COMMISSIONER OF COMMERCIAL TAXES Vs. ABDUL SHAKOOR AND SONS

JUDGEMENT

(1.) By an order dated 11th November, 1972, this Court directed the Commercial Taxes Tribunal, Bihar (hereinafter referred as "the said Tribunal"), to state the case and to refer the following question of law to this Court: Whether lemon is a type of goods which is exempted from the levy of general or special sales tax by item 11 of Schedule III or any other item of Notification No. STGL-AR-107/59-9134-F.T. dated the 1st July, 1959?

(2.) Thereafter on 8th August, 1975, the Tribunal forwarded the statement of the case to this Court, from which it appears that the respondent carried on business under the name and style, M/s. Abdul Shakoor and Sons, at Kedarnath Market, Gaya, and he dealt with inter alia in fruits and vegetables. For the financial year 1961-62, the respondent returned a gross turnover of Rs. 68,292.29 and claimed that the turnover of Rs. 34,530.69 comprised within the gross turnover was exempted from the tax as it represented sales of green vegetables.

(3.) The Assistant Superintendent of Commercial Taxes, Gaya, by his order of assessment dated 18th November, 1964, disbelieved the books of account. He disallowed the claim for deduction on account of sales of green vegetables to the extent of Rs. 2,627 perhaps on the ground that lemon was not a vegetable. The respondent filed an appeal which was heard by the Appellate Assistant Commissioner, Commercial Taxes, who remanded the case to the assessing officer to consider specifically as to whether lemon was a green vegetable exempted from sales tax, both general and special. After remand the assessing officer affirmed his earlier order of assessment and reiterated that lemon was not a tax-free commodity. The dealer again went in appeal and the Appellate Assistant Commissioner held that lemon did not come under the purview of green vegetables and has been rightly treated as a fruit. Thereafter, the dealer went up in revision before the Deputy Commissioner, Commercial Taxes, who was of the view that lemon was a green vegetable and, as such, exempted from tax. On that finding, the Deputy Commissioner remanded the case to the assessing officer for fresh assessment. Being aggrieved by that order, the Commissioner of Commercial Taxes filed a revision application under Section 31 of the Bihar Sales Tax Act, 1959 (hereinafter referred as "the Act"), to the Tribunal. The Tribunal by order dated 3rd November, 1969, concluded that lemon was not a fruit and it should be considered as a green vegetable.