K. R. C. S. BALAKRISHNA CHETTY & SONS & CO. versus THE STATE OF MADRAS

'96° supply of jockeys of efficiency and skill failed the Th of Income-tax ommissioner [-. ][. ]business le. Thus of the the money was respondent would no longer spent for the preservation be possi-. West Bengal' of the respondent's business.

v. As to the third point there is no substance in the Royal Calcutta submission that the expenditure was in the nature of Turf Club capital expense because no asset of enduring nature Kapur J. was being created by this expense.

In our opinion the High Court has rightly held that the expenditure claimed was one which was wholly and exclusively laid out for the purpose of the respon-dent's business. It was to prevent the threatened extinction of the business of the respondent. In the result this appeal is dismissed with costs.

Appeal dismissed.

November ag.

K. R. C. S. BALAKRISHNA CHETTY & SONS & CO.

THE STATE OF MADRAS

(J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)

Sales Tax -Claim of exemption. by licensee-If conditional upon observance of conditions and restrictions-Ma4J'as General Sales Tax Act, I939 (Mad. IX of z939), s. 5.

The appellants, who were dealers in Cotton yarn, obtained license under the Madras General Sales Tax Act, 1939 (IX of 1939). Section 5 of that Act exempted such dealers from pay-ment of sales tax under s. 3 of the Act subject to such restric-tions and conditions as might be prescribed, including the condi-tions as to licenses and license fees. Section 13 required licen-see to keep and maintain true and correct accounts of the value of the goods sold and paid by him. Rule 5 of the General Sales Tax Rules provided that any person seeking exemption under s. 5 of the Act must apply for license in Form 1 which made the license subject to the provisions of the Act and the rules made thereunder. The appellants on surprise inspection were found to maintain two separate sets of accounts, on the basis of one of which they submitted their returns and the other

showed black-market activities. The question for determination in the -appeal was whether the appellants who had been refused exemption an·d were assessed to tax, could claim exemption under the Act.

Held, that the question must be answered in the negative. Section 5 of the Madras General Sales Tax Act, 1939, pro-perJ.y construed, leaves no manner of doubt that an exemption from assessment thereunder is clearly conditional upon the observance by the assessee of the conditions and restrictions imposed by the Act, either in the rules or in the license itself, and the words 'subject to' used by the section means "conditio-nal upon".

It was not correct to say that licensee was exempt from assessment so long as he held the license notwithstanding any breach of the provision of the law and that the only penalty he could be subjected to was the cancellation of his license or cri-minal prosecution.

CIVIL.APPELLATE JURISDICTION: Civil Appeals Nos. 490 and 491 of 1958.

Appeals from the judgment and decree dated Febru-

ary 18, 1955, of the Madras High Court in Second Appeals Nos. 2038 and 2039 of 1950.

N. R. Raghavachariar, M. R. Krishnaswami and

T. V. R. Tatachari, for the appellant.

R. Garw,pathi Iyer and D. Gupta, for the respondent.

1960. November 29. The Judgment of the Court was delivered by

KAPUR, J.-Two suits were brought by the appel-

lants for declaration against the levy of sales tax by the State of Madras and an injunction was also prayed for. Both the suits were decreed by the Subordinate Judge of Salem and the decrees were confirmed on appeal by the District Judge of Salem. Two appeals were taken to the High Court by the State of Madras against those decrees and by judgment dated Febru-ary 18, 1955, the decrees were set aside by common judgment. Against these decrees the appellants have brought these appeals by -certificate of that Court.

The appellants are merchants dealing in cotton yarn. They obtained license under s. 5 of the Madras Genera.I Sales Tax Act (Act IX of 1939), here-inafter referred to as the 'Act'. This license exempted

K. R. C. S. Balakrishna Chctty & Sons & Co. v.

J'lie State of Madras

Kapur J.

_, ... ·

K. R.C.S. Balakriskna Chelty & Sons & Co. v. The State of 1.J adras Kapur ].

them from assessment to sales tax under s. 3 of the Act on the sale of cotton yarn and on handloom cloth "subject to such restrictions and conditions as may be prescribed including conditions as to license and lic-ense fees". The license was issued on March 31, 1941, and was renewed for the following years. On Septem-ber 20, 1944, the Commercial Tax Authorities ma(ie surprise inspection of the premises of the appellants and discovered that they were maintaining two sepa-rate sets of account on the basis of one of which the appellants submitted their returns to the Depart-ment. Because the other set of account books showed black-market activities of the firm Balakrishna Chetty was prosecuted and sentenced to six months' imprison-ment for an offence connected with the breach of Cot-ton Yarn Control Order. During the pendency of those proceedings the Deputy Commercial Tax Officer made assessments for the years.1943-44 and 1944-45, the tax for the former was Rs. 37,039 and for the latter Rs. 3,140. The appellants unsuccessfully appealed against these assessments and their revisions also failed. On August 24, 1945, the appellants brought suit for declaration and injunction in regard to the first assess-ment alleging that the assessment was against the Act. On September 2, 1946, similar suit was brought in regard to the second assessment. It is out of these suits that the present appeal has arisen.

The controversy between the parties centres round the interpretation of the words "subject to" ins. 5 of the Act. The High Court has held that on true interpretation of the provisions of the Act and the rules made thereunder, the observance of conditions of the license was necessary for the availability of exemption under s. 5; that as the appellants had contra-vened those conditions they were liable to pay tax for both the years notwithstanding the license which had been issued to them under s. 5 of the Act.

It will be convenient at this stage to refer to the

provisions of the ,Act which are relevant for the pur-pose of this appeal. S. 2(b) " "dealer" means any person who carries on the business of buying or selling goods;"

2 S.C.R. SUPREME COURT REPORTS

S. 2(f) ""prescribed" means prescribed by rules

made under this Act;". S. 3(1) "Subject to the provisions of this Act, every dealer shall pay in each year tax in accord-ance with the scale specified below:-

S. 3(1) "Subject to the provisions of this Act,

( a) ............................................................. . (b) if his turnover ex-his turnover ex-turnover ex-ex-One half of 1 per per ceeds twenty cent of such turn. such turn. turn. thousand rupees. over".

(b) if his turnover ex-his turnover ex-turnover ex-ex-

One half of 1 per per cent of such turn. such turn. turn. over".

S. 5 "Subject to such restrictions and .conditions

as may be prescribed, including the conditions as to licenses and license fees, the sale of bullion and specie, of cotton, of cotton yarn and of any cloth woven on handlooms and sold by persons dealing exclusively in such cloth shall be exempt from taxation under Sec-tion 3".

S. 13 "Every dealer and every person licensed

under section 8 shall keep and maintain a. true and correct account showing the value of the goods sold and paid by them; and in case the accounts maintain-ed in the ordinary course, do not show the same in an intelligible form, he shall maintain true and correct account in such form as may be prescribed in this behalf:".

The following rules are relevant for the purpose of this appeal and we quote the relev.ant portions:

R. 5 "(l) Every person whq-

(a) •.•...•••...........•...•...........•.........•..•.. , .......•.

(b) deals with cotton and/or cotton yarn,

(c) ....••••... ·••·•••···· ··•·•··· •.. -... , ......••..••.............

( d) •....................•........•.•.•.••.....••................. (e) ........................ ,shall if he desires to avail himself of the exemption provided in sections 5 and 8 or of the concession of single po!nt taxation provided in section 6, submit an application in Form-I for licence ................... "

and the relevant portion of Form III is as follows:

"Form III

Cotton Cotton {

Licence to dealer in Cotton yarn

cloth woven on handlooms

K. R.C. S. Balakrishna Chetly & Sons & Co. v. The Stale of Madras Kapur ].

K.R.C. S. Balahrishna Chetty & Sons & Co. v. Th~ State of Madras Kapu1 ].

See rule 6(5).

Licence No. dated

having paid licence fee of Rs. (in words)

hereby licensed as dealer in Cotton/Cotton yarn Cotton woven on handlooms for the year ending at (place of business) subject to the provi-sions of the Madras General Sales Tax Act, 1939, and the rules made thereunder and to the follow-ing conditions:".

R. 8 "Every licence granted or renewed under

these rules shall be liable to cancellation by the Deputy Commercial Tax Officer in the event of a. breach of any of the provisions of the Act, or of the Rules made thereunder or of the conditions of the licence."

The contention raised on behalf of· the appellants

was that as long as they held the licence it was im-material if they were guilty of any infraction of the law and that they were not liable to any assessment of sales-tax under the provisions of the Act and the only penalty they incurred was to have their licence cancelled and/or be liable to· the penalty which under the criminal law they had already suffered. The con-tention comes to this that in spite of the breaches of the terms and conditions of the licence, having licence was sufficient for the purpose of exemption under the Act. This contention, in our opinion, is wholly untenable. Section 3 is the charging section and s. 5 gives exemption from taxation but that sec-tion clearly makes the holding of licence subject to restrictions and conditions prescribed under the provi-sions of the Act and the rules made thereunder be-cause the opening words of that section are "subject to such restrictions and conditions as may be pres-cribed."

Under s. 13 an important condition imposed under

the Act is the keeping by the dealer and every person licensed of true and correct accounts showing the value of the goods solQ. and paid by him. Next there is r. 5 of the General Sales Tax Rules which provided

2 S.C.R. SUPREME COURT REPORTS

that if any person desired to avail himself of the ex-

emption provided in s. 5, he had to submit an applica-tion in Form I for licence and the Form of the licence shows that the licence was subject to the pro-visions of the Act and the rules made thereunder which required the licensee to submit retun1s as re-quired and also to keep true accounts under s. 13. This shows that the giving of the licence was subject to certain conditions being observed by the licensee and the licence itself was issued subject to the Act and the rules. But it was contended that the words "subject to" do not mean "conditional upon" but "liable to the rules and the provisions" of the Act. So construed s. 5 will become not only inelegant but wholly mean-ingless. On proper interpretation of the section it only means that the exemption under the licence is conditional upon the observance of the conditions prescribed and upon the restrictions which are impos-ed by and under the. Act whether in the rules or in the licence itself; that is, licensee is exempt from assessment as long as he conforms to the conditions of the licence and not that he is entitled to exemption whether the conditions upon which the licence is given are fulfilled or not. The use of the words "sub-ject to" has reference to effectuating tke intention of the law and the correct meaning, in our opinion, is "conditional upon".

The appellants have been found to have contraven-ed the provisions of the Act as well as the rules and therefore it cannot be said that they have observed the conditions upon which the exemption under the licence is available. In that view of the matter, it was rightly held that they were not exempt from assess-ment under the Act. The appeals are therefore dis-missed with costs.

Appeals dismissed.

!(. R. C. S. Balakrishna

Chetty & Sons

& Co. v. The Stale of Madras

Kapur ].