LexSTATE OF ORISSA versus M/S ORISSA ROAD TRANSPORT CO. LTD. ETC. ETC.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
STATE OF ORISSA
v.
M/S ORISSA ROAD TRANSPORT CO. LTD.
ETC. ETC.
B
AUGUST 28, 1997
(SUHAS C. SEN, B.N. KIRPAL AND K.T. THOMAS, JJ.)
Sales Tax:
C
Orissa Sales Tax Act, 1947-Sectio11s 4 a11d 2(c)(iv), (bb) &
D
(b )-Liability to pay sales tax-State Tra11spo11: Compa11y disposi11g of U11Ser-
viceable, old, obsolete a11d unutilised pans from its store periodically-Held,
Tra11spo11: Compa11y is a dealer canyi11g 011 the busi11ess of selli11g such pans
without being registered as a dealer under the Act-Hence liable to pay sales
tax:
'
Practice & Procedure ;
New plea-Omissio11 on the pan of the State to point out the relevant
statutory provision, culminating in a wrong decisio11 by High Coun-/'lea thus
E was a legal one-Held, it ca11not be contended that this Courl: also should
not refer to that provision-However, the contentio11 would have been co"ect
if applicability of the legal provisio11 depended on the investigation off acts.
The respondent company's main business was providing transport
F facilities to the travelling public by way of plying buses. Apart from that
it was disposing of unserviceable, old, obsolete and unutilised parts from
its stores at yearly intervals. The respondent did not get itself registered
as a dealer under the Orissa Sales Tax Act. The Sales Tax Officer made
an order of assessment under Section 15 (5) of the Act seeking to tax the
respondent's turnover on such sale, and also levied penalty as the respon-
G dent had failed to get itself registered under the Act. The appeal filed by
the respondent before the Assistant Commissioner, Sales Tax was dis-
missed. Second appeal was then filed by the respondent before the Addi-
tional Sales Tax Tribunal which accepted the contention of the respondent
that it was not a dealer within the scope of the Act for the purp{;se of
H levying tax. However the Tribunal referred the matter to the High Court
592
..
STATEv. ORISSAROADTRANSPORTCO.LTD.
593
and the High Court held that respondent was not a dealer and was not A
liable to pay sales tax. Hence this Appeal by the State.
Allowing the appeal, the Court
HELD : 1. In the course of carrying on its business of providing B
transport, some obsolete parts, spare parts etc., are not required by the
respondent company. As a prudent business organisation, the respondent
sells such items, which were obviously used or intended for use in its
business, when there was no rec1uirement for them. It cannot be accepted
that such sales cannot even be regarded as occasional sales of a business
nature which would make the respondent a casual dealer within the C
meaning of that expression occurring in Section 2(bb) of the Orissa Sales
Tax Act, 1959. Hence, the respondent will have to be regarded as a dealer
carrying on the business of selling spar~ parts etc. and, therefore liable to
pay sales tax on the sale of such items. [597-H, 598-A-B, DJ
State of Tamil Nadu v. Bunnah Shell Oil Storage and Distributing Co.
of Il1dia Ltd., (1973) 31 STC 426 and Distlict Controller of Stores, Northem
Railway, Jodhpur v. The Assistant Commercial Taxation Officer & Anr.,
(1976) 37 src 423, relied on.
D
State of Gujarat v. Raipur Mmmfactwing Co. Ltd., (1967) 19 STC 1, E
distinguished.
Andhra Pradesh State Road Transport C01poration, Hyderabad v. 171e
Commercial Tax Officer, (1971) 27 STC 42 and The State of Andhra Pradesh
v. Andhra Pradesh State Road Transpo1t Corporation, (1989) 74 STC 336, F
referred to.
2. It is true that apparently the attention of the High Court was not
drawn to Section 2(bb). This, however, can be of no assistance to the
respondent assessee because on the facts as found by the Tribunal it is
evident that the provisions of Section 2(bb) are clearly attracted to the G
instant case. If the High Court has ignored a relevant statutory provision
and then come to a wrong conclusion that cannot be a ground for the
respondent to contend that this Court also should not refer to that
provision. The contention of the respondent would have been correct if the
applicability of Section 2(bb) depended on the investigation of facts and H
594
SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.
A that is not the case herein. [599-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2034-38
of 1982 Etc.
From the Judgment and Order dated 28.10.81 of the Orissa High
B Court in S.J.C. Nos. 90, 175, 194, 195-196 of 1977.
Raj Kumar Mehta for G.S. Chatterjee, Raj Kumar Mehta, P.N. MExcerpt shown. Read the full judgment & AI analysis in Lexace.