TaxTMI 
TaxTMI 
2016 (1) TMI 6
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....ners have challenged the constitutional validity of some of the provisions of the Maharashtra Purchase Tax on Sugarcane Act, 1962 (for short "the Act of 1962"). Since common questions of fact and law are involved, all these Petitions are disposed of by this common judgment. 2) We grant Rule in some of the Petitions which have been listed for admission and along with others which are ready for hearing. Even these Petitions would be disposed of finally by this judgment. In other words, since all parties agreed and are present before the Court, with their consent, the Petitions are disposed of finally by this judgment. 3) The leading argument canvassed is in Writ Petition No. 2060 of 1997. We would refer to the facts in this Writ Petition. 4) The Petitioner is a Co-operative Society registered under the Maharashtra Co-operative Societies Act, 1960. It is a Co-operative Sugar Factory situate at Nashik District of Maharashtra. The Respondents to the Petition are the State, Commissioner of Purchase Tax (Sugarcane), Purchase Tax Officer (Sugarcane). The Petitioner also holds licence under the Act of 1962. It is stated that the Petitioner, at its factory, manufactures sugar and al....
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....cted a tax on the purchase of sugarcane being purchased for use in the manufacture or production of sugar in a factory or a unit. By section 3A, which was inserted by Maharashtra Act 15 of 2011, certain provisions of the Maharashtra Value Added Tax Act, 2002 and Rules made thereunder are made applicable so far as they relate to the electronic filing of returns and electronic payment of tax, or any amount payable under this Act of 1962. 6) The Act of 1962 has been amended on several occasions. By section 4, taxing and licensing authorities are set out and that is how the State Government can appoint an officer to be called the Commissioner of Purchase Tax (Sugarcane) and may appoint one or more officers to assist such Commissioner for the purpose of functions under this Act and give them such designations as may be prescribed. By section 5, there is a provision made for issuance of a licence for purchasing sugarcane for use in the manufacture or production of sugar. By section 6, every occupier liable to pay tax under the Act of 1962 shall, within thirty days after the end of every month to which the return relates, submit a monthly return in the prescribed form to the Commission....
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....1962. It is the case of the Petitioners that by the amending Act XVI of 1995, the Act of 1962 was radically changed so as to provide for levy of tax on the purchases of sugarcane based on the purchase price instead of the quantity purchased. The Petitioners therefore challenge the validity of the said amendments carried out by this Amendment Act. It is the case of the Petitioners that by the amendments, the definitions of "purchase price, "turnover purchases", which were not in the original Act, were introduced for the first time. The definition of the term "purchase" was also inserted for the first time to mean purchase of sugarcane made within the State of Maharashtra for a valuable consideration and includes the supply by a shareholder to a Co-operative society for cash, deferred payment or other valuable consideration. The Petitioners, therefore, submit that these sweeping changes in the Act of 1962 adversely affected the sugar units like the Petitioners. The earlier system was to allow the units to make payments of purchase tax by two installments, 50% payable during the season while the balance 50% was allowed to be paid in five equal installments during off season. The amend....
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....s to ignoring the meaning of the phrase "the amount charged". The Petitioners complain that if provisions are read in the context in which they appear, it is apparent that wherever the cultivator charges separately to the occupier the amount for transporting the sugarcane severed from the farm to the factory gate, such amount would form part of purchase price. There can be no dispute about such an addition, but according to the interpretation placed by the Respondents, any expenditure incurred by the factory or the Petitioners, distinct separate and independent of the purchase of sugarcane in question, would also have to be included or added to the consideration paid to the cultivator. This interpretation, according to the Petitioners, runs counter to the provisions of the Sale of Goods Act, 1930 as also the principles which determine the transfer of title to the goods from the buyer to the seller. 9) The Petitioner then refers to several other Acts enacted by the Parliament and particularly the Essential Commodities Act, 1955, the control orders pertaining to sugarcane thereunder. They also refer to the provisions of Sale of Goods Act and all this is referred and relied upon to....
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....ving the information about sugarcane plantation, the same is counter-checked by the staff employed by the factory owner as the field Mukadam, who would verify the area of plantation, the quality of the sugarcane in question, the date of plantation etc. After receiving such a scrutiny report from the field Mukadam, the Agricultural Department records the finding in a separate register mentioning therein the name of the cultivator, the date of plantation etc. After the cultivator satisfies the correctness of the information as confirmed by the report of the field Mukadam, the factory in question would issue a certificate on the basis of which the cultivator, if he so desires, can obtain the finance from the bank which is known as crop loan so that he can meet the expenses of cultivation including the cost of fertilizers, pesticides, wages to workers etc. As per the system and the procedure adopted in the State of Maharashtra, the crop loan so granted to the individual cultivator, may be by a bank or the co-operative credit society, is again required to be adjusted against the sale proceeds of the sugarcane purchased from the cultivator in question. 32. Each factory would pre....
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....lways vests with the sugar factory in question, though in the eyes of law, the sugarcane can be said to have been purchased only when the sugarcane is severed from the firm in question. After its severance, the cultivator transfers the physical property or the title to the goods by delivering the severed sugarcane to the agent of the buyer-sugar factory. Therefore, the point of time when the transaction of sale by the cultivator and the purchase by the sugar factory, can be said to have been fructified, is the time when the delivery of the sugarcane is given by the cultivator to the representative of the sugar factory in question. That necessarily would mean that the seller cultivator would not be responsible for any damage or loss to the sugarcane in question after he delivers the sugarcane to the representative of the sugar factory in question. It would not be his concern as to how and by which mode the sugarcane so collected is transported by the buyer/sugar factory to his factory, whether such transport is through a bullock cart, camel cart or by a motor truck or whether such a vehicle is owned by the buyer himself or not. As far as the cultivator is concerned his responsibilit....
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....s delivered to the Collecting Centre or to the representative of the factory owner/Petitioners. It is at that time the sale by the cultivator and the purchase by the factory owner would be complete. The culmination of that transaction does not depend on the later weighment at the weigh bridge, which is to be done only for the purpose of proper accounting and quantification of the amount payable to the concerned cultivator. The reference is then made to the procedure adopted by sugar factories in the State of Maharashtra and it is complained that for the reason best known to the Commissioner (Respondent No. 2), there is a misinterpretation of the provisions of the Act. That is how uncalled for and unwarranted additions are made to the consideration agreed to be paid to the cultivator. The Petitioners have been submitting their returns, but the complaint is that though there is a provision of assessment in the Act, there is no assessment made for the period covered by the amendment with effect from 1st October, 1995. Though there was no such assessment, Respondent No. 3, by his letter dated 19th October, 1996, called upon the Petitioners to provide the information sought therein. He ....
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....den of tax as compared to the Karkhanas which pay higher prices for sugarcane. In order to remove disparity and ensure social justice, the amendments were carried out from 1st October, 1995 to change the structure of taxation. Though it is stated that the Petitioner has not challenged the legality and validity of the amended provisions, it is apparent that after the affidavit was filed, one opposing admission on 20th June, 1997 and the other on 13th April, 2010, the amendments have been made to the Writ Petition. Thus, the validity of the amended provisions has also been challenged. The Commissioner asserts that the field of legislation in respect of the levy of tax on sale or purchase of goods is set out in Entry 54 of List II of the 7th Schedule to the Constitution of India. The Bombay Sales Tax Act, 1959 is enacted by the legislature for levy of Sales Tax on goods. Entry 44 of Schedule 'A' of the Bombay Sales Tax Act, 1959 gives exemption to the levy of tax on sale and purchase of sugarcane. The tax on purchase of the sugarcane is under the Act of 1962. It is therefore within the field of legislation provided by Item No. 54 of the List II of the VIIth Schedule to the Con....
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....ated as a purchase price and the tool of calculation of purchase price cannot be said to be tax on expenses. In these circumstances, there is no merit in the Petitions and it should be dismissed. 17) Then, and upon the amendment to the Writ Petitions,, an affidavit has also been filed in Writ Petition No. 2364 of 1999 filed by the Ravalgaon Sugar Farm Limited. Independently, this Writ Petition is raising an identical challenge. The reply, therefore, is in identical terms. The same principles are relied upon to support the levy. Hence, we need not refer to the facts in the other Petitions in detail. Similarly, in other Petitions, which were heard along with Writ Petition No. 2060 of 1997, the challenge being identical, the pleadings are identical. Some of the Petitions have been called from the Benches of this Court at Aurangabad. 18) Mr. P. C. Joshi, learned Counsel led the arguments on behalf of the Petitioners. His arguments were adopted by others and they only made some factual additions thereto. It would be advantageous to refer to the arguments of Mr. Joshi. 19) Mr. Joshi contends that if the Act originally enacted and later on amended is perused, it would be evident ....
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.... clause. The impugned letters cannot be saved by the amendments. Mr. Joshi has referred to the full text of Maharashtra Act XX of 2002. He would submit that section 1(2) (a) of this Maharashtra Tax Laws (Levy and Amendment) Act, 2002, Maharashtra Act XX of 2002 refers to the amendments to the Act of 1962. He would submit that these amendments do not restore the earlier position. 21(A) Mr. Joshi's contentions can be summarised as under:- The aforesaid Act was amended on more than one occasion but in the Petition, the amendment by the Maharashtra Tax Laws (Levy and Amendment) Act, 1995 with effect from 1st October, 1995 and the subsequent amendments by the Maharashtra Ordinance VI of 1998 read with Maharashtra Act 20 of 2002 and the Exemption Notification under section 12B of the said Act dated 29th March, 2003 read with Circular No. 12T of 2003 dated 31st March, 2003 coupled with the amendment by the Maharashtra Act 8 of 2003 dated 29th March, 2003 are questioned. The Petition also challenges the validity and correctness of the latest circular issued by the commissioner of Sales Tax dated 23rd November, 2009 being Trade Circular No. 31T of 2009 on various grounds set out in t....
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....ging those orders of assessment alongwith the legality of amendments and the circulars mentioned herein above. 21(F) Much before the orders of assessment that were passed, the Petitioner was being continuously pressurised with directions by the Respondent to make the payment of purchase tax on sugarcane purchase also on the expenses incurred for transportation of the sugarcane from the crop growing centre to its factory by adding harvesting and transport expenses to the actual consideration paid by the Petitioner to the cultivators as purchase price from time to time. 21(G) After amendment through the Maharashtra Act XVI of 1995, with effect from 1st October, 1995, the Governor of Maharashtra issued an Ordinance bearing No. VI of 1998 on 1st May, 1998 whereby the purchase amount "charged" wherever it appeared in the entire enactment, was deemed to be substituted from 1st October, 1995 by the word "spent". That also has been challenged through the amendment to the Petition under the permission granted by this Court on 23rd April, 2010. According to the Petitioner, the Ordinance in question was issued solely with the purpose of frustrating the present Petition by disturbing the....
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.... said Maharashtra Act 20 of 2002. In the memorandum of delegated legislation, appended to the said Amendment Act 20 of 2002, it has been expressly mentioned that the Act of 1962 was being amended to replace the ad-volarem duty on purchase of sugarcane by a specific duty. 21(L) In their additional affidavit of reply, the Respondents have also overlooked the later amendment by the Maharashtra Act 8 of 2003 and subsequent Notification dated 29th March, 2003. Under the powers conferred by the amended section 12B, the said Notification expressly exempted the purchase of sugarcane effected by the occupier of a factory from whole of tax if the sugar factory had exported the sugar manufactured by it during nine months from 1st January, 2002 to 30th September, 2002. While in case of other sugarcane purchases made during the period from 1st May, 2002 to 30the September, 2002, tax on cost of cutting and transport charges purported to be forming part of the purchase price of sugarcane; was exempted without any condition; in case of purchases from 1st October, 2002 to 31st March, 2003, the same were completely exempted under Entry 3 of the said Notification dated 29th March, 2003. 21(M) T....
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.... (vi) P. S. N. S. ambalavana Chettiar and Co. Ltd. and Anr. vs. Express Newspapers Ltd., AIR 1968 SC 741. (vii) The State of Orissa vs. Utkal Distributors (P) Ltd., (1966) 17 STC 320 (SC). (viii) Thiru Arooran Sugars Ltd. vs. Deputy Commercial Tax Officer, (1988) 71 STC 444 (Mad.). (ix) State of Tamil Nadu and Ors. vs. Kothari Sugars and Chemicals Ltd., (1996) 101 STC 197 SC. (x) Chief Commissioner vs. T. N. T. India Pvt. Ltd. (2010) 31 VST 92 (Kar.) . 22(A) On the other hand, Mr. V. A. Sonpal, learned Special Counsel appearing for the State and the Respondents submitted that there is no substance in all the contentions of Mr. Joshi and other Counsel. Mr. Sonpal would submit that essentially amendments made in 1995 related to addition of definition of "purchase price" in section 2 (f-a), (f-b) and (f-c) so as to include transportation expenses and other expenses spent by the dealer (there is no ambiguity as to spent by who since tax is on the sugar factory, spent word relates to the sugar factory and not grower). The hitherto amendment in 1995 was leviable on weight basis and from 1995, basis of levy of tax is changed to ad-volarem. Th....
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....nsideration. 22(E) The field of legislation under Entry 54 for State includes making provisions for every incidental thing including enforcement and recovery, levy of penalty etc. Besides, it is well settled that when a power is conferred in the legislature to levy tax, that power itself must be widely construed. It must include the power to impose a tax and select the articles or commodities for the exercise of such power. It must likewise include the power to fix the rate and prescribe the machinery for the recovery of the tax. This power also gives jurisdiction to the legislature to make such provisions as, in its opinion, would be necessary to prevent the evasion of the tax. In imposing taxes, the legislature can also appoint authorities for collecting taxes and may prescribe the procedure for determining the amount of taxes payable by any individual, all the provisions are subsidiary to the main power to levy a tax and, therefore, once it is shown that the tax in question has been levied on goods carried, it would be open to the legislature to prescribe the machinery for recovering the said tax. 22(F) If the impugned legislation invades Entry 52, it must be repelled by t....
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....(1) the law must be within the legislative competence of the legislature as defined and specified in Chapter I, part XI of the Constitution, and (2) it must not offend against the provisions of Articles 19, 13(1) and (2) of the Constitution. 22(L) When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then, it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then, disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires and what are not. 22(M) Mr. Sonpal has relied upon the following judgments:....
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....h Kohli, AIR 2012 SC 2351 . (xxiv) Rajkot District Co-operative Bank Ltd. vs. State of Gujarat, AIR 2015 SC 489. (xxv) Shreya Singhal vs. Union of India, AIR 2015 SC 1523 . (xxvi) Shri. Prithvi Cotton Mills Ltd. and Anr. vs. Broach Borough Municipality and Ors. 1969 (2) SCC 283 . (xxvii) Indian Aluminium Co. and Ors. vs. State of Kerala and Ors. (1996) 7 SCC 637. (xxviii) National Agricultural Cooperative marketing Federation of India Ltd. and Anr. vs. Union of India and Ors. (2003) 5 SCC 23 . (xxix) Godfrey Phillips India Ltd. and Anr. vs. State of U. P. and Ors. (2005) 2 SCC 515 . (xxx) M/s. Hiralal Rattanlal Etc. Etc. vs. State of U. P. and Anr., (1973) 1 SCC 216. (xxxi) Union of India and Anr. vs. Raghubir Singh (Dead) by Lrs. Etc. and Ors., (1989) 2 SCC 754 . (xxxii) State of Karnataka etc. vs. M/s. Pro Lab and Ors. etc., 2015 SCC Online SC 81 . 23) For properly appreciating the rival contentions, it must be noticed that the Petitioners are challenging the vires of amended sections 2, 3 and 6 of the Act of 1962. They have also challenged the legality and validity of the three letters so also th....
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.... Maharashtra Act 21 of 1998 with effect from 1st May, 1998 and are reproduced. Since heavy reliance has been placed on the definitions of the terms "factory", "licence", "occupier", "purchase", "purchase price" and "turnover of purchases", we reproduce these definitions hereinbelow:- "2(b) "factory" means any premises (including the precincts thereof), wherein twenty or more workers are working and in which, or in any part of which any manufacturing process connected with the production of sugar by means of vacuum pans is being carried on, or ordinarily carried on, with the aid of power. 2(c) "licence" means a licence granted or renewed under this Act. 2(d) "occupier" of a factory of or a unit means the person who has ultimate control over the affairs of the factory of the unit and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory or of the unit, as the case may be; and the term includes also any person appointed by the occupier to act as a purchasing agent. 2(f-a) "purchase" means a purchase of sugarcane made within the State for cash or deferred payment or other valuable consi....
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....o have been substituted with effect from 1st October, 1995 by the Maharashtra Act 21 of 1998. It also means any other sum spent or anything done in respect of the sugarcane at the time of the delivery thereof. The term turnover of purchase has been defined once again by using the word "aggregate". It means the sum total of the amounts of purchase price paid and payable by an occupier during the given period. Thus, by the charging section 3, it is stated that there shall be levied and collected a tax on the turnover of purchase of sugarcane. It is such sugarcane purchased for the use thereof in the manufacture or production of sugar in the factory or unit on which the tax is levied and collected. The rates thereof are to be specified in terms of sections 2 and 3 and the tax as levied is payable by the occupier at such intervals and in such manner as may be prescribed. 28) We have also to consider other provisions of the Act, for, they have a bearing on the charge and levy of the purchase tax. By section 5, it is mandated that except under and in accordance with law, conditions of a licence issued by the Commissioner, no person shall purchase any sugarcane for the purpose of the u....
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....ce and that is the measure for computation of the tax, then, depending upon facts and circumstances in each case, the occupier can point out that not all components or elements are included in the purchase price in his case. That it is only the actual costs which have been taken into account or that they have not included all the heads simply because not all of them form part of the purchase price. Then, it would be open for the Assessing Officer/Commissioner to consider such pleas and material in support thereof. He would, then, compute the tax liability after duly considering them. However, it is the turnover of purchases meaning the aggregate of the amounts of purchase price paid and payable by an occupier, on which tax is levied and collected. The turnover is computed on the basis of the purchase transactions and the price paid for the same. Thus, it would be open for the Petitioners to point out that the turnover of purchases in their case involves payment of purchase price without the elements that are set out in the definition of the term "purchase price" referred above. In the event the Assessing Officer/Commissioner does not agree with the Petitioner, then, there are remed....
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....valuable consideration, but does not include a supply by a shareholder of the factory or limited company. Therefore, it could be said that the supplier of sugarcane is not a shareholder. It could also be said that the sugarcane is obtained from the farmer or cultivator directly and it is his responsibility to reach the sugarcane, for which the purchase price is tendered, directly to the factory or unit where the production or manufacturing of sugar is undertaken. The transporter may or may not be involved in such process. Equally, there would not be any sum spent for anything done in respect of the sugarcane at the time of or before delivery thereof. These expenses may be to the account of the cultivator or farmer. The Assessee/factory is not required to compensate him for the same. The computation of the purchase price is indicated so that the tax to be levied and collected is correctly computed. If sum total of the purchases would constitute the turnover and the measure of that would be the amount of purchase price paid and payable by an occupier during the given period, then, it is only to enable the assessment and collection of tax in accordance with law that these provisions h....
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....e would indicate as to how the tax could be on the delivery of goods on hire purchase system or any system of payment of installments, it could be a tax on the transfer of right to use any goods for any purpose for cash, deferred payment or valuable consideration, a tax on the supply of goods by any incorporated association or body of persons to a member thereof, a tax on the supply by way of or as a part of any service or in any manner whatsoever of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), whether such supply is for cash, deferred payment or other valuable consideration. The definition also clarifies that such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. In the circumstances, the subject tax does not go beyond Entry 54 of List - II (State List) to the Seventh Schedule of the Constitution. 33) The other argument also need not detain us. That is that amendments which have been made with effect from 1st October, 1995 by Ordinance V....
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....ction 2 of Mah. IX of 1962. - In section 2 of the Maharashtra Purchase Tax on Sugarcane Act, 1962 (hereinafter, in this Act, referred to as "the Purchase Tax on Sugarcane Act"), clause (f-a), (f-b) and (ga) shall be deleted. 11. Substitution of section 3 of Mah. IX of 1962. - For section 3 of the Purchase Tax on Sugarcane Act, the following section shall be substituted, namely:- 3. Levy of purchase tax. - (1) There shall belevied and collected a tax on the purchase of sugarcane being purchased for use in the manufacture or production of sugar in a factory or a unit. (2) The tax under sub-section (1) shall be levied at such rate per kilogram of sugarcane purchased for the purpose aforesaid, as may be specified by the State Government, by notification in the Official Gazette, and different rates may be specified for the sugarcane purchased for the manufacture or production of sugar in a factory and of Khandsari sugar in a unit: Provided that, different rates may also be specified for sugarcane purchased for the manufacture or production of Khandsari sugar in units situated in areas, which are declared by the State Government, from time to time, by ....
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....t of the authorities. It only means that the amendments which were already brought into force were purported to be deleted. The amendments brought in by Maharashtra Act VIII of 2003 could not have changed the amended provisions or sections of the main Act. 37) Mr. Sonpal has clarified that this is an improper reading of the amended provisions. He would submit that the Act of 1962 was amended by the Maharashtra Act XVI of 1995 with effect from 1st October, 1995 and the Maharashtra Act XIX of 1996 with effect from 9th June, 1996. It was amended by Maharashtra Act XXI of 1998 with effect from 1st May, 1998. Our attention is invited to these amendments carried out particularly by the Maharashtra Act XVI of 1995. It is urged by Mr. Sonpal that the Maharashtra Tax Laws (Levy and Amendment) Ordinance 1998 purported to amend several provisions in the Maharashtra Tax Laws. Insofar as that Ordinance is concerned, it was later on enacted as the Maharashtra Act XXI of 1998. The Maharashtra Act XXI of 1998, vide Chapter VI, amended section 2(f-b) of the Act of 1962 and for the word "charge", wherever it occurred, the word "spent" stood substituted and is deemed to have been substituted with ....
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....eady been removed from the Statute Book. In other words, amendment to an amendment already brought into effect would not restore the position prior to the first amendment. The contention as raised in writing is that if a statute is first amended and by the second amendment, the first amendment is deleted does not mean that the position prior to the first amendment stands automatically restored. 40) Mr. Joshi sought to rely on the principle enunciated in Maxwell on Interpretation of Statutes, particularly laid down in 12th Edition on Commencement, Repeal and Revival of Legislation. He would submit that where an Act is repealed and the repealing enactment is then repealed by another, which manifests no intention that the original Act shall continue repealed, the common law rule was that the repeal of the second Act revived the first ab-initio. However, according to the Maxwell, the common law on the point was altered in 1850, by a provision now to be found in section 11(1) of the Interpretation Act, 1889 to the effect that where an Act passed after 1850 repeals a repealing enactment, it shall not be construed as reviving any enactment previously repealed, unless words are added re....
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.... the result of the statutory provisions introduced by the Interpretation Act of 1889 and as we are not bound by the provisions of any English statute, we can still apply the english Common Law rule if it appears to us to be reasonable and proper. But even according to the Common Law doctrine, the repeal of the repealing enactment would not revive the original Act if the second repealing enactment manifests an intention to the contrary. In the present case the 'Firman' of 7-9-1949, does not repeal the earlier 'Firman' of 24-2-1949, 'simpliciter' but makes a further provision providing for fresh enquiry and report which presupposes the continuance of the repeal of the original 'Firaman' of 26-6-1947. This being the position, we are constrained to hold that there was no final or effective decree in existence subsequent to the issuing of the 'Firman' of 7-9-1949, and the execution proceedings started by the respondents are, therefore, untenable in law. In the view that we are taking it becomes unnecessary to discuss the third point raised by the Attorney General, namely, whether the City Civil Court has jurisdiction to execute the decree....