Marble Vyapar Sangathan vs State of Rajasthan and Others

K.S. Lodha, J.—The petitioner has challenged the notification (annexure 2) dated January 12, 1990, by which annexure 3 has been amended and has also prayed for certain consequential reliefs.

I have heard the learned counsel for the petitioner as also Mr, Rajesh Balia, appearing for the respondents at some length.

The main thrust of the argument of the learned counsel for the petitioner is that by this notification, the members of the petitioner-Sangathan, who are registered dealers, have been converted into casual dealers and they have been subjected to pay tax at the time of every transaction, they enter into for sale of their commodities. They are dealers in marble. It has also been urged by the learned counsel for the petitioner that there was no nexus between the alleged prevention of evasion of tax and the notification issued. Certain other arguments have also been raised by him and I shall refer to them a little later.

In order to appreciate the contentions of the learned counsel for the petitioner, it will be proper to set out the relevant extracts of the notification (annexure 2) as also the original notification (annexure 3) dated May 20, 1986. The original notification (annexure 3) has been issued in exercise of the powers under Sub-section (2A) of Section 7 of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act") and it has been directed that the class of dealers specified in column No. 1 of the Schedule appended to the notification shall pay tax at intervals specified in column No. 2 thereof. In the Schedule, in column No. 1, class of dealers have been mentioned and against it, in column No. 2, intervals, at which the tax is payable, have been indicated. There are only two classes of dealers, which have been mentioned as (a) and (b). Now, by notification dated January 12, 1990 (annexure 2), which has also been issued in exercise of the powers under Sub-section (2A) of Section 7, an amendment was made in the Schedule appended to the first notification (annexure 3) and a third category of dealers has been introduced at item (c) in column No. 1 and in column No. 2, against this class of dealers, it has been mentioned "in respect of goods mentioned in column No. 1 in accordance with the provisions of Section 10A of the Act".

The learned counsel for the petitioner has been at pains to point out the distinction between a registered dealer and a casual dealer. I need not go into that inasmuch as there is no dispute that a casual dealer is someone different from a registered dealer and special provision has been made for the casual dealers u/s 10A of the Act, whereas so far as the registered dealers are concerned, the provisions with regard to submission of return, etc., have been provided in Section 7. Sub-section (1) of Section 7 provides how returns are to be filed and Sub-section (2) further provides that every such return shall be accompanied by a treasury receipt or receipt of any bank authorised to receive money on behalf of the State Government showing the deposit of the full amount of tax due on the basis of return in the State Government treasury or bank concerned. Sub-section (2A) of Section 7, then, provides that notwithstanding anything contained in Subsection (2), the State Government may by notification in the Official Gazette require any dealer or class of dealers specified therein, to pay tax at intervals shorter than those prescribed under Sub-section (1). In such cases, the tax according to his accounts shall be deposited at the intervals specified in the said notification in advance of the return and the return shall be accompanied by the treasury receipt, or receipts of any bank authorised to receive money on behalf of the State Government for the full amount of tax due shown in the return. Thus, Sub-section (2A) of Section 7 authorises the State Government to prescribe any shorter period other than that specified in Sub-section (1) of Section 7 for the payment of tax and it is in pursuance of this Sub-section (2A) of Section 7 that the notifications (annexure 3) and later annexure 2 have been issued.

The question before me precisely is whether by introducing provisions of Section 10A in column No. 2 of notification (annexure 2), the registered dealers have been relegated to the position of casual dealers and whether they have been subjected to certain liabilities, which otherwise they may not have been subjected to. The contention of the learned counsel for the petitioner is that when Section 10A of the Act has been incorporated in column No. 2 of the notification (annexure 2), the whole Section 10A will have to be read into this column and all the liabilities or responsibilities, which have been fixed on the casual dealers will, ipso facto, apply to the registered dealers, who deal in the type of business mentioned in column No. 1 at item (c) of the said notification. The short answer to this contention is that the notification (annexure 2) cannot be read in isolation, but is to be read in conjunction with or along with the original notification (annexure 3) and if it is so read, it will clearly appear that these two notifications have been issued only in order to prescribe the intervals, at which the tax is to be paid by the dealers concerned. The words in annexure 3 "Government hereby directs that the class of dealers specified in column No. 1 of the Schedule appended hereto shall pay tax at intervals specified in column No. 2 thereof," leave no room for doubt that this notification only prescribes the intervals, at which the taxes have to be paid by the dealers specified in the notification and by notification (annexure 2), this very notification has been amended and a class of dealers has been introduced at item (c) and in column No. 2 against it, intervals at which the taxes are to be paid by them, have been specified. No doubt, it has been mentioned in this column that in respect of the goods mentioned in column No. 1, taxes are to be paid in accordance with Section 10A of the Act. But, this does not mean that the whole of Section 10A has been incorporated in this column and this incorporation will have to be limited to the purpose for which the original notification (annexure 3) had been issued, i.e., Section 10A only, so far as it relates to the intervals for the payment of tax is concerned, will have to be read into this column and nothing more. It has also been clearly admitted by Mr. Balia, appearing for the respondents that the only intention of introducing Section 10A in column No. 2 is with regard to the intervals of time and nothing beyond that. It would not, in any way, effect the mode of payment. Thus, if column No. 2 of notification (annexure 2) is interpreted in this light, the further argument of the learned counsel for the petitioner that the petitioner would be subjected to all other liabilities and responsibilities of casual dealers in accordance with Section 10A, would lose its ground.

Faced with this situation, the learned counsel for the petitioner further urged that, as a matter of fact no interval has been provided u/s 10A for the payment of tax as the tax has to be paid immediately on the sale being effected, as is envisaged by this section and, therefore, by mere reference of Section 7(2A), it cannot be said that the notification only provides for intervals shorter than those prescribed in Sub-section (1) of Section 7. In this connection, the learned counsel drew my attention to the meaning of the term "interval" in various dictionaries, the purport of which appears to be that there must be some period of time intervening between two events, but he argues, here there is no such interval at all. I am not impressed by this argument either. When Section 7(2A) authorises the State Government to require any dealer or class of dealers to pay tax at intervals shorter than those prescribed in Sub-section (1), it has also power to cut the interval to nil. Here, the term "shorter" does not necessarily mean that there must be some gap between the payment of tax and the sale being effected. The liability to tax arises as soon as the sale is completed. It is a different matter when and how the liability is to be enforced. Reference in this connection may be made to Kaliki Veera Reddy and Co. Vs. State of Andhra Pradesh, and Builders Association of India v. Union of India [1989] 73 STC 370 (SC) ; Builders Association of India and Others Vs. Union of India (UOI) and Others, There is no dispute before me that the members of the petitioner are liable to pay tax on the sale of their commodities and, therefore, if a convenient mode of realising the tax is being prescribed in the notification (annexure 2) specially with a view to prevent evasion of tax, the petitioner cannot make a grouse against that.

It was, further, contended by the learned counsel for the petitioner that by introducing Section 10A in column No. 2 of the notification (annexure 2) the State Government has delegated the powers, which it had itself exercised under Rule 46 of the Rajasthan Sales Tax Rules, 1955, to the assessing authority or the officer-in-charge of the check-post because under Sub-section (1) of Section 10A, it has been left to the discretion of the assessing authority or the officer-in-charge of the check-post to prescribe the manner in which he would like the tax to be deposited. In my opinion, when it has already been stated above that the incorporation of Section 10A in column No. 2 is only to the extent of intervals, the further question of delegation of any power to the assessing authority or the officer-in-charge of the check-post to prescribe the manner in which the tax has to be deposited, does not arise and the petitioners are free to act in accordance with Rule 46, if they so choose and if they want to avail of the facility of depositing the tax at the check-post itself, they may avail of that facility also. It has been admitted by Mr. Balia that if tax is paid by these dealers in the manner provided under Rule 46, no tax will be demanded from them at the check-post.

It was also urged by the learned counsel for the petitioner that the check-posts are not meant for collection of tax, but they are created u/s 22A in order to prevent avoidance or evasion of tax. This contention also cannot be sustained in the circumstances of the case inasmuch as here the check-posts are not being used as the tax collecting centres, but only a provision has been made in order to ensure that evasion is prevented by collecting the tax at the time of the sale itself. If tax is also paid by the dealers specified in item (c) of annexure 3, at the check-posts, it cannot be said to be contrary to the purpose or intention of Section 22A.

Then, the learned counsel for the petitioner urged that this notification is being misused and tax is being collected even on assumption or expectancy of the sales, where the sales have not yet been effected and in support of this contention he referred to the cases of intra-State sales or goods sent on approval. It has been further pointed out by him that even in such cases, the tax has been collected at the check-posts. In my opinion, the misuse or misinterpretation of the notification cannot be a ground for setting it aside or quashing it. As a matter of fact, the tax would become payable only when the sale is effected and if no sale is effected, the assessing authority or the officer-in-charge of the check-post is not entitled to collect any tax. If tax has wrongly been imposed in certain cases, the remedy lies elsewhere. The learned counsel relied upon Bangalore Distributing Company Pvt. Ltd. Vs. The Assistant Commercial Tax Officer, Check Post Thirumangalam and Others, in support of his contention that the tax cannot be imposed on assumption or expectancy. But, as already stated above, this contention cannot be accepted for quashing this notification on the ground of wrong imposition of tax. The learned counsel also cited Rameshchand v. Kundan Mal (1989) 12 TaxW 279.

The learned counsel for the petitioner also urged that the taxing statute has to be strictly construed and its meaning cannot be stretched and in this connection, he relied upon Commissioner of Sales Tax, Uttar Pradesh Vs. The Modi Sugar Mills Ltd., There cannot be any quarrel with this proposition, but at the same time, a distinction has to be made between the charging sections and machinery sections of the taxing statute. So far as the charging sections are concerned, they have got to be construed very strictly, but so far as the machinery sections are concerned, they are not subjected to that rigour and have to be interpreted keeping in view the purpose for which those provisions have been made and to see that they are made workable. In this connection, reference may be made to Associated Cement Company Limited Vs. Commercial Tax Officer, Kota and Others, which was relied upon by the learned counsel for the respondents.

One of the contentions of the learned counsel for the petitioner was that this notification purports to have been issued with intention of preventing evasion of tax, but as a matter of fact, it has no nexus with that. I am not persuaded by this argument also. It has been pointed out by the learned counsel for the respondents by placing certain figures of collection of tax after introduction of the notification (annexure 2), and contended that the recoveries have gone up considerably. He has also pointed out by furnishing certain schedules that, evasion of tax in this particular trade had been to a sizable extent, as would be clear from Schedules B, C and D filed within the additional submissions. I do not feel inclined to go into the details of these Schedules, but it may at once be mentioned that the collection of lax at the time of the sales, would certainly avoid evasion by underbilling, etc., as there would be an effective check on such activities. It has been also pointed out by the learned counsel for the respondents that this notification had been issued after experimenting the same procedure so far as the marble dealers at Makrana were concerned and has given fruitful results. Therefore, it cannot be said that the notification has no nexus with the purpose for which it has been issued.

For the reasons stated above, I do not find substance in this writ petition and the same is, therefore, dismissed summarily. There shall be no order as to costs.