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TMI Blog1968 (6) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax Act, 1959, hereinafter referred to as "the Act", for the grant of authorization on the ground that the turnover of sales of goods exported by it during the year 1962-63 outside the territories of India from the State of Gujarat exceeded the limit of Rs. 30,000. The opponent supported the application by the invoice dated 7th March, 1963, showing that crude groundnut oil of the value of £ 48,008-15-0 was exported by sea under c.i.f. contract from Bhavnagar to Malaga in Spain. The invoice was issued by the Bombay office of the opponent-firm. The opponentfirm also filed a revised return for the quarter ending 31st March, 1963, in which the sale of this oil was included. By the order, dated 31st March, 1964, the Sales Tax Officer filed the application. In appeal the Assistant Commissioner of Sales Tax came to the conclusion that there was no evidence from which it could be proved that the transaction was of sale by the registered dealer under the Act with the place of business in the State of Gujarat and he accordingly dismissed the appeal. In second appeal, the Tribunal observed that the real question to be decided was whether the sale was made in the State of Gujarat wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such further period as may be prescribed, by himself or by another authorised dealer to whom he resells the goods. Under section 12(2) where an authorised dealer gives such a certificate and the goods specified in such certificate are sold to another authorised dealer, he shall, when he resells the goods, send to the first mentioned authorised dealer a certificate in the prescribed form, stating inter alia whether goods were resold in the course of inter-State trade or commerce or in the course of export out of the territory of India and the date on which the goods were sold. From this scheme it is clear that this authorization certificate gives important privileges and, therefore, the opponent-assessee had applied for this authorization certificate under section 24 of the Act. The relevant conditions, in so far as the present case is concerned for getting authorization by a dealer under section 24, are: (1) he must be a registered dealer, (2) turnover of his sales during the previous year or the current year must exceed Rs. 30,000, and (3) the turnover of sales must be of those goods which are exported by him from the State outside the territory of India, as the subsequent part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation which is material for our purpose, runs as under: "For the purposes of this clause, a sale within the State includes a sale determined to be inside the State in accordance with the principles formulated in sub-section (2) of section 4 of the Central Sales Tax Act, 1956." It is clear on a combined reading of these two definitions in section 2(36) and 2(28) that the "turnover of sales" means the aggregate amount of the sale price in respect of any sale of goods, provided such sale of goods is made within the State. For the purpose of this Act the Explanation has given an extended meaning to the words "sale within the State", by including in that concept any sale which is determined to be inside the State in accordance with the principles formulated under section 4(2) of the Central Sales Tax Act, 1956, hereinafter referred to as "the Central Act". In the Central Act section 3 defines a sale in the course of inter-State trade or commerce. Section 5 defines a sale which takes place in the course of export. Section 4(1) provides that subject to the provisions contained in section 3, when a sale or purchase of goods is determined in accordance with sub-section (2) to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) or (b), would be within the State. If, therefore, this Explanation is to apply to the sale of the goods shipped as per the invoice in question, the sale would be within the State of Gujarat and it can be included within the turnover of the sales of the opponent under section 2(36) of the Act. The learned Advocate-General, however, raised a very ingenious contention. He pointed out that the case had proceeded on the footing that this was a sale in the course of export. Section 24, no doubt, uses the expression of the widest amplitude, by providing in this connection the consideration of turnover of sales, in the previous or current year, of all the goods which were exported by the registered dealer from the State outside the territory of India, irrespective of export or otherwise. In fact, if we consider the provisions dealing with the authorised dealer, which we have already mentioned, and particularly the certificate in section 12, which enables the deductions to be made of the sales or resales to the authorised dealer from the vendor's gross turnover, it is clear that it is only when the authorised dealer complies with the requisite conditions by giving the prescribed certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or the rules shall be deemed to impose or authorise the imposition of a tax on any sale or purchase of any goods, in so far as such sales or purchases take place outside the State or are in the course of import into or export outside the territory of India or in the course of inter-State trade under clauses (a) and (b). There being a constitutional embargo and as the State Legislature lacked the taxing power, it is in terms provided in section 75 that for creating liability to taxation those sales or purchases outside the State or in the course of import into or export out of the territory of India or in the course of inter-State trade cannot be included; they would not be within the purview of the Act, because any other construction would entitle the State Legislature to impose or authorise imposition of sales tax on the sale or purchase of the said goods outside the State or in the course of import into or export out of the territory of India, or in the course of inter-State trade, ignoring the embargo created by the Constitution. The Explanation to section 75 only provides that the principles in sections 3, 4 and 5 of the Central Act would be applied to determine when a sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assent of the other party was prior or subsequent to such appropriation. The learned AdvocateGeneral in this connection relied upon the decision of the Supreme Court in A.V. Fernandez v. The State of Kerala[1957] 8 S.T.C. 561. In that case the question had arisen whether the inter-State sales should be taken into account for the purpose of finding out the net taxable turnover. In the TravancoreCochin General Sales Tax Act, 1125, the non obstante clause in section 26 as amended by the amendment in 1951 was as under: "Notwithstanding anything contained in this Act,(a) a tax on the sale or purchase of goods shall not be imposed under this Act,- (i) where such sale or purchase takes place outside the State of Travancore-Cochin; or (ii) where such sale or purchase takes place in the course of import of the goods into, or export of the goods out of, the territory of India........" Their Lordships in terms pointed out at page 572 that they were not called upon to express any opinion as to whether the incorporation of the provisions of Article 286 of the Constitution in the charging section, as it was done in the Assam Sales Tax Act, 1947, or in the definition of "sale" as it was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax liability and, therefore, in that context their Lordships held that the non obstante clause must be given an overriding effect, as the very fact of their nonliability to tax was sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax could be levied or imposed. The final ratio of that decision was that the non obstante provision contained in section 26 of the Act had the effect of taking those transactions out of the purview of the Act with the result that the dealer was not required nor was he entitled to include them in the calculation of his turnover liable to tax thereunder. Their Lordships however, at page 575 observed as under: "This position is not at all affected by the provisions with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The Legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Article 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealer's turnover. Such inclusion, however, for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all."In Shamrao V. Parulekar v. District Magistrate, Thana, BombayA.I.R. 1952 S.C. 324., while explaining this doctrine, their Lordships of the Supreme Court observed as under: "The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England: see Craies on Statute Law, 5th Edition, page 207; it is the law in America: see Crawford on Statutory Construction, page 110; and it is the law which the Privy Council applied to India in Keshoram Poddar v. Nandulal Mallick(1927) 54 I.A. 152 at p. 155 (P.C.). " On this do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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