PALLIVASAL CO-OPERATIVE CARDAMOM PRODUCING SOCIETY, LTD Vs. STATE OF KERALA
LAWS(KER)-1967-6-37
HIGH COURT OF KERALA
Decided on June 12,1967

Pallivasal Co -Operative Cardamom Producing Society, Ltd Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

P.GOVINDAN NAIR,J. - (1.) THE petitioner questions his liability to be taxed under the Kerala General Sales Tax Act,1963.He is a producer of cardamom and his contention is,as stated by his counsel,and also in the objection Ext.P -2 that he had taken before the assessing authority,that the sales by him of the produce grown in his own land cannot attract tax under the Kerala General Sales Tax Act,1963.For this contention support is sought to be gained from the definition of the term "dealer "in section 2(viii)of the Act.The relevant part of that definition runs thus: "'dealer 'means any person who carries on the business of buying selling,supplying or distributing goods,directly or otherwise,whether for cash or for deferred payment,or for commission,remuneration or other valuable consideration and includes " (a)¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦ ;. (b)¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦ ;. (c)¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦ ;.. (d)¦¦¦¦¦¦¦¦¦¦¦¦¦¦¦ ;.. (e)a person who sells goods produced by him by manufacture,agriculture,horticulture or otherwise."
(2.) COUNSEL for the petitioner has urged that the latter part of the definition,which I may term an inclusive part stating that dealer includes a person who sells goods produced by him by manufacture,agriculture,horticulture or other­wise must be read with the earlier part of the definition which talks of a person who carries on the business of buying,selling,etc.In other words his argument is that it is not all persons who sell goods produced by them by agricul­tural operations that are dealers within the meaning of the term dealer but only such of them who also carry on the business of buying or selling.Counsel states,that only such of the producers by agricultural operations who also carry on the business of buying and selling of the goods of the kind produced by them that can come within the definition.This means that I must read the latter part of the section as. "a person who sells goods produced by manufacture,agriculture,horticulture or otherwise,and who carries on the business of buying and selling such goods." I see no justification for adding these words to the section.The definition of the term 'dealer 'in the General Sales Tax Act,1125,before it was amended did not contain a provi­sion similar to what is contained in clause(e)of sub -section(viii)of section 2.That section was interpreted by this Court in the decision in K.M.Muhammed v. Sales Tax Officer,Kozhikode 1961 K.L.T.843 and it was ruled that a person selling his own produce from his own land will not be a dealer within the meaning of the term in section 2(d)of the General Sales Tax Act,1125 as it stood before the amend­ment.After that decision section 2(d)of that Act was amended and the amended section read as follows: "'dealer 'means any person who carries on the business of buying or selling goods,and includes a person who sells goods produced by him by manufacture,agriculture or otherwise." The section in the Kerala General Sales Tax Act,1963 which I have read is practically the same as the amended section 2(d)of the General Sales Tax Act,1125.The amendment came in the wake of the decision of this Court.And if it is permissible to look into the legislative history "I think it is "it indicates that the object was to rope in persons who would not otherwise fall within the definition of the term ˜dealer 'as it stood before section 2(d)of the General Sales Tax Act,1125 was amended.Apart from this I see no ambiguity or lack of clarity in the definition.In fact it appears to me the section can be read only in one way;so as to include persons who sell goods produced by them in their own land by agricultural operation.This being so there is no scope for applying the rule that in taxing statutes,if there is any doubt,the doubt must be resolved in favour of the person who is,sought to be taxed.I think this contention of counsel cannot stand.This is so even when the definition of the term 'dealer 'is read along with the definition of sale contained in section 2(xxvii)of the Kerala General Sales Tax Act,1963.The contention of counsel in this regard therefore cannot stand.
(3.) IT was next urged with reference to the exemption that has been granted by section 2(viii ),explanation 1(ii)which states that "agricultural or horticultural produce shall not include tea,coffee,rubber,cardamom or timber "that there has been discrimination.Reference was made to the observations of the Supreme Court in the decision in Kunhikoman and others v.State of Kerala 1962 K.L.T.( S.C.) 42.It is sufficient to extract what is stated in the head -note. "There is no appreciable difference between the economics of tea,coffee and rubber plantations and areca and pepper plantations.Considering the object and purpose of the Act and the basis on which exemption has been granted under Chapters II and III to plantations as defined in the Act,there appears to be no reason for making any distinction between tea,coffee and rubber on the one hand and areca and pepper on the other.The reasons which call for exemption of tea,coffee and rubber plantations equally apply to areca and pepper plantations and there is no intelligible differentia related to the object and purpose of the Act which would justify any distinction in the case of tea,coffee and rubber plantations as against areca and pepper plantations." On the above basis it is argued that the exemption that has been granted with reference to the turnover relating to cardamom,tea,coffee,rubber and timber is discrimina­tory,in that there is no reason why the turnover relating to areca or for that matter pepper should be excluded from the exemption,for,according to counsel for the petitioner then stand on the same footing as the enumerated items in the exemption.The allegations in regard to this matter is contained in paragraph 7 of the affidavit in support of the petition which read thus: "Furthermore,section 2(xxi)Explanation(1)relied on by the 2nd respondent and section 2(xxvii)Explanation(1)of the Act are clearly discriminatory for the reason that tea,coffee,rubber,cardamom and timber have been picked out arbitrarily and subjected to a special burden without any reasonable basis or classification,thereby infringing Article 14 of the Constitution.The said provisions are,therefore,unconstitutional and void." In this paragraph of course there is no reference to areca or pepper and there is no allegation that pepper and areca stand on the same footing on the exemptional items.There is only the general assertion that the exemption is discri­minatory.I think these allegations are not sufficient to support the argument such as the one that has been advanced,for,I think it must be more specific and it must atleast state that compared to such and such items not exempted there has been discrimination.I do not therefore wish to pronounce on this matter in this case,for the State have had no opportunity to counter the specific argument that has been advanced before this Court.What has been said by the Supreme Court was no in relation to a taxing statute and I do not wish to consider the question as to whether those observations will equally apply to a taxing statute in this case.I therefore leave this question open to be agitated if necessary in other cases.;


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