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TMI Blog2003 (4) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... that may be specified or notified from time to time. With effect from April 1, 1997 up to June 30, 1997 a slab system for payment of turnover tax was notified as under: (i) 1 per cent for the first Rs. 5 crores turnover; (ii) 2 per cent for the next Rs. 5 crores turnover; (iii) 3 per cent for the turnover in excess of Rs. 10 crores. According to the petitioner, definition of "total turnover" is inclusive of sales commonly known as and referred to as central sales, export sales and import sales. In other words, turnover tax would be leviable not only on local sales but also on inter-State sales, export and import sales. A proviso to section 6-B of the Act provides that no turnover tax shall be payable, inter alia, on inter-State sales and export sales. But the quantum of such inter-State sales and export sales are included in the definition of "total turnover", and that, therefore, would constitute "total turnover tax" for the limited purpose of determination of rate of turnover tax. Inclusion of interState and export sales, even for the purpose of determination of the rate of turnover tax, is violative of a constitutional provision. Petitioner has referred to the details of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile upholding section 6-B of the Act has not specifically adverted to the present article 286 read with a decision of the Supreme Court in A.V. Fernandez v. State of Kerala [1957] 8 STC 561; AIR 1957 SC 657 for the purpose of finding out constitutional validity of section 6-B. Learned counsel says that notwithstanding upholding of section 6-B by this Court, this Court can still consider this plea. In so far as res judicata is concerned, learned counsel explains that the principle is not applicable to the facts of this case. 7.. Per contra, Sri Anand, learned Government Advocate, invites my attention to the various provisions to contend that section 6-B is constitutionally valid, and, as a matter of fact, this Court has already upheld its validity. His further submission is that the earlier judgment in the matter of constitutional validity comes in the way of reconsideration of the constitutional question for the second time by me in this petition. He has also invited my attention to the earlier orders to contend that the petitioner cannot be granted any relief by this Court. 8.. In the light of the submissions of the learned counsel on either side, I have carefully perused the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy is intended only on intraState turnover by reason of the proviso thereunder, and, therefore, it is not beyond the competence of the State Legislature. This Court no doubt notices A.V. Fernandez v. State of Kerala [1957] 8 STC 561 (SC); AIR 1957 SC 657. After noticing the Fernandez case [1957] 8 STC 561 (SC); AIR 1957 SC 657, this Court ruled that section 6-B did not intend to tax the turnover relating to non-liability under article 286 of the Constitution. This Court also noticed a judgment of the Supreme Court in Hoechst Pharmaceuticals Limited v. State of Bihar [1984] 55 STC 1, in which Fernandez case [1957] 8 STC 561; AIR 1957 SC 657 is explained. It is at this stage necessary to see the judgment of the Supreme Court in Hoechst Pharmaceuticals Limited v. State of Bihar [1984] 55 STC 1. The Supreme Court in para 93 in this judgment (page 38 of STC) notices the Fernandez case [1957] 8 STC 561; AIR 1957 SC 657. The Supreme Court ruled that Fernandez case [1957] 8 STC 561 is a clear authority for the proposition that the State Legislature notwithstanding article 286 of the Constitution while making a law under entry 54 of List II of the Seventh Schedule can, for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of on September 24, 1999 noticed P.B. Automobiles v. State of Karnataka [1984] 55 STC 93 and thereafter dismissed the petition. This Court upheld the constitutional validity of section 6-B. S.L.P. preferred has been rejected. In these circumstances, attack of levy on the ground of articles 14 and 19, etc., are to be rejected on account of a binding division Bench decision of this Court confirmed by the Supreme Court. Sri Anand, learned Government Advocate argued that Padmashri Plastics v. Commercial Tax Officer (W.P. Nos. 23964-65 connected with W.P. Nos. 4589 and 4586 of 1991 decided on September 24, 1999Karnataka High Court) has upheld section 6-B of the Act and therefore the same cannot be reagitated. He also argues that the petitioner himself filed an earlier petition and the same was disposed of with a direction to file an appeal. According to the learned Government Advocate, Padmashri Plastics v. Commercial Tax Officer (W.P. Nos. 23964-65 connected with W.P. Nos. 4589 and 4586 of 1991 decided on September 24, 1999-Karnataka High Court) is an estoppel to the petitioner. He strongly relies on the principle of constructive res judicata in this case. In fact, he strongl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed. (42) If this distinction is borne in mind, it is clear that section 26 of the Act enacts a provision with regard to non-liability of these transactions to tax and these transactions were therefore taken out of the purview of the Act. (43) We are therefore of opinion that the non obstante provision contained in section 26 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner could have at that time challenged the constitutional validity of section 6-B. He has failed to do so. This Court directed the petitioner to file an appeal, which he has filed in terms of the order. Writ Appeal also by the petitioner. In the light of an order of division Bench of this Court upholding the constitutional validity, this Court cannot once again consider the constitutional question in a separate second writ petition, that too at the instance of this petitioner. 14.. Principle of res judicata comes to the rescue of the respondent. A division Bench of this Court in the case of Manipur Vasant Kini v. Union of India ILR 1998 Kar 954 has considered the principles of res judicata and ruled in para 12 reading as under: "The underlying idea in the principle of res judicata and constructive res judicata is that the parties are not made to defend the same cause of action twice over, which had been concluded on merits between the parties by a court of competent jurisdiction. Repeated suits or writ petitions on the same cause of action filed in a court of law on the same pleas with little variation of arguments cannot be entertained as it would lead to wasting of the time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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