TMI Blog2005 (8) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Act. The said sections are basically meant to check the tax evasion. Thus the requirement of maintenance of document and the certificate of registration by a transporter or any such agent is only for similar purpose as incorporated under sections 36A and 38B of the Tripura Sales Tax Act, 1976 which has been held to be a valid piece of legislation. The Assam Act is completely distinguishable from the Haryana Act. There is a marked difference between the provisions of Haryana and Tripura Laws inasmuch as section 38 of the Haryana General Sales Tax Act, 1973 does not clearly define the person dealing with "documents of title to goods". Further, this Court declared the provisions of section 38 of the Haryana General Sales Act to be ultra vires primarily on the ground that the transporters/carriers were specifically excluded from the definition of "person transporting goods" in the Explanation appended to section 38 of the Act. The insertion of section 46A and rule 21A has in no way infringed the fundamental rights of the petitioners as the inserted provisions are analogous to those of section 38B of the Tripura Sales Tax Act, 1976 which have since been upheld by this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or forwarding agent or any other person transporting goods who during the course of his business handles documents of title to goods for or on behalf of any dealer or a person holding certificate under section 14 shall furnish to the prescribed authority true and complete particulars and information and shall maintain true and complete accounts, registers and documents in respect thereof, and if the prescribed authority considers that such accounts, registers and documents are not sufficiently clear and intelligible the said authority may direct any clearing, booking or forwarding agent or dalal or the persons transporting goods to produce and maintain accounts in such manner as may be required. (2) Such accounts shall, on demand, be produced before the prescribed authority who may take or cause to be taken such extracts as he may consider necessary. (3) A person transporting goods shall carry a declaration in such form as may be prescribed, supported by either a cash memo, a bill or a challan, in case the movement is otherwise a result of sale, in respect of goods which is being transported on a goods carrier, or a vessel and shall produce such challan, cash memo or bill alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed under sub-section (1) of section 3, may, either before or after assessment, require any dealer to produce before it or him any accounts, registers or documents or to furnish any information relating to the financial transactions of the dealer, the profit derived from such transactions and the stock of goods produced, raised, processed, manufactured, bought, sold or delivered by such dealer and the dealer shall comply with such requirement. (2) Subject as aforesaid, all accounts registers and documents relating to the financial transactions of a dealer, the profit derived from such transactions and all goods kept in any place of business of any dealer shall at all reasonable times, be open for inspection by any authority appointed under sub-section (1) of section 3 and the dealer shall render all possible assistance to such authority in carrying out the inspection. Explanation . Such authority may take or cause to be taken such copies of, or extracts from the accounts, registers or documents as such authority may consider necessary. (3) If any authority appointed under sub-section (1) of section 3 has reason to suspect that any dealer is to evade the payment of any t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after giving an opportunity of being heard to the dealer or such person which shall be equal to three times the amount of tax calculated on the value of such goods and the goods shall be released as soon as the penalty is paid. (c) If the dealer or the person in-charge of goods as mentioned in clause (a) demands time for production of necessary documents in support of proper accounting, the authority referred to in clause (a) shall release the goods on the condition that the dealer or such a person deposits a security equivalent to three times the amount of tax calculated on the value of the goods in the form of a demand draft or a call deposit drawn on a scheduled bank. (d) If penalty imposed under clause (b) is not paid forthwith or no security is furnished as provided in clause (c) or the goods are not claimed by any person, the authority referred to in clause (a) shall arrange for the safe custody of the goods. (e) In case the penalty imposed under clause (b) is not paid forthwith or the goods remain unclaimed for a period of fifteen days from the date of seizure, the goods so seized shall be sold by auction in the prescribed manner and the sale proceeds shall be appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority, on payment of a fee not exceeding fifty rupees, a licence in the form and manner and subject to such conditions as may be prescribed. (3) If any clearing or forwarding agent or dalal or person transporting goods within the State contravenes the provisions of sub- section (1) or sub-section (2), the Commissioner or any person appointed to assist him under sub-section (1) of section 3 may, after giving the person concerned a reasonable opportunity of being heard, direct him to pay by way of penalty, an amount equivalent to twenty per centum of the value of goods in respect of which no particulars and information has been furnished under sub-section (1). Explanation . For the purpose of this section (i) 'Dalal' shall include a person who renders his services for booking of, or taking delivery of, consignments of goods at a railway station, booking agency, goods transport company office, or any place of loading or unloading of goods or contrives, makes and concludes bargains and contracts for or on behalf of any dealer for a fee, reward, commission, remuneration or other valuable consideration or otherwise; (ii) 'person transporting goods' shall, besides the owner, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prise visit to the premises and godowns of the appellant- company and searched the premises and godowns. On September 2, 1993, notices were issued to the appellant-company to produce the documents to satisfy the authority about the proper accounting of the goods seized. The appellant challenged the legality of one of such notices before the learned single Judge of the High Court by way of filing a writ application (Civil Rule No. 2486 of 1983). The writ application was opposed by the State of Assam. The learned single Judge allowed the writ application following the decision of this Court in State of Haryana v. Sant Lal See [1993] 91 STC 321 (SC); (1993) 4 SCC 380.. The learned single Judge was of the opinion that the provisions contained in sections 42 and 44 of the Act are prospective in nature and, therefore, on the basis thereof the authority appointed under the Act had no jurisdiction to demand books of accounts prior to July 1, 1993. 9.. Aggrieved by the said order, the State of Assam preferred Writ Appeal No. 197 of 1996 before the Gauhati High Court and submitted that since the tax is levied under the aforesaid Act and whatever is ancillary or subsidiary provision necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transporter/carrier being stranger to the transaction of sale or purchase, they cannot be governed or regulated by a sales tax legislation. He further submitted that the division Bench of the High Court, however, failed to appreciate that the facts and circumstances as also the provisions of the Tripura Sales Tax Act and the Rules framed thereunder were totally distinct and different and, therefore, despite affirming the ratio of State of Haryana v Sant Lal1 this Court came to a different conclusion while upholding the validity of the provisions of the Tripura Sales Tax Act and the Rules framed thereunder. 14.. It was further submitted that this Court in the case of Tripura Goods Transport Association v. Commissioner of Taxes See [1999] 112 STC 609 (SC); (1999) 2 SCC 253. upheld the validity of the impugned provisions of the Tripura Sales Tax Act and the Rules framed thereunder in spite of the judgment of this Court in State of Haryana v. Sant Lal See [1993] 91 STC 321 (SC); (1993) 4 SCC 380. inasmuch as section 38 of the Haryana General Sales Tax Act which was the subject- matter of the examination before this Court in State of Haryana's case1 had expressly excluded transporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and the object of the Act being to deal with taxes in respect of sales or purchases of goods in the State of Assam, the provisions contained in section 42 so far as the transporters were concerned were contrary to the object and the restrictions imposed under the provisions of section 42 of the Act so far as the transporters were concerned were unreasonable. 18.. Learned counsel appearing for the respondent-State supported the impugned action of the respondents and submitted that the transportation being a part of the business, can be termed as ancillary to the business and in that view of the matter, the authority had jurisdiction to issue the notices Annexure II. 19.. On the above pleadings of the learned counsel appearing for the respective parties, the following questions require consideration: (1) Whether the provisions of the Assam General Sales Tax Act, 1993 are similar to the provisions of the Haryana General Sales Tax Act, 1973 or they are similar to the provisions of the Tripura Sales Tax Act, 1976. (2) Whether the provisions contained in section 42 requiring the transporters to furnish to the prescribed authority true and complete particulars and inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accepted norms of taxation the jurisdiction whatever is ancillary or subsidiary provision necessary for achieving the object of a tax statute is covered by entry 54 of List II of the Seventh Schedule to the Constitution of India. The entries in the legislative List have a very wide meaning and scope and should have a broad interpretation so as to make provisions in the Act workable and in the interest of the revenue. The obligation imposed upon the transporters under sections 42 and 44 of the Act is also a part of such preventive measures against any evasion of taxes and the same should not be read in a narrow sense. 22.. In our view, the transporters are not strangers to the sale or purchase of goods; to the contrary are parts and parcels and are directly involved in storing the goods purchased or sold by, and in many cases such, transactions are fictitiously carried on in false name and address besides false classifications vis-a-vis transportation of such goods in and outside the State making themselves party to the episode of such fictitious transactions for the sole purpose of evasion of tax by the dealers purchasing and selling such goods. 23.. The judgment of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is legitimate then to make him liable for such escapement of tax as has resulted from the breach by him of such obligation and to a reasonable penalty." 26.. Thus it is seen that sections 42 and 44 of the Act do not impose any liability upon the transporter, carriers, etc., to pay any sales tax under the Act. The said sections are basically meant to check the tax evasion. Thus the requirement of maintenance of document and the certificate of registration by a transporter or any such agent is only for similar purpose as incorporated under sections 36A and 38B of the Tripura Sales Tax Act, 1976 which has been held to be a valid piece of legislation by this Court in the case of Tripura Goods Transport Association v. Commissioner of Taxes See [1999] 112 STC 609 (SC); (1999) 2 SCC 253.. In our view, the present case is fully covered by the said judgment of this Court. 27.. The judgment of this Court in the case of State of Haryana v. Sant Lal See [1993] 91 STC 321 (SC); (1993) 4 SCC 380. has dealt in regard to section 38 of the Haryana General Sales Tax Act, 1973 which required the clearing or forwarding agent or any other person transporting goods including manager, agent, driv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irit and content is analogous to the Tripura Sales Tax Act and not similar to the Haryana General Sales Tax Act inasmuch as the Assam Act clearly defines the expressions "document of title to goods" and there is no disparity amongst such agents dealing with documents of title to goods. The argument of learned counsel appearing for the appellant that Explanation (ii) to section 42 of the Act was misinterpreted by the High Court holding the transporters to be dealers under the Assam Act has no merits. The contention of the appellant's counsel is based on misconception that the expression "goods carrier " in the Assam Act is qualified by the expression "other than" which qualifies the expression "a rail head or a post office". The preposition of appearing before the expression "a goods carrier carrying such goods" clearly shows that this expression is directly related to the words "person in-charge" giving the meaning that person in-charge of a goods carrier carrying such goods is included in the definition of "person transporting goods". 32.. Section 38 of the Haryana General Sales Tax Act, 1973 required clearing or forwarding agent, dalal or any other person transporting goods ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislative entry cannot be legislated upon under the entry. 33.. The division Bench of the Gauhati High Court while considering the impugned judgment had taken into consideration both the judgments of this Court as cited above and held that sections 29, 36A and 38B of the Tripura Sales Tax Act are in substance similar to sections 42 and 44 of the Assam General Sales Tax Act and uphold the provisions of the Assam Act in consonance to the judgment of this Court in the case of Tripura Goods Transport Association v. Commissioner of Taxes See [1999] 112 STC 609 (SC); (1999) 2 SCC 253.. In our opinion, there is no exclusion of any transporter/carrier from the definition of person dealing in "documents of title to goods". 34.. In view of the facts and circumstances of the case, the civil appeal deserves to be dismissed. The civil appeal is, accordingly, dismissed. However, there shall be no order as to costs. 35.. In Writ Petition No. 622 of 2000: As already noticed, the writ petition filed by M/s. A.B.C. (India) Ltd. was allowed by the learned single Judge of the Gauhati High Court on February 20, 1996 following the ratio laid down by this Court in the Case of State of Haryana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs/ carriers are neither dealers under the Assam General Sales Tax Act nor they in any way even remotely concerned/associated with the transaction of sale/purchase of any taxable goods. Furthermore, it does not handle the documents of title of goods and accordingly no liability arising out of the Assam General Sales Tax Act and the Rules framed thereunder can be fastened on any of the transporters, carriers which are members of the writ petitioners' Association. It was submitted that as the entire controversy arising out of the judgment of the division Bench of the Gauhati High Court dated January 4, 2000 was under consideration by this Court, the petitioners sought to file the above writ petition under article 32 of the Constitution of India challenging the validity of the Act and the Rules framed thereunder. 38.. This Court issued rule Nisi and tagged this petition along with Civil Appeal No. 2760 of 2000 arising out of S.L.P.(C) No. 5937 of 2000. 39.. A counter-affidavit was filed by the State of Assam contending that section 46A of the Act requires that every transporter/ carrier or a transporting agent operating its transport business relating to taxable goods in Assam i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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