COMMNR, SALES TAX, U.P. v. M-S BHARAT BONE MILL

Citation: [2007] 2 S.C.R. 886

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

COMMNR, SALES TAX, U.P. v. M-S BHARAT BONE MILL.pdf

Judgment text

COMMNR, SALES TAX, U. P. ··+ v. M/S BHARAT BONE MILL .. ; FEBRUARY 20, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ] U. P. Sales Tax Act, 1948-Crushed bone, ifcan be treated as Fertilizers rfor exemptionfrom payment ofsales tax-Held: There being no expert opinion before High ·court or Tribunal, as to whether crushed bones can be used only for purpose offertilizer or are sold tofarmers for use thereofonly asfertilizer- Order of courts below set aside-Question of law left open. The question which arose for consideration in this appeal was whether 'crushed bone' can be treated to be 'fertilizer'. Respondent is engaged in manufacture of crushed bone. By a notification, State exempted 'Fertilizers' other than 'Chemical Fertilizers' -{ from payment ofsales tax. By another notification 'Chemical Fertilizers' were . (_ also exempted. Thereafter, by yet another notification sale of 'bone to consumer' was exigible to sales tax at 6% and Chemical Fertilizer at 5%.

Courts below relying on other decisions held that the crushed bone would come within the purview of fertilizer. High Court dismissed the writ petition filed by the appellants. Hence the present appeal. Allowing the appeal, the Court ,> HELD: 1. The question as to whether a commodity would be exigible to sales tax or not must be considered having regard to its identity in common law parlance. If, applying the said test, it is to be borne in mind that if one commodity is not ordinarily known as another commodity; normally, the provisions oftaxing statute in respect offormer commodity which comes within the purview of the taxing statute would be allowed to operate. In any event, such a question must be determined having regard to the expert opinion in the field. The difference between 'bone meal' and 'crushed bone' is noticed. '... -- Different utilities of the said items has also been noticed by the High Court itself.

The High Court or for that matter, the Tribunal did not have the COMMNR, SALES TAX, U. P. v. BHARAT BONE MILL [S. B. SINHA, J. ] 887 advantage of opinion of the expert to the effect as to whether crushed bones +- can be used only for the purpose of fertilizer or whether crushed bones are sold to the farmers for use thereof only as fertilizer. The orders of the Assessing Authorities including that of the High Court are set aside. However, the question is left open for subsequent cases, if any. (Paras 11 and 12] (890-E-H) Commissioner ofSales Tax, Madhya Pradesh v. Sagar Bone Mills, Sagar : No. J (18 STC 338); CSTv. Crusher and Fertilizer Company, (1985) UPTC 905; The Rat/am Bone and Fertilizer Co. v. The State of Madhya Pradesh and Anr. , 35 STC 132; Yasin Bone Mills v. State of U. P. and inr. , 46 STC 112: (1980) UPTC 450, referred to. 2. The Assessing Authority proceeded to determine the taxability in view of the decisions, as were prevailing.

It sought to rectify its order keeping in view the subsequent decisions. The question which arose for consideration before the Tribunal was as to whether the Assessing Authority could pass such an order having regard to the power of rectification in terms ofSection 22 of the Income Tax Act. (Para 13] (891-A-B) The Income Tax Officer, Alwaye v. The Asok Textiles Ltd. , Alwaye (1961) 3 SCR 236, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 852 of2007. From the final Judgment and Order dated 20. 10. 2003 of the High Court of Judicature at Allahabad in S. T. R. No. 1570/1990. Kavin Gulati, Kamlendra Mishra, Gourabh Sarin and Rajeev Kumar Dubey for the Appellant. The Judgment of the Court was delivered by S. B. SINHA, J. 1. Leave granted. 2. Whether a 'crushed bone' can be treated to be 'fertilizer' is the .. question involved in this appeal arising out of a judgment and order dated ' 20. 10.

2003 passed by a learned Single Judge of the Allahabad High Court in Sales Tax Revision No. 1570 of 1990 whereby and whereunder the revision petition filed by the appellant herein was dismissed. • 3. Respondent herein is engaged in manufacture of crushed bone. It runs a bone mill for the above-mentioned purpose. ·1- 4. The question as to whether crushed bone-meal would come within the definition of the term "fertilizer" must be considered having regard to some notifications issued by the State of Uttar Pradesh from time to time. By a notification dated 16. 07. 1956, 'Fertilizers' other than 'Chemical Fertilizers' were exempted from payment ofsales tax by the State in exercise of its powers conferred upon it under the U. P. Sales Tax Act, 1948. However, by reason of a notification dated I0. 3. 1970, 'Chemical Fertilizers' were also brought within the purview of exemption from payment of sales tax. By a notification dated 31. 03.

1976 a taxing entry was introduced in the Schedule appended to the notification dated 15. 11. 1971 in terms whereof sale of 'bone to consumer' was exigible to sales tax of 6 per cent. Yet, in terms of 7. 09. 1981, the Schedule appended to the said Act was amended; the relevant entries being 8 and I0 read as under:- "SI. No. Description of good Point of tax Rate of Tax 8. Bones Sale to consumer 6% IO. Chemical fertilizer Mor I 5%" 5. It is in the aforementioned context, the question as to whether 'crushed bone' would answer the description of 'fertilizer' or not is required to be considered. We may notice that the High Court in view of some decisions rendered by the Tribunal as also a decision of the learned Single Judge ofthe M. P. High Court in Commissioner ofSales Tax, Madhya Pradesh v. Sagar Bone Mills, Sagar: No. I [18 STC 338) opined that 'crushed bone' would come within the purview of 'fertilizer'.

Reference was also made to a > decision of a learned Single Judge of the said Court in CST v. Crusher and Fertilizer Company (1985) UPTC 905. 6. Mr. Kavin Gulati, learned counsel appearing on behalfofthe appellant, would submit that the High Court committed a serious error in arriving at the said conclusion relying on or on the basis of the decisions of the M. P. High Court in Sagar Bone Mills (supra) and the Allahabad High Court in Crusher and Fertilizer Company (supra). •-- In Sagar Bone Mills (supra), the Madhya Pradesh High Court stated the law, thus: COMMNR, SALES TAX, U. P. v. BHARAT BONE MILL [S. B. SINHA, J. l 889 ".... It cannot be denied that bone-meal or crushed bones are "bones of animals" which include powdered bones. The three entries referred +to earlier must be read harmoniously, and, so read, their effect is clearly to impose sales tax on bones of animals which include crushed ,.. bones and bone-meal. 4.

In coming to the conclusion that the question whether cruslled bone or bone-meal manufactured by the assessee was "fertilizer" for the purpose of the Sales Tax Acts should be determined with reference to the definition of"fertilizer" given in the Fertilizer (Control) Order, 1957, the Sales Tax Tribunal altogether overlooked the settled rules of -- - ~ of exports to foreign countries. As noted above crushed bones are meant for use as raw material in the manufacture ofglue and gelatine, the industries which have not developed to any appreciable extent in Indh and, hence, this commodity has to be exported to countries· outside India. '' I0. Therein reliance wa. s placed on the opinions of some experts to establish 'crushed bone' and 'fertilizers'. The Court, however, found the report of the Directorate of Marketing and Inspection more creditworthy, opining that bone-meal and not crushed bones can be treated as fertilizers. "" ' 11.

Moreover, it is well-known that the question as to whether a commodity would be exigible to sales tax or not must be considered having regard to its identity in common law parlance. If, applying the said test, it is to be borne in mind that if one commodity is not ordinarily known as another commodity; normally, the provisions of taxing statute in respect of former commodity which comes within the purview of the taxing statute would be allowed to operate. In any event, such a question must be determined having regard to the expert opinion in the field. We have noticed hereinabove the >difference between 'bone meal' and 'crushed bone'. Different utilities of the said items has also been noticed by the Allahabad High Court itself.

The High Court or for that matter, the Tribunal did not have the advantage of opinion of the expert to the effect as to whether crushed bones can be used only for the purpose of fertilizer or whether crushed bones are sold to the farmers for use thereof only as fenilizer. a.. :-- 12. For the reasons aforementioned, we set aside the orders of the Assessing Authorities including that of the High Court. However, we intend to leave the question open for subsequent cases, if any. COMMNR, SALES TAX, U. P. 1·. BHARAT BONE MILL [S. B. SINHA, J. ] 89] 13. There is another aspect of the matter, notice whereof must be taken by us, viz. , the Assessing Authority proceeded to determine the taxability in view ofthe decisions, as were prevailing. It sought to rectify its order keeping in view the subsequent decisions.

The question which arose for consideration before the Tribunal was as to whether the Asses~ing Authority could pass such an order having regard to the power of rectification in terms of Section 22 of the Act. ·14. This aspect of the matter has been considered in The Income Tax Officer, Alwaye v. The Asok Textiles Ltd. , A/waye [1961] 3 SCR 236, wherein it was held that the provisions for rectification of "mistakes apparent on the record" cannot be equated with a power of a civil court to review its own order as envisaged under Order XLVII Rule I of the Code of Civil Procedure stating: "The learned Judges of the High Court seem to have fallen into an error in equating the language and scope of s. 35 of the Act with that of0. 47, r. l, Civil Procedure Code. The language ofthe two is different because according to s.

35 of the Act which provides for rectification of mistakes the power is given to the various income-tax authorities within four years from the date of any assessment passed by them to rectify any mistake "apparent from the record" and in the Civil Procedure Code the words-are "an error apparent on the face of the record" and the two provision·s do not mean the same thing. " 15. The appeal is allowed with the aforementioned observations. No costs. NJ. Appeal allowed. -