TMI Blog1957 (2) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... 52, 1952-53 and 1953-54. The best judgment assessment was made by the said authority rejecting the contention of the petitioner that he was not liable to sales tax as his turnover did not exceed Rs. 5,000 during the periods of assessment referred to above. According to the Sales Tax Officer the turnover in each of these assessment years exceeded Rs. 5,000 by taking into account the total turnover in respect of the cycle shop and pan shop which both belonged to the petitioner and that he was liable under section 3(1) of the Madhya Bharat Sales Tax Act. 3.. The Sales Tax Officer further levied penalty of Rs. 5 in respect of the assessment year 1951-52 and Rs. 10 in respect of each of the subsequent years under section 14(1)(a) for his failure to take a licence as required by section 6 of the Act and also charged Rs. 5 as licence fee for each of these years. 4.. The petitioner contends: "(i) That inasmuch as his turnover of imported goods did not exceed Rs. 5,000 during each of the three years for which the tax is levied (and that is the common ground) he is not liable at all for the payment of sales tax for these years and the order of Sales Tax Officer is illegal, ultra vires an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 19(1)(g) is not open to the petitioner in view of the decision of the Supreme Court that a law imposing a tax cannot be called in question on the ground that it interferes with his right guaranteed under Article 19(1)(g). (4) Article 14 of the Constitution cannot help the petitioner because the impugned law is equal as between equals. 9.. In reply to the merits of the contention, it is contended that both the shops, viz., "bicycle shop" and "pan shop", belong to the petitioner and that his plea that it belonged to his separated son has no force. It is said that no such plea was ever raised by the petitioner during the proceedings of assessment. It was further contended that the best judgment assessments made in these proceedings were lawful and were not in any way arbitrary. 10.. It was further submitted in the return that sections 2(p), 2(q) and 3(1) of the Sales Tax Act in question are not void or ultra vires the Madhya Bharat Legislature on the ground of their alleged inconsistency with Article 14 of the Constitution. The classification made is said to be rational and that proper justification existed for the classification made by the legislature having regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of Bihar(2). 14.. This also disposes of the other ground of the opponent that another remedy under the Act is open to the petitioner. The objection regarding another remedy under the Act cannot prevail where the complaint of the petitioner is as regards his fundamental right. Vide Himmatlal Harilal Mehta v. State of Madhya Pradesh(3), which reiterated (1) [1952] S.C.R. 572. (2) [1955] 6 S.T.C. 446; A.I.R. 1955 S.C. 661. (3) [1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403. the view of the Supreme Court in State of Bombay v. The United Motors (India) Ltd.(1) 15.. As regards the third objection in its nature preliminary that a composite petition in respect of different assessment years is not maintainable, the contention, to my mine, is untenable. There is no reason why a composite petition of this nature is not maintainable where grounds of attack for all the years are the same, common questions arise for consideration and the orders in question are practically simultaneous. Reference is made by the opponent to the decision in Inder Singh v. State of Rajasthan(2), but even there the procedure was not held illegal. 16.. On behalf of the petitioner Mr. Chaphekar raised only two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after deducting therefrom (i) the sale of goods declared tax-free under section 4 without payment of fees; (ii) the sale of goods declared tax-free under section 4(3) with payment of fees; (iii) turnover of goods for which no rate of tax has been notified or which have already been subjected to sales tax under this Act; (iv) all such other deductions as may be prescribed in the rules made under this Act; (v) 2 per centum of balance remaining after making all the above deductions." Section 2(q) defines "turnover." "'Turnover' means the aggregate amount for which goods are either sold or supplied for the payment received in respect of a contract by a dealer: Provided that the proceeds of the sales by a person of agricultural or horticultural produce, grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, or poultry or dairy products from fowls or animals kept by him shall be excluded from his turnover." 19.. Mr. Chaphekar's contention is that "turnover" in section 3 with reference to the present case means turnover of imported taxable goods. What he contends, in other words, is that the charging provision classifies dealers int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter of goods within the definition of the term in section 2(k) and since his turnover of Rs. 13,000 exceeded the taxable quantum fixed in the case of an importer of goods, he is liable although the taxable quantum for the residuary category was Rs. 25,000. 23.. The Trying Magistrate put the petitioner in the category of an importer of goods by reason of his imports worth Rs. 746 and as his turnover was Rs. 13,000, i.e., far in excess of the taxable quantum fixed for an importer, he held that he was bound to get himself registered as a dealer. Consequently he convicted him. The learned Additional District Magistrate, rejecting his petition for revision, held that all that mattered was that he had dealt in taxable goods in the year under (1) [1951] 2 S.T.C. 44. assessment. The turnover, according to him referred to the entire business and not merely the business as an importer of goods. 24.. Before the High Court the petitioner raised the correctness of the view of the Courts below. Hemeon, Ag. C.J., and Sen, J., who delivered the judgment of the Division Bench on reference by Mudholkar, J., observed as follows: "The effect of section 2(i) and rule 18 is to create three classes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Turnover' means the aggregate of the amounts of sale prices and parts of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of the sale or supply of goods in the carrying out of any contract, effected or made during the prescribed period; and the expression 'taxable turnover' means that part of a dealer's turnover during such period which remains after deducting therefrom(a) his turnover during that period on (i) the sale of goods declared tax-free under section 6; (ii) sales to a registered dealer of goods declared by him in the prescribed form as being intended for resale by him, or of goods specified in such dealer's certificate of registration as being intended for use by him in the manufacture of any goods for sale, and of containers and other materials used in the packing of such goods; (iii) sales to any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910, of goods for use by it in generation or distribution of such energy; (iv) such other sales as may be prescribed; and (b) two per centum of the balance remaining af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods whose turnover in the previous year in respect of sale or supply of goods exceeds Rs. 5,000 shall be liable to pay tax under this Act on his taxable turnover. (3) Every other kind of dealer whose turnover in the previous year in respect of sale or supply of goods exceeds Rs. 12,000 shall be liable to pay tax under this Act on his taxable turnover. Similar provisions will be worked out under the C.P. and Berar Sales Tax Act by analysing the provisions quoted above. 30.. I am therefore inclined to accept the contention of Mr. Chaphekar regarding the applicability of the aforesaid decision of the Nagpur High Court in this case. Following that decision I hold that in order to bring the business of selling cycle parts imported from outside the State, within the limits of taxability, the turnover in respect of that business must exceed Rs. 5,000. It is not enough that the turnover in respect of imported cycle parts and other business exceeds Rs. 5,000. 31.. Deputy Government Advocate Mr. Patel's contention as regards the difference in the two Acts is not tenable in view of the aforesaid discussion. 32.. As I have held in favour of the petitioner on the first question I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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