# M/S Kores (India) Ltd., Lko. Revisionist v. Comm. of Trade Tax

- **Citation:** (2020) 2 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-23
- **Case number:** Trade Tax Revision No. 14 of 2007
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kores-india-ltd-lko-revisionist-v-comm-of-trade-tax-45648
- **Pages:** 4

## Headnote

C.S.C.

A. Sales/Trade Tax - Classification - first
to see whether an item falls in any of the
category mentioned in the schedule and
only when such an item is not found
falling in any of the schedule the same
can be taxed in the ancillary clause -
toner cartridges are part of a printer and
are liable to be taxed at the same rate as
printer

The printer is sold along with the 'Cartridge'
and is included in the package containing the
printer and therefore from the above fact it can
be deduced that the printer includes 'Cartridge'
and are sold together. 'Cartridge' being a
consumable item has to be periodically
replaced/recharged with the toner. (para 14)
B. Common Parlance test - to determine
the nature of goods as dealt by the seller
and the consumer of the product
Revision Allowed. (E-10)

List of cases cited:-

## Text

122 INDIAN LAW REPORTS ALLAHABAD SERIES
to betray the confidence of the Court by
making statements which are untrue and
misleading. That is why we have come to
the conclusion that in the present case,
special leave granted to the appellant
ought to be revoked. Accordingly, special
leave is revoked and the appeal is
dismissed. The appellant will pay the costs
of the respondent."

46. More recently, in Ramjas
Foundation v. Union of India [(2010) 14 SCC
38 : (2011) 4 SCC (Civ) 889] the case law on
the subject was discussed. It was held that if a
litigant does not come to the court with clean
hands, he is not entitled to be heard and
indeed, such a person is not entitled to any
relief from any judicial forum. It was said:
(SCC p. 51, para 21)

"21. The principle that a person
who does not come to the court with clean
hands is not entitled to be heard on the
merits of his grievance and, in any case,
such person is not entitled to any relief is
applicable not only to the petitions filed
under Articles 32, 226 and 136 of the
Constitution
but
also
to
the
cases
instituted in others courts and judicial
forums.
The
object
underlying
the
principle is that every court is not only
entitled but is duty-bound to protect itself
from unscrupulous litigants who do not
have any respect for truth and who try to
pollute the stream of justice by resorting to
falsehood or by making misstatement or by
suppressing facts which have a bearing on
adjudication of the issue(s) arising in the
case."

47. A mere reference to the
order dated 2-5-2003, en passant, in the
order dated 24-7-2006 does not serve the
requirement of disclosure. It is not for the
court to look into every word of the
pleadings, documents and annexures to
fish out a fact. It is for the litigant to come
upfront and clean with all material facts
and then, on the basis of the submissions
made by the learned counsel, leave it to
the court to determine whether or not a
particular fact is relevant for arriving at a
decision. Unfortunately, the petitioners
have not done this and must suffer the
consequence thereof.

52. Thus, in light of the aforesaid
discussions, this Court finds that the
decision relied upon by the appellant in the
case of Yashwant Bhikaji (supra) which is
on a different fact situation does not come
to the rescue. So also the decision of the
Apex Court relied upon by the learned
counsel for the appellant regarding the
distinction in the cause of action as
expressed by him are not applicable in the
present case for the detailed reasons as
already mentioned above, hence, the
aforesaid decision also does not help the
plaintiff-appellant.

53. In view of the aforesaid, there is
no manner of doubt that the two courts
below have rightly rejected the plaint,
inasmuch as, it appears that the plaintiff
instituted the interpleader suit only to
delay the outcome and that too has
resorted to concealment and, accordingly,
this Court is not inclined to interfere nor
does it find that any substantial question of
law arises in the above second appeal
which accordingly is dismissed at the
admission stage. However, there shall be
no order as to costs.
----------
(2020)02ILR A122

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2020

BEFORE

THE HON'BLE ALOK MATHUR, J.
4 All. M/S Kores (India) Ltd., Lko. Vs. Comm. of Trade Tax, U.P.
123
Trade Tax Revision No. 14 of 2007

M/S Kores (India) Ltd., Lko. ...Revisionist
Versus
Comm. of Trade Tax, U.P. ..Opposite Party

Counsel for the Revisionist:
S.M.K. Chaudhary, Vikas Sharma, Yogesh
Chandra Srivastava

Counsel for the Opposite Party:
C.S.C.

A. Sales/Trade Tax - Classification - first
to see whether an item falls in any of the
category mentioned in the schedule and
only when such an item is not found
falling in any of the schedule the same
can be taxed in the ancillary clause -
toner cartridges are part of a printer and
are liable to be taxed at the same rate as
printer

The printer is sold along with the 'Cartridge'
and is included in the package containing the
printer and therefore from the above fact it can
be deduced that the printer includes 'Cartridge'
and are sold together. 'Cartridge' being a
consumable item has to be periodically
replaced/recharged with the toner. (para 14)
B. Common Parlance test - to determine
the nature of goods as dealt by the seller
and the consumer of the product
Revision Allowed. (E-10)

List of cases cited:-

1. M/s Wep Peripherals Ltd. Lucknow through
Authorized Secretary V. Commissioner
of
Commercial Taxes U.P. Lucknow Trade Tax
Revision No. 85 of 2013

2. Canon India Private Ltd. V. State of
Tamilnadu/
Commissioner
of
Commercial
Taxes/Commercial Tax Officer Writ Petition No.
4042 of 2008

3. Commissioner of Trade Taxes V. Symphony
Enterprises and ors 2007 INDLAW DEL 1301
(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Vikas Sharma, learned
counsel for the revisionist as well as Sri
Rohit Nandan Shukla, learned Standing
Counsel for the respondent.

2. By means of this revision the
revisionist has assailed the order dated
15.02.2007, passed by the Trade Tax Tribunal
(hereinafter referred to as "the Tribunal"),
thereby dismissing the second appeal of the
revisionist and up holding the order dated
09.11.2006, passed by the Joint Commissioner
(Appeals), Trade Tax, Lucknow in the first
appeal of the revisionist. This revision pertains
to assessment year 2003-04.

3. The revisionist is a Company
engaged in the business of manufacture
and sale of stationary items such as carbon
paper,
drawing
paper,
art
material,
computer printer, note counting machine
etc. which are consumable items. The
controversy
involved
in
the
present
revision is with regard to the rate of tax on
H.P. Printer toner and cartridges.

4. It has been submitted that on the
sale of H.P. toner and cartridges rate of tax
should be 4% while the Assessing Officer
has taxed the said goods at the rate of
10%.
Therefore,
the
controversy
is
whether the H.P. Printer toner and
cartridges would be considered to be part
of a computer printer or not. In case it is
considered to be part of the printer then it
will be liable to be taxed at the rate at
which the printer is taxed i.e. at the rate of
4% and if it is considered to be an
accessory then the same would be liable to
be taxed at the rate of 10%.

5. The Tribunal while considering
the aforesaid question had recorded
124 INDIAN LAW REPORTS ALLAHABAD SERIES
finding that the H.P. toner and cartridge
does not fall into the category of parts of
the printer and that they are just
consumable goods and therefore same are
liable to be taxed at the rate of 10%.

6. Learned Standing Counsel on the
other hand submits that the Tribunal has
considered the submissions made by the
revisionist, various provisions of charging
Sections and case law in this regard has
been duly considered and therefore there is
no infirmity in the order of the Tribunal.

7. Heard learned counsel for the
parties and perused the record.

8. The question which falls for
consideration of this Court is whether
under the entry computer hardware,
software and other computer consumable
would include the toner and printer
cartridge, which are used alongwith the
computer printer.

9.

To
decide
the
aforesaid
controversy, this Court will have to
consider as to whether cartridge of printer
is an essential component of a printer,
without which the printer cannot function
as a whole or is a cartridge consumable or
supplementary or subordinate in nature
and will not be needed in actual
functioning of the product. It is an
admitted position and a fact of common
knowledge that a printer cannot function
without a cartridge. Function of a printer is
to produce printed pages and when blank
page is inserted, printed page is turned out
with printed words engraved there upon
which is only because of the cartridge. In
absence of a cartridge blank page will be
turned out as a blank page without any
impression or characters on it. A printer,
therefore, is rendered useless without a
cartridge and therefore it can safely be
concluded that cartridge is an essential
component and integral part of a computer
printer, without which a printer cannot
function.

10. This Court in Trade Tax
Revision No. 85 of 2013 - M/s Wep
Peripherals Ltd. Lucknow through
Authorised Secretary Vs. Commissioner
of Commercial Taxes U.P. Lucknow
(decided on 25.10.2018) has considered
the question with regard to nature of
Ribbon Cartridge used in Dot Matrix
Printers as to Whether the Ribbon
Cartridge is not a part of computer printer,
therefore, not a computer hardware as such
not amenable to tax at the rate 4% instead
it was taxable at the rate 10% as an
unclassified item as it was an accessory of
computer printer and not its part?

11. In the case of M/s Wep
Peripherals Ltd. Lucknow (supra) the
Court has resorted to the "common
parlance test" i.e. how the commodity is
understood and considered by those
dealing in it, and therefore it took into
account the fact that the Ribbon Cartridge
is sold alongwith the printer which
according to the Court was the safest test
to conclude that the Ribbon Cartridge was
part of the Dot Matrix Printer.

12.

Learned
counsel
for
the
revisionist has also placed reliance on the
judgment of Madras High Court in the
case of Canon India Private Limited Vs.
State of Tamilnadu/ Commissioner of
Commercial
Taxes/Commercial
Tax
Officer (Writ Petition No. 4042 of 2008
alongwith other connected matter, decided
on 17th July, 2013). In the case of Cannon
India Private Limited (supra) the Madras
High
Court
has
considered
various
2 All. Vivek Kumar Vs. State of U.P. & Ors.
125
judgments and also the judgment of the
Delhi High Court in the case of
Commissioner of Trade Taxes vs.
Symphony Enterprises And Others,
2007 INDLAW DEL 1301, wherein it has
been clearly held that toners and cartridges
are part and accessories to computer
systems.
The
functioning
of
these
cartridges was explained, from which it
appears that ink cartridge is a sophisticated
Engineering design to provide and regulate
back pressure, which is essential to
perform its job of delivering the right
amount of ink to the printer nozzel and
toner cartridge, which is fitted in laser jet
printer generates laser beam which acts on
the photo sensitive drum. Thus, the ink jet
cartridge/toner cartridge is a part and
accessory to a printer, which has been held
to be a peripheral to a computer system.
Therefore, all spare parts, components and
accessories of such goods shall also be
taxed at the same rate, as that of the goods
if such spare parts, components and
accessories are not specifically enumerated
are liable to be tax in the same manner as
goods enumerated in the schedule.

13. In order to determine the above
controversy, it is necessary to examine the
nature of goods as dealt by the seller and
consumer of the said product or better
known as the "Common Parlance Test".

14. Undoubtedly, the printer is sold along
with the 'Cartridge' and is included in the package
containing the printer and therefore from the
above fact it can be deduced that the printer
includes a 'Cartridge' and are sold together.
'Cartridge' being a consumable item has to be
periodically replaced/recharged with toner.

15. In the light of the above
discussion, this Court is of the considered
view that toner cartridges are part of a
printer and are liable to be taxed at the
same rate as printer. It is the duty of the
taxing authority, firstly to see that whether
an item falls in any of the category
mentioned in the schedule and only when
such an item is not found falling in any of
the schedule can the same be taxed in the
ancillary clause.

16. In the instant case toner cartridge
being part of printer, which are sold
alongwith printers have to be taxed at the
same rate as the printers and not under the
residuary provision.

17. In view of the discussion made
above, this Court is of the considered
opinion that the impugned order passed by
the Tribunal is not sustainable and the
same is accordingly set aside.

18. The revision is allowed.

19. The question of law is answered
accordingly.
----------
(2020)02ILR A125

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE

THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal Defective No. 117 of 2020

Vivek Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Phool Chandra Yadav, Sri Sharad
Kumar Srivastava