Jain Industrial Corporation and another vs Commercial Tax Officer

G.C. Bharuka, J.—These writ petitions have been filed by the petitioners for quashing the assessment orders pertaining to the assessment years 1987-88 and 1988-89 (annexures A and B to the respective writ petitions) to the extent of levy of turnover tax under the provisions of section 6B of the Karnataka Sales Tax Act, 1957 (for short, "the Act").

Petitioners are the proprietorship concerns. They are engaged in the manufacture of household plastic goods. For the purpose of manufacturing finished products they buy plastic scraps from unregistered dealers. In view of two notifications dated July 31, 1985 and March 7, 1986 (annexures C and D) issued by the State Government u/s 8A of the Act granting exemption of tax on purchase of "plastic scraps" and sale of "plastic wares" by the manufacturers, petitioners were not liable to levy of either purchase tax or sales tax on their raw materials and finished goods. Nonetheless, since no exemption had been granted in respect of turnover tax under any of the exempting notifications, the assessing authority has levied the same while making the impugned assessments under annexures A and B above.

Sri B. P. Gandhi, learned counsel for the petitioners, has assailed the levy of turnover tax against the petitioners on the plea that since no tax is leviable on the raw materials purchased by them in terms of section 6 of the Act, in view of rule 6(1) of the Karnataka Sales Tax Rules, 1957 (in short, "the Rules"), the purchase turnover cannot form part of the total turnover for the purpose of levy of turnover tax u/s 6B of the Act. According to him, u/s 6B of the Act, the tax contemplated therein can be levied only on a total turnover which is to be computed in accordance with the said rule 6 of the Rules. On the other hand, Mr. Nazeer, learned Government Pleader, appearing for the respondents submitted that rule 6 has no bearing on the leviability of the turnover tax u/s 6B of the Act since this section is self-contained with regard to leviability of tax contemplated thereunder.

Section 6B as it originally stood provided for levy of additional tax being 10 per cent of the sales and/or purchase tax payable by a dealer subject to certain restrictions contained in the proviso thereto. The constitutional validity of the said provision was upheld by a Bench of this Court in the case of B.P. Automobiles and Others Vs. State of Karnataka and Another, but, keeping in view the language employed u/s 6B(2) as it then stood, it was held that the exemptions provided u/s 5(3)(a) and section 5(3)(b) to the levy of tax under sections 5(1) and 6 of the Act were also attracted to the levy u/s 6B(1) of the Act.

The original section 6B was substituted by section 3 of the Karnataka Sales Tax (Amendment) Act, 1981 (Karnataka Act 7 of 1981). While the earlier provision envisaged an additional tax being a percentage of tax payable by a dealer, the substituted provisions provided for levy of tax with reference to the total turnover of the dealer at the rates prescribed under the said section. The constitutional validity of the said substituted section 6B was again challenged and a Bench of this Court in the case of Shantilal and Brothers Vs. State of Karnataka and Another, rejected all the contentions in the said regard holding the said provision as valid. It was further held that :

"The impugned section 6B thus provides for the levy and collection of turnover tax at the rate of one-half per cent on every dealer whose total turnover in a year exceeds one lakh of rupees. It is an independent charging section to tax the turnover of a dealer at the prescribed rate irrespective of the fact whether any part of such turnover has suffered any tax under any other provisions of the Act."

Section 6B(1) as it stood at the material time was to the following effect :

"6B. Levy of turnover tax :- (1) Every dealer other than the Government of Karnataka, the Central Government or the State Government of any other State whose total turnover in a year is not less than five lakh rupees whether or not the whole or any portion of such turnover is liable to tax under any other provisions of this Act, shall be liable to pay tax, -

(i) if it is a body corporate, -

(a) at the rate of one and a quarter per cent of its total turnover, if its total turnover is not less than five lakh rupees but is less than two hundred and fifty lakh rupees in a year; or

(b) at the rate of one and a half per cent of its total turnover if its total turnover is not less than two hundred and fifty lakh rupees in a year;

(ii) if he is other than a body corporate, -

at the rate of one and a quarter per cent of his total turnover, if his total turnover is not less than five lakh rupees in a year :

Provided that no tax under this sub-section shall be payable on that part of such turnover which relates to, -

(i)..... to (xi).......

Provided further that, save as otherwise provided in this sub-section, no other deduction shall be made from the total turnover of a dealer for the purposes of this section.

..................."

From a reading of the said provision, it is clear that the turnover tax is levied at a certain percentage of the total turnover of the dealer. The expression "total turnover" has been defined u/s 2(u-2) and it reads as under :

"u-2. ''total turnover'' means the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax, including the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India."

Therefore, the definition "total turnover" as set out above is exhaustive by itself and it does not depend on making of any rule for its determination. In contra-distinction to the definition of "total turnover" the expression "taxable turnover" as defined u/s 2(u-1) has to be determined in the manner as prescribed under the Rules as is evident from the definition of the said expression which is to the following effect :

"(u-1). ''taxable turnover'' means the turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed, but shall not include the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India."

The substratum of the contention raised by Mr. Gandhi is based on an interpretation and application of rule 6(1)(a) of the Rules, which read as follows :

"6. Determination of total and taxable turnover. - (1) The total turnover of a dealer, for the purposes of the Act, shall be the aggregate of -

(a) the total amount paid or payable by the dealer as the consideration for the purchase of any of the goods in respect of which tax is leviable at the point of purchase under one or more of the provisions specified hereunder, where such purchase has taken place inside the State :-

(i) clause (b) of sub-section (3) of section 5;

(ii) sub-section (4) of section 5;

(iii) section 6."

His submission is that since u/s 6B(1) of the Act, the tax has to be levied on total turnover, for the said purpose the basis can be only the total turnover as computed under rule 6 of the Roles and not as defined u/s 2(u-2) of the Act. According to him, that being the legal position, since the purchase turnover of the petitioners being that of plastic scraps was not liable to any tax u/s 6, the same cannot form part of total turnover for the purpose of levy of tax u/s 6B.

In my considered opinion, the submission advanced by Mr. Gandhi is obviously fallacious for more than one reason. As held by the two Division Bench decisions of this Court in the cases of B.P. Automobiles and Others Vs. State of Karnataka and Another, and Shantilal and Brothers Vs. State of Karnataka and Another, the expression "total turnover" as used u/s 6B(1) has to be necessarily read in terms of section 2(u-2) and not on computation thereof as provided under rule 6 of the Rules. Even otherwise it is well-settled that if the rules are found to be inconsistent with the provisions of the Act, the same have to yield to the latter, and the provisions contained under the Act will have an overriding effect. The "total turnover" as defined u/s 2(u-2) of the Act, as noticed above, is not dependent on any mode of computation to be provided by the rule-making authority. On a proper construction it can well be held that rule 6 of the Rules had to be engrafted in order to work out "taxable turnover" as defined u/s 2(u-1) of the Act and the total turnover as worked out therein is only a step in-aid for ultimate computation of taxable turnover. The expression "The total turnover of a dealer, for the purpose of the Act, shall be the aggregate" as used in rule 6 can by no rule of construction be held as intending to override the definition of "total turnover" as defined under the Act. The rule of harmonious construction clearly suggests that the determination of total turnover under rule 6 is meant only for the purpose of determining taxable turnover and nothing more.

The contention of Mr. Gandhi based on section 38(4) of the Act, inter alia, providing therein that the Rules made under the Act "will have the effect as if enacted under this Act" cannot place the rule 6 on any higher pedestal, since now by catena of judgments of the Supreme Court it is well-established that by use of "as if enacted under this Act" formula, the subordinate legislation does not lose its character of being subordinate to the parent Act and the formula does not bestow any additional sanctity to subordinate legislation which, if not made within the strict limits of the authority conferred by the parent Act, is always open to challenge on the ground that it is unauthorised". (see The Chief Inspector of Mines and Another Vs. Lala Karam Chand Thapar etc., ; Kalipada Chowdhury Vs. Union of India (UOI), ; State of Kerala Vs. K.M. Charia Abdullah and Co., ; Chief Commissioner, Ajmer Vs. Radhey Shyam Dani, ; Lt.-Col. Prithi Pal Singh Bedi and Others Vs. Union of India (UOI) and Others, ; General Officer Commanding-in-Chief and Another Vs. Dr. Subhash Chandra Yadav and Another,

It has further to be borne in mind that the grant of exemption from tax under any other provisions of the Act cannot in any way affect the liability u/s 6B of the Act since in sub-section (1) thereof the Legislature has excluded the consideration of such exemptions by specifically declaring "whether or not the whole or any portion of such turnover is liable to tax under any other provisions of this Act". It has been made more explicit by further declaring under the second proviso to sub-section (1) of section 6B of the Act to the effect that "no other deduction shall be made from the total turnover of a dealer for the purpose of this section". This means that except the deductions provided under the first proviso to section 6B(1) nothing else can be deducted from the total turnover as defined u/s 2(u-2) for the purpose of levy of turnover tax u/s 6B of the Act.

For these reasons, in my opinion, the contentions raised on behalf of the petitioners have no substance. It is accordingly held that despite of exemptions granted under notifications annexures C and D in respect of purchase of plastic scrapes as raw materials and the sale of finished goods being plastic wares, petitioners are liable to levy of turnover tax u/s 6B of the Act. Writ petitions are accordingly dismissed but without costs.

Writ petitions dismissed.