STATE OF ORISSA Vs. GOBINDA RATH
LAWS(SC)-1960-9-35
SUPREME COURT OF INDIA (FROM: ORISSA)
Decided on September 20,1960

STATE OF ORISSA Appellant
VERSUS
GOBINDA RATH Respondents


Referred Judgements :-

UNION OF INDIA VS. UNITED MOTORS INDIA LIMITED [REFERRED TO]



Cited Judgements :-

DHIRENDRANATH DAS VS. STATE OF ORISSA [LAWS(ORI)-1969-5-3] [REFERRED TO]


JUDGEMENT

- (1.)The respondent is a dealer in fish, who purchases fish at Balugaon in orissa and exports the same to Calcutta where the fish is -sold to different customers. The Sales Tax Officer, Puri (Second Circle) , assessed the respondent to sales tax for four quarters ending on 30/06/ 19/09/1949 /09/ 30, 19 4/12/1949, and 31/03/1950- IN the assessment orders the Sales Tax Officer did not find that the sales had taken place in orissa in respect of the fish which was exported to Calcutta. We may quote one of the assessment orders to show on what basis the Sales Tax Officer proceeded. In his assessment order for the quarter ending 30/06/1949, the Sales Tax Officer said:
"The dealer deals in fish. In response to the notice under section 12 (5) , he did not submit any return nor did he produce any accounts as directed in the said notice. On referring to his application filed by him on 29-1-51 in Form II for his registration, I find that his gross turnover was far in excess of Rs. 5,000. 00 during the year ending 31-3-49- 'hence his liability for. registration ensued from 1-4-49-

It is ascertained through local enquiries that he sold 181 mds. 36 srs. of fish to dealers belonging to other States and 19 mds. 30 srs. to local dealers. It is further ascertained that the sale price of the fish was Rs. 45. 00 Per maund during the quarter under assessment. On the basis of the above data, I determine his gross turnover at Rs, 9,044-11-6 or Rs. 9,045. 00- Out of this sum, he is allowed Rs. 181-0-0 under section 5 (2) (b). His taxable turnover is thus determined at Rs. 8,864. 00-0-0 on which he should pay tax 0-0-3 pies in the rupee. Tax payable comes to Rs. 138-8-0.

The dealer's failure to apply for registration in time is considered to be wilful especially when he happens to be a dealer of Balugaon, one of the chief business centres of this Circle where almost all dealers have got themselves registered in time. I, therefore, direct that he should pay Rs. 50. 00 by way of penalty for his default in this respect. "

(2.)Similar orders were passed for the other three quarters. There is no dispute about the local sale of fish in orissa. The dispute is only about the fish exported to Calcutta. The respondent appealed against the assessment orders and contended that the fish exported to Calcutta was not sold in orissa and he was not liable to tax under the orissa Sales Tax Act, 1947 (orissa Act XIV of 1947) in respect of such sales. The appellate authority did not accept the contention of the respondent. The respondent then made an application in revision and raised the same contention that the fish exported to Calcutta was not sold in orissa. The Collector of Commercial Taxes rejected the application.
(3.)The respondent then moved the High court by means of a writ petition. The High court held that the sales in the quarter after the coming into force of the Constitution were clearly outside orissa, as the fish exported to Calcutta was delivered as a direct result of the sale for the purpose of consumption in the delivery State. The High court REFERRED TO the decision of this court in The State of Bombay and Another v. The United Motors (India) Ltd. and Others. As to the quarters prior to the Constitution, the High court held that its decision in another case, that of Messrs Chakobhai Ghelabhai, applied and by reason of the repeal of the second proviso to section 2 (g) of the orissa Sales Tax Act, 1947, by the Adaptation of Laws Order, 1950, respondent was not liable to sales tax. Accordingly, the High court allowed the writ petition and quashed the assessment orders.
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