The Coimbatore District Central Co-Operative Supply and Marketing Society Ltd., Coimbatore vs Deputy Commercial Tax Officer, Coimbatore and Another

Veeraswami, C.J.—This batch of cases involves construction of Section 5 of the Tamil Nadu General Sales Tax Act. The assessee, the Coimbatore District Central Co-operative Supply and Marketing Society Ltd., was found to have a turnover of Rs. 5,30,92,979.52. Out of this turnover Rs. 3,68,34,733.11 was given exemption u/s 17 read with item 44 by an order of Government issued under that section. The taxable turnover was thus found to be Rs. 1,62,58,246.41. This turnover was subjected to tax u/s 3(1). Later, the Deputy Commercial Tax Officer, on a further verification of the assessment files, estimated a turnover of Rs. 9,44,156.90 to be liable to tax u/s 5 of the Act. There is no controversy that this turnover represents sales of the type comprehended by Section 5.

What is contended for the assessee is that even so when the entire turnover of Rs. 5,30,92,979.52 was the subject-matter of assessment u/s 3(1), there is no further room for application of Section 5. In other words, Mr. Chari submits that the assessment was an entire thing and, once it was subjected to tax u/s 3(1), a few sales out of the assessment could not be singled out for charging u/s 5. The argument goes so far to suggest that Section 5 ''s scope is confined only to lift or cancel the exemption limit provided by Section 3(1) by the use of the words "whatever be the quantum of his turnover" in Section 5. We are unable to accept that this is the proper construction to be placed on Section 5. Section 3(1) is the main charging section which levies multi-point tax. But the charge will be attracted only if the dealer returns or is found to have a turnover beyond the exemption limit. The section thus provides for an exemption limit and also for a charge specifying the rate. Section 17(1) empowers the Government to grant an exemption in specified goods or class of goods from charge and, in the instant case, because of the character of the assessee and the sales, the exemption we mentioned under item 44 was applied. But this, of course, will have nothing to do with the construction of Section 5 as such. The scheme of Section 6 appears to be that, since it opens with a non obstante clause, to wit, "notwithstanding anything contained in Sub-section (1) of Section 3", it has to be taken that Section 5 prevails over Section 3(1). That, in our opinion, is the effect of the application of the non obstante clause. If that be so, as we consider to be the case, Section 5 covers the charge, the quantum of turnover to be brought under the charge and the rate. Where sales are of the specified type described in Section 5, they become chargeable not u/s 3(1) because of the non obstante clause in Section 5 but u/s 5 which is a special charging section. It is self-contained as Section 3(1). It is not unusual that where a turnover of sales, when split up, is found to contain a variety of transactions which are differently dealt with for the purpose of charging under the Sales Tax Act, it is no argument, because there is a compendious assessment that the sales which attract the special charge could not be separated from assessment. Nor are we persuaded by the contention that the scope of Section 5 is so narrow that it only has reference to cancellation of the exemption limit u/s 3(1), and that, whatever be the quantum of turnover, the sales of the type mentioned in Section 5 will not attract the charge.

In our opinion, Sivamurugan v. Assistant Commercial Tax Officer [1970] 26 S.T.C. 68 was rightly decided.

The writ appeal and tax cases are dismissed with costs in each of them. Counsel''s fee Rs. 150.