9911796707
TMI Blog1960 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... gbehera in Madhya Pradesh. During the years 1948 to 1951 it was engaged in collecting bidi leaves from certain forest areas in Orissa. The leaves so collected were made up into bundles and stored in the respondent's godowns in Orissa. They were then sold and despatched to various destinations outside the State of Orissa. The respondent did not get itself registered as a dealer under the Orissa Sales Tax Act, 1947 (Orissa Act XIV of 1947) hereinafter called the Act. On July 21, 1950, a notice was issued to the respondent by the Assistant Sales Tax Officer, Patna Circle, requiring it to submit a return in Form No. IV showing separately the particulars of its turnover for each of the quarters commencing October, 1947, and up to June 30, 1950. The respondent was also asked to show cause why a penalty should not be imposed on it under section 12(5) of the Act. To this notice the res- pondent sent a reply to the effect, substantially, that it carried on no selling business in Orissa and was, therefore, under no liability to register itself as a dealer in Orissa or to pay sales tax under the Act. There- after, the respondent took no part in the assessment proceedings and made no appearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood and Orissa could not tax them; (3) that the notice under section 12(5) of the Act was bad on various grounds; (4) that the fees levied under rule 59 of the Orissa Sales Tax Rules, 1947, on the respondent's memorandum of appeal and revision application were not justified in law; and (5) that the assessment was illegally made and so also the penalty under section 12(5) of the Act. On these contentions the respondent asked for a writ quashing the assessment proceedings and the notices of demand and for a direction for a refund of the fees paid. The High Court allowed the petition by its judgment and order dated September 5, 1955. It set aside the assessment orders, directed a refund of the fees paid and further made an order that the respondent shall be directed "to furnish a return of its transactions under section 11 for the period for which it had been served with a notice under section 11(1) of the Act". In support of its orders the High Court came to the following findings: (1) that the assessment orders were bad because of the repeal of the second proviso to section 2(g) of the Act defining "sale", by the Adaptation of Laws Order, 1950; (2) that the levy of fees on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the sales of the post-Constitution period and a reference was made to the Explanation to Article 286(1)(a) as it then stood. But the necessary averments to attract the Explanation were not made, and nowhere was it stated that the goods were despatched outside Orissa for the purpose of consumption in the delivery State. In other words, no foundation was laid for making a distinction between the pre-Constitution and post-Constitution sales, and with regard to all of them it was admitted that they were completed in Orissa-an admission which was never repudiated or challenged. We are, therefore, of the opinion that the High Court was clearly in error in its first finding as to the unconstitutionality of the assessment orders made. We think that the High Court was also in error in its finding as to the legality of the fees levied on the memorandum of appeal and the application in revision. Section 29 of the Act deals with the rule- making power. It states: "Section 29(1)-The State Government may, subject to the condition of previous publication, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vincial Legislature had power to make a law under item 1. We do not think that section 29(2)(s) can be held to be bad on the ground of legislative in- competence. Nor do we think that rule 59 goes beyond what is permitted under section 29(2)(s). The fees imposed are not taxes at all; they come within the expression "other matters (including fees) incidental to the disposal of appeals and applications for revision etc." We are unable to agree with the High Court that the word "incidental" has reference to a matter of casual nature only. The procedure for disposal of an appeal includes as a necessary incidental matter the filing of an appeal on a proper fee. The distinction between a tax and a fee was considered by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] S.C.R. 1005 and it is unnecessary to repeat what was said there. We consider that the fees imposed by rule 59 are for services rendered by a govern- mental agency and though ordinarily fees are uniform, there may be various kinds of fees and it is not possible to formulate a definition that would be applicable to all cases. Now, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
