TMI Blog1962 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined under the Act. The first question raised in the petition cannot therefore be determined by this Court as it could not be determined by the High Court. - Civil Appeal No. 578 of 1962, - - - Dated:- 21-12-1962 - SINHA B.P., GAJENDRAGADKAR P.B., WANCHOO K.N., DAS GUPTA K.C. AND SHAH J.C. JJ. B. Sen, Senior Advocate (K.L. Hathi and I.N. Shroff, Advocates, with him), for the respondent. S.T. Desai, Senior Advocate (J.B. Dadachanji, O.C. Mathur and Ravinder Narain, Advocates of J.B. Dadachanji and Co., with him), for the appellant. -------------------------------------------------- The Judgment of the Court was delivered by SHAH, J. -This is an appeal against the judgment of the Madhya Pradesh High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer had power to levy tax on "sale" only i.e., on transfer of property for a price, and as there was no sale of motor oil and lubricants consumed by the company for its own vehicles there being no transfer of property to anyone, and no price being paid or promised, consumption of the articles was not taxable. That it was submitted is manifest from the charging section 3 read with the definition under section 2(k) of the Act of "retail sale" which does not include consumption by a retail dealer of his own goods. (2) That power of the State to levy tax on the sale or purchase of goods (other than newspapers) could be exercised only under Entry 54 of List II of Schedule VII to the Constitution. Therefore the attempted levy of tax was ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner as an agent of Caltex (India) Limited to the petitioner-company as a consumer. It was nothing but a purchase by the agent of property belonging to the principal. That being so, there was retail sale by the petitioner as agent of Caltex (India) Limited of the petrol consumed in its vehicles." Against the order dismissing the petition, this appeal is preferred with special leave. In our judgment the High Court was in error in proceeding to decide the petition on a ground which was not set up in the affidavit of the Sales Tax Officer. The company claimed relief on the assumption that motor spirits and lubricants used by it for its own vehicles were of its ownership, and appropriation by a retail dealer of the stock-in-trade owned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes any fundamental rights, or whether the taxing authority has arrogated to himself, power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the exigibility to tax of transactions the nature of which is admitted, but the High Court normally does not proceed to ascertain the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kerley Co. (Madras) Ltd. [1959] S.C.R. 379; 9 S.T.C. 353., Section 2(k) of the Act defines a "retail sale" as meaning "a sale of motor spirit by a retail dealer for the purpose of consumption by the person by whom or on whose behalf it is or may be purchased, and the expression 'sell in retail' shall be construed accordingly." But there is nothing in the definition of "retail sale" [section 2(k)] or in the charging section (section 3) which indicates that the Legislature had enacted legislation beyond its competence. If the taxing authority had sought to bring to tax a transaction which is made taxable by a competent enactment it would not be open to the High Court exercising power under Article 226 of the Constitution to consider whether ..... X X X X Extracts X X X X X X X X Extracts X X X X
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