THE DEPUTY COMMISSIONER OF AGRL. INCOME TAX AND SALES TAX Vs. MAMMOOTTY
LAWS(KER)-1968-10-41
HIGH COURT OF KERALA
Decided on October 22,1968

The Deputy Commissioner Of Agrl. Income Tax And Sales Tax Appellant
VERSUS
MAMMOOTTY Respondents

JUDGEMENT

Raghavan, J. - (1.) WHETHER pine -apple is a vegetable, and consequently a green fruit, is the short question to be decided in this tax revision case. The assessee claimed exemption under section 9 of the Kerala General Sales Tax Act, 1963 on the ground that pine -apple was a green fruit coming under item 10 of the third schedule to the Act. This claim was rejected by the Sales Tax Officer and the Appellate Assistant Commissioner, but was accepted by the appellate Tribunal. The finding of the Tribunal that pine -apple was a green fruit is challenged before us. The assessee did not appear, and therefore, we requested Mr. M.I. Joseph to appear amicus curiae and assist us. Mr. Joseph has placed a few decision and has also adduced some useful argument on the question before us.
(2.) TWO decisions of the Supreme Court are brought to our notice; and they are Ramavatar Budhaiprasad v. Asst. Sales Tax Officer, Akola (XII S.T.C. 286) and Motipur Zamindary Co. (P) Ltd. v. State of Bihar (XIII S.T.C. 1). In the second case, the Supreme Court followed its decision in the first case; and in the first case, the Supreme Court considered whether betel leaves were vegetables under the C.P. and Berar Sales Tax Act, 1947. In considering the meaning of the word 'vegetables' the Supreme Court approved the decision of the Madhya Pradesh High Court in Madhya Pradesh Pan Merchants' Association, Santra Market. Nagpur v. The State of Madhya Pradesh ( : 7 S.T.C. 99). The Madhya Pradesh High Court held in that decision that the word 'vegetables' could not be given the comprehensive meaning the term had in Natural History and the term should be understood as commonly understood denoting "those classes of vegetable matter which are grown in kitchen gardens and are used for the table". Ultimately, the Supreme Court observed the the word Vegetables' in taxing statutes should be understood "as it is understood in common parlance, i.e., denoting the class of vegetables which are grown in a kitchen garden or in a farm and are used for the table". In discussing the question the Supreme Court referred to the Canadian decision in Planters Nut and Chocolate Co. Ltd. v. The King (1952 1 D.L.R. 385). The Supreme Court of Canada was considering in that case the meaning of the word 'Vegetables', in particular, the question whether peanuts and cashew nuts were vegetables. The Court held that the words 'fruits' and 'vegetables' were to be construed as they were understood in the popular sense, i.e., in the language of Lord Tenterden in Attorney General v. Winstanley (6 E.R. 740), "as the words are understood in common language" and not as they are "applied to any particular science or art". In the course of the discussion, the Supreme Court referred to Webster's International Dictionary defining the word 'vegetable and quoted the passage: A plant used or cultivated for food for man or domestic animals as the cabbage, turnip, potato, bean, dandelion, etc., also the edible part of such a plant, as prepared for the market or the table. Vegetables and fruits are sometimes loosely distinguished by the usual need of cooking the former for the use of man, while the latter may be eaten raw; but the distinction often fails, as in the case of quinces, bearberries, and other fruits, and lettuce, celery and other vegetables. Tomatoes if cooked are vegetables, if eaten raw are fruit. The Court also referred to the Encyclopaedia Britannica defining the word 'vegetable and quoted the passage: The edible portions of many plants considered as vegetables are, in a botanical sense fruits. The common distinction between fruits and vegetables is often indefinite and con fusing, since it is based generally on how the plant or plant part is used rather than on what it is "Fruit", the Encyclopaedia Britannica says, is more often employed to denote a group of edible parts of plants, as contrasted with another group termed 'vegetable'. But the term is a loose one, including, e.g., the stalks of the rhubarb.
(3.) THUS , the usual distinction - -the common man's distinction - -between fruit and vegetable is that the former can be eaten raw while the latter has to be cooked before eaten. As already pointed out, this distinction fails in the case of quite a number of articles (edible parts of plants). Still more, tomatoes, if eaten raw, are fruits, but, if eaten cooked, are vegetables. Such instances are available among other articles too. Cucumber cucumis sativus) is eaten raw in its unripe state and in its ripe state is not eaten raw, but eaten only cooked. Can it be said that unripe cucumber is fruit while ripe cucumber is vegetable? In common parlance, cucumber is only vegetables whether ripe or unripe. Again, articles like mangoes, plantains, bananas, etc. are eaten raw when ripe but are usually cooked before eaten when unripe. In common parlance again, the unripe variety of such articles are vegetables while the ripe ones are fruits. As the Supreme Court of Canada has pointed out in the decision cited, in such cases it is the meaning which people conversant with the subject -matter attribute to the term 'vegetable' or 'fruit' that has to be taken. To put it pithily in the language of the Canadian Supreme Court: Would a householder when asked to bring home fruits or vegetables for the evening meal bring home salted peanuts, cashewnuts, or nuts of any sort? The answer is obviously 'no'. The same test must be applied in the present case as well: will a householder or housewife bring pine -apple if he or she is asked to bring vegetables for preparing a meal? In our opinion, the answer to this question must also be in the negative. Therefore, pine -apple is not a vegetable.;


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