and Project Automobiles, Bhilai vs. Commissioner of Sales Tax M. P. (1971) 4V.K.N. 144 there was no justification for interfering with the assessing authority''s order and the order of the first appellate authority and the sale in question was exigible to tax. The sale price of the truck could not be allowed to be deducted u/s 2(r)(ii) of the Act because after purchase of the chasis a body was constructed and the resultant commodity cannot, therefore, be treated as identical to the commodity which was purchased from the registered dealer. The assessee then filed an application u/s 44(1) and so this reference has been made to answer the aforesaid two questions.

It is not disputed by the learned counsel for the parties that both the questions are now covered by the decisions of this Court. This Court in Commissioner of Sales Tax vs. Project Automobiles (42 S. T. C 279) held as under : -

Under the enlarged definition of the word ''business'' in Section 2(bb) of the M. P. General Sales-Tax Act, 1958, as inserted by Amendment Act No. 16 of 1966, profit motive is immaterial and the concept of business, in respect of matter falling under clause (ii) of the definition, in the commercial sense has been abandoned. Therefore, the sale by the assessee, a distributor of Ambassador cars and a registered dealer in automobiles and their accessories, of an Ambassador car purchased for its office use after payment of full Central sales tax at 10 per cent was not only incidental but also ancillary to and connected with the business that it carried on and was taxable.

Following this decision, this Court in Commissioner of Sales Tax vs. Bhopal Sugar Industries (1981) 48 S. T. C. 45 held that where car, jeep and trucks were purchased by the assessee for its business, the sales of these vehicles after they ceased to be useful were necessarily sales incidental to the business of the assessee and were liable to sales tax. Therefore, question No. 1 is answered in the affirmative. Regarding the second question, this Court in Pyarelal Mohanlal vs. C. S. T. (1982) 15 V.K.N. 268 held as follows : �

The petitioner is a P.W.D. contractor. For the purpose of his business, he uses motor trucks. For keeping, the motor trucks in good running condition, he is required to replace worn-out tyres, spare parts and mobil oil. The sale of worn-out tyres etc. was assessed to sales-tax by STO and upheld in revision by Deputy Commissioner of Sales-tax. The contention of the petitioner was that the goods sold were purchased from registered dealers and the sales of these goods after they were used are also exempted u/s 2(r)(ii) of the Act. The contention was rejected by the Sales-tax authority on the ground that after the goods were used, they ceased to be the same goods which were purchased from the registered dealers and, therefore, the exemption contained in Section 2(r)(ii) did not apply. On a petition;

Held, that the goods do not lose their identity simply because after purchase, they are used by the petitioner in the course of his business. Tyres even after they were used and ceased to be serviceable remained tyres. Similar is the case with other goods, namely, spare parts and mobil oil. The exemption contained

(sic) already paid while purchasing the chasis from the registered dealer u/s 2(r)(ii). Taxable turn over in relation to any period means that part of the dealer''s turn over for such period which remains after deducting therefrom (i) sale price of goods declared tax free u/s 10 or 12 and (ii) sale price of goods mentioned in Parts II to VI of Schedule II which are in the nature of tax paid goods in the hands of such dealers. Obviously, the truck chasis was tax paid goods and when it was resold the assessee is entitled to deduct the price of the chasis from the taxable turn over. Under the circumstances, only the cost of building wooden body amounting to Rs. 6255.41 with depreciation alone is liable to be included in the taxable turn over. As such, the second question is answered by saying that exemption u/s 2(r)(ii) is available on the value of the motor chasis purchased from the registered dealer and the value of the body can be bifurcated.

The reference is answered accordingly. Parties to bear their own costs.