20 September 1955
Supreme Court
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M/S. RAM NARAIN SONS LTD. Vs ASST. COMMISSIONER OF SALES TAX AND OTHERS(and other case

Bench: DAS, SUDHI RANJAN,BHAGWATI, NATWARLAL H.,JAGANNADHADAS, B.,IMAM, SYED JAFFER,AIYAR, N. CHANDRASEKHARA
Case number: Appeal (civil) 132 of 1955


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PETITIONER: M/S.  RAM NARAIN SONS LTD.

       Vs.

RESPONDENT: ASST.  COMMISSIONER OF SALES TAX AND OTHERS(and other cases)

DATE OF JUDGMENT: 20/09/1955

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. AIYAR, N. CHANDRASEKHARA DAS, SUDHI RANJAN JAGANNADHADAS, B. IMAM, SYED JAFFER

CITATION:  1955 AIR  765            1955 SCR  (2) 483

ACT:   Constitution of India-Article 286(2)-Proviso  thereto-Whe- ther the proviso is meant to lift the ban only under Article 286(2)  and  no other-And thus does not lift the  ban  under Article  286(1)(a)  read  with  the   Explanation-Assessment consisting of a single undivided sum in respect of  totality of  property-Wrongful inclusion therein of certain  item  of property  expressly  exempted  from  taxation-Legal   effect thereof-Central  Provinces and Berar Act 1947 (XXI of  1947) -Explanation II to Section 2(g) as originally enacted-before its  amendment  by  Madhya Pradesh Act  IV  of  1951-Whether offended Article 286(1)(a) read with the Explanation-Whether the  President’s order issued under the proviso  to  Article 286(2) protected the same.

HEADNOTE:    Held,  per S. B. DAs ACTING CHIEF JUSTICE,  BHGWATI,JAFER IMAM and  CHANDRASEKHARA AIYAR JJ. (JAGANNADHADAS J. 484 dissenting).   The  bans  imposed  by  Article  286  of  the Constitution  on  the  taxing  powers  of  the  States   are independent and separate and each one of them has to be  got over   before  a  State  Legislature  can  impose   tax   on transactions of sale or purchase of goods.  The  Explanation to Article 286(1)(a) determines by the legal fiction created therein  the situs of the sale in the case  of  transactions coming within that category and once it is determined by the application of the Explanation that a transaction is outside the  State it follows as a matter of course that the  State, with  reference  to  which  the  transaction  can  thus   be predicated to be outside it, can never tax the transaction.     The   ban   under  Article  286(1)(a)  read   with   the Explanation is effective independently of the fact that  the transaction  may  have taken place in the course  of  inter- State  trade or commerce or with reference to goods as  have been  declared by Parliament by law to be essential for  the life of the community.  The ban imposed under Article 286(2) is  an  independent  and  separate  one  and  looks  at  the transactions entirely from the point of view of their having

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taken place in the course of inter-State trade or commerce., Even if such transactions may also fall within the  category of  transactions  covered  by  Article  286(1)(a)  and   the Explanation  thereto  or Article 286(3) the  moment  Article 286(2)  is attracted by reason of the transactions being  in the  course of inter-State trade or commerce, the ban  under Article  286(2) operates and such transactions can never  be subjected  to  tax at the instance of  a  State  Legislature except in so far as Parliament by law may otherwise  provide or such power of taxation is saved by the President’s  order contemplated  in the proviso.  The ban under Article  286(2) may  be  saved by the President’s order but  that  does  not affect or lift the ban under Article 286(1)(a) read with the Explanation.    Apart  from  the  aforesaid  construction  put  upon  the several  clauses of Article 286 in The Bengal  Immunity  Co. case the terms of the proviso to Article 286(2) itself  make it  abundantly clear that the proviso is meant only to  lift the ban under Article 286(2) and no other.  It is a cardinal rule  of  interpretation  that  a  proviso  carves  out   an exception to the main provision to which it is enacted as  a proviso and to no other.  This is made further clear by  the nonobstante clause which states in express terms that it  is enacted  only with reference to "this clause"  i.e.  Article 286(2). The  proviso  cannot  be  extended  to  any  of  the   other provisions  of  Article 286 and it has. therefore,  not  the effect  of  lifting  the ban which  is  imposed  by  Article 286(1)(a) and the Explanation thereto.   Therefore,  so  far  as the  post-Constitution  period  is concerned  the  ban  imposed by Article  286(1)(a)  and  the Explanation thereto could not be removed by the  President’s order  which was issued under the proviso to Article  286(2) in the present case.   Explanation  11 to Section 2(g) of the  Central  Provinces and  Berar  Sales Tax Act, 1947 offended  Article  286(1)(a) -road with the                             485 Explanation to the same and the State of Madhya Pradesh  was therefore,  not entitled to tax the transactions of sale  in which  goods had actually been delivered as a direct  result of  such  sale for purposes of  consumption  outside  Madhya Pradesh  and the said Explanation was riot protected by  the President’s  order  issued  under  the  proviso  to  Article 286(2).    Where an assessment consists of a single undivided sum in respect   of  the  totality  of  the  property  treated   as assessable, the wrongful inclusion in it of certain items of property  which  by  virtue  of  a  provision  of  law  were expressly  exempted  from taxation, renders  the  assessment invalid in toto. Bennett  &  White (Calgary) Ltd. and Municipal  District  of Sugar City No. 5 (1951 Appeal Cases 786 at p. 816), referred to. JAGANNADHADAS  J. (Dissenting)-’The two bans under  Articles 286(1)(a) and 286(2) are overlapping and-the fact that  they are imposed from different angles cannot obscure the result, viz.,  that the bring about the demareation of  the  same-or substantially the same field of no taxation. To  construe the two bans as independently and  cumulatively operative  is  -to impute to them some kind  of  picturesque potency and is to miss the reality, viz., that all the  bans under Article 286 are meant to serve the same purpose, viz., that  of imposing restrictions and thereby  demarcating  the fields  of no taxation.  The bans and the proviso are  part&

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of  the same Article and have to be harmoniously  construed. The unequivocal and positive language of one part, cannot be taken  to have been obliterated by the negative language  of ,the other part so as to result in futility. The  result  of  construing the proviso  and  by  parity  of reasoning the saving clause, as merely removing the ban of a particular   nature  leaving  another  overlapping  ban   to operate, would be to reuder both the saving clause in,.  and the proviso to, Article 286(2) virtually nugatory. A  non-obstante clause does not normally add to or  subtract from  the main provision of which it is a part, It is  often enough  inserted by way of extra caution.  But it  does  not have  the  effect  of limiting the  operation  of  the  main provision, The suggestion that the Presidential action lifts the  ban only as regards the inter-State sales would  be  to read  the  phrase "notwithstanding that" as meaning  "in  so far".  There is no warrant for any such reading.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeals  Nos.  132, 133 and 137 of 1955 and Petition No. 567 of 1954. Appeals  under Article 132(1) of the Constitution  of  India from  the Judgment and Order dated the 18th October 1954  of the Nagpur High Court in Misc.  Peti- 486 tions  Nos.  265,  348  and 275  of  1953  respectively  and Petition  under  Article  32 of  the  Constitution  for  the enforcement of fundamental rights.   M. C. Setalvad, Attorney-General of India R. M. Hajarnavis and  G. C. Mathur, with him) for the appellant in  C.A.  No. 132 of 1955.  N.  C. Chatterji, (R.  M. Hajarnavis and G. C. Mathur, with him) for Intervener No. 1 in C. A. No. 132 of 1955.  R.  M. Hajarnavis and G. C. Mathur, for Intervener No. 2 in C. A. No. 132 of 1955. R.   M. Hajarnavis and G. C. Mathur, for the appellant in   C. A. No. 133 of 1955. R.   M.  Hajarnavis and G. C. Mathur, for the  appellant  in C.A. No. 137 of 1955. M.   Adhikari, Deputy Advocate-General of Madhya Pradesh and I. N. Shroff, for respondents in allappeals. M. C. Setalvad, Attorney-General of India and C. K. Daphtary,  Solicitor-General  of India (A.  P.  Sen,  J.  B. Dadachanji   and  Rajinder  Narain,  with  them)   for   the petitioner in Petition No. 567 of 1954.   T. L. Shevde, Advocate-General of Madhya Pradesh (M.  Adhikari, Deputy Advocate-General of Madhya Pradesh and I. N. Shroff, with him) for respondents. J.   B.  Dadachanji, R. M. Hajarnavis and  Rajinder  Narain, for the Intervener. 1955.   September 20.  The judgment. of S. R. Das,.   Acting Chief Justice, Bhagwati, Jafer Imam and Chandrasekhara Aiyar JJ. was delivered by Bhagwati J. Jagannadhadas J.  delivered a separate judgment. Civil Appeals Nos. 132, 133 and 137 of 1955 BHAGWATI  J.-These 3 appeals with certificate under  article 132(1) of the Constitution involve the interpretation of the proviso to article 286(2) and raise a common question as  to whether that proviso also saves 487 the  transactions  of  sale  or  purchase  covered  by   the Explanation  to  article  286(1) (a) from  the  ban  imposed therein.

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The  Appellants in Civil Appeal No. 132 of 1955 are  Messrs Ramnarain  Sons Ltd., a firm registered as a  As.   "dealer" under  the Central Provinces and Berar Sales Tax Act,  1947, and carrying on business at Amravati and at other places  in Madhya Pradesh.  After the Cotton Control Order, 1949,  came into  force  on  the 12th September,  1949,  the  Appellants entered into agreements with several mills situated  outside Madhya Pradesh by which they undertook to purchase kapas  in the  various  markets in Madhya Pradesh as their  agents  on their  account and on their behalf The kapas after  purchase was  to  be ginned and pressed into bales and  sent  to  the mills.  All the expenses involved in the process were to  be borne  by the mills which were also to be credited with  the sale  proceeds of the cotton seeds and the  Appellants  were only entitled to commission on a percentage basis.  The  Ap- pellants  worked as such agents for the period 1st  October, 1949  to 30th September, 1950.  By his order dated the  30th June,   1953  the  Assistant  Commissioner  of  Sales   Tax, Amravati, Respondent No. 1, included the transactions valued at   Rs.  72,86,454-5-10  with  the  said-  mills   in   the Appellants’  turnover and ordered the Appellants to pay  Rs. 1,13,850-13-6  as sales tax on the said  transactions.   The Appellants filed an appeal to the Commissioner of Sales Tax, Madhya  Pradesh, Respondent No. 2, on the 30th  July,  1953. The   appeal  was,  however,  entertained  by   the   Deputy Commissioner of Sales Tax, Madhya Pradesh, Respondent No. 3, who  ordered the Appellants to pay Rs. 25,000/- by the  31st August.,  1953.  The Appellants thereupon filed  a  petition under Article 226, being Misc.  Petition No. 265 of 1953, in the  High Court of Judicature at Nagpur, asking  inter  alia for the quashing of the order of 30th June, 1953, passed  by Respondent  No.  I  and  for  consequential  reliefs.    The Respondents  filed a return denying the contentions  of  the Appellants  and  praying for the dismissal of  the  petition with costs. 62 488   The  Appellants  in Civil Appeal No. 133 of 1955  are  the Eastern  Cotton  Company, a firm registered  as  a  "dealer" under  the Central Provinces and Berar Sales Tax Act,  1947, and carrying on business at Amravati and at other places  in Madhya  Pradesh.  They also, during the period 1st  October, 1949  to 30th September, 1950, worked as agents  of  certain mills  situated outside Madhya Pradesh, procured  kapas  for them  in  Madhya  Pradesh  and sent  it  to  the  mills  for consumption  outside the State.  By his order dated the  9th September,   1953,  the  Respondent  No.  I   included   the transactions valued at Rs. 33,47,405-5-6 with the said mills in  the Appellants’ turn-over and ordered the Appellants  to pay  Rs. 52,303-4-0 as tax on the said transactions.   These Appellants  also filed a petition under article  226,  being Misc.   Petition  No.  348 of 1953, in  the  High  Court  of Judicature  at Nagpur for quashing the order dated  the  9th September,  1953,  passed by Respondent No. 1 and  for  con- sequential reliefs.  The Respondents filed a return  denying their contentions.   The  Appellants  in Civil Appeal No. 137 of 1955  are  the firm,  Ramdas  Khimji  Brothers,  Bombay,  registered  as  a "dealer"  under  the Central Provinces and Berar  Sales  Tax Act.,  1947  and carrying on business as cotton  dealers  in Madhya Pradesh.  During the period 1st October, 1950 to 30th September,  1951,  the  Appellants  sold  cotton  worth  Rs. 6,01,949-1-9 to various persons outside Madhya Pradesh.  The cotton  was delivered to the buyers for consumption  outside Madhya  Pradesh  as a direct result of such sales.   By  his

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order dated the 29th December, 1952, the Sales Tax  Officer, Amravati,  in the assessment of the Appellants for the  same period,  included the said transactions in  the  Appellants’ turn-over  and assessed sales tax thereon.   The  Appellants filed  an  appeal  to  Respondent No. I  but  the  same  was dismissed  by  an  order dated the  10th  July,  1953.   The Appellants filed on 22nd August, 1953, a revision before the Commissioner  of Sales Tax, Madhya Pradesh.  The  Appellants also  filed  a  petition  under  Article  226,  being  Misc. Petition No. 274 of 1953, in the High Court of Judicature at 489 Nagpur,  asking for a writ of certiorari quashing the  order of  Respondent No. I passed by him in Sales Tax  Appeal  No. 13-A  dated  the  10th July,  1953,  and  for  consequential reliefs.   The  Respondents  filed  a  return  denying   the contentions of the Appellants and A asking that the petition be dismissed with costs.   These  petitions  came up for hearing and  final  disposal before  the  High Court of Judicature at Nagpur  along  with Misc.   Petitions  No. 288 of 1953 and No. 132 of  1954.   A considered judgment was delivered in Miscellaneous  Petition No. 132 of 1954 and the reasoning contained therein governed the  decision in the connected Petitions Nos. 265,  274  and 348 of 1953.  The High Court held that the Explanation II to section  2(g) of the Central Provinces and Berar  Sales  Tax Act, 1947, as amended by the Central Provinces and Berar Act XVI of 1949 having been declared invalid from its  inception by  the  High Court in Messrs Shriram Gulabdas v.  Board  of Revenue  (I.L.R. 1953 Nagpur 332) and by this Court in  1954 S.C.R.  1122,  the original Explanation  remained  in  force until the 1st April, 1951, when it was amended by the Madhya Pradesh  Act IV of 1951.  Explanation II originally  enacted was in the terms following:-   "Notwithstanding  anything to the contrary in  the  Indian Sale  of Goods Act., 1930, the sale of any goods  which  are actually in the Central Provinces and Berar at the time when the  contract  of  sale as defined in that  Act  in  respect thereof is made, shall wherever the said contract of sale is made,  be deemed for the purpose of this Act to  have  taken place in the Central Provinces and Berar".   The  Appellants contended that this  Explanation  offended article 286(1) (a) read with the Explanation to the same and the State of Madhya Pradesh was, therefore, not entitled  to tax  the  transactions of sale in which goods  had  actually been  delivered  as  a direct result of such  sale  for  the purpose   of  consumption  outside  Madhya   Pradesh.    The Respondents,  on  the other hand, contended  that  the  said Explanation was protected until the 31st March, 1951, by the Sales Tax Continuation Order No. 7 of 1950 issued by the                             490 President  on’ the 26th January, 1950, under the proviso  to article 286(2).   The High Court was of the opinion that the original Explanation was validly enacted as the assent of the  Governor-General to the enactment was given on the      23rd  May, 1,947, and that under that  Explanation  the tax  prior  to  the commencement  of  the  Constitution  was lawfully levied on the sales of goods wherever the contracts of  sale took place if the goods were actually in the  State at  the  time the contracts of sale were made.   This  power could be exercised by the State even if the sales took place during  the course of inter-State trade or commerce and  the goods were delivered as a direct result of the sales for the purpose of consumption outside the State.  This was  because the  situs  of  the goods  constituted  a  sufficient  nexus

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between the transactions and the taxing State which was  the foundation  for  taxation prior to the commencement  of  the Constitution.   This  position  continued  until  the   com- mencement of the Constitution and on the 26th January, 1950, the President issued the Sales Tax Continuation Order No.  7 of  1950 in exercise of the powers conferred by the  proviso to article 286(2).  The sales in question had taken place in the course of inter-State trade or commerce and  accordingly they were covered by article 286(2) and would, therefore, be liable   to   tax  even  after  the  commencement   of   the Constitution  by virtue of the President’s order.   Reliance was further placed on the majority judgment of this Court in The State of Bombay v. The United Motors (India) Ltd.  (1953 S.C.R.  1069) where it was held that the transaction  vis-a- vis the delivery State lost its inter-State character if  it fell  within the Explanation to article 286(1) (a)  and  was accordingly  made liable to taxation by the delivery  State. So  far, however, as the exporting State was  concerned,  it retained  its  character of an inter-State  transaction  and would  not, therefore, be liable to taxation by that  State, vide  article  286(2).   The  President’s  order,   however, removed  this ban and. the exporting State was  entitled  to tax  the  transaction by virtue of the power derived  by  it from the same.  On a construction of                             491 the relevant provisions of article 286(1) and article 286(2) the  High Court was of the opinion that it would  be  making the  proviso to article 286(2) nugatory if it was held  that article 286(1) overrides it and takes away the taxing  power of  all States in inter-State trade or commerce  except  the delivery  State.  The High Court accordingly  dismissed  the petitions with costs.   The learned Attorney-General appearing for the  Appellants before  us  contended that so far as  the  post-Constitution period  is  concerned,  the  position  is  governed  by  our judgment  in The Bengal Immunity Co.  Ltd. v. The  State  of Bihar  delivered on the 6th September, 1955.  He urged  that the bans imposed on the powers of the State Legislatures  to levy  taxes on the sale or purchase of goods in the  several clauses of article 286 are independent and separate and that the  transactions  of sale or purchase referred  to  in  the various clauses must be looked at from different viewpoints. Even  if  a transaction might fall within  the  category  of inter-State sale or purchase and the President’s order under the proviso to article 286(2) might enable the State to levy any  tax on such sale or purchase which was  being  lawfully levied  by the State immediately before the commencement  of the Constitution, such transaction had also to surmount  the ban  imposed  under article 286(1) (a) and  the  Explanation thereto  so that, if, as a direct result of such  sale,  the goods were actually delivered for the purpose of consumption in   another  State,  the  exporting  State  ,(to  use   the phraseology of the Nagpur High Court) or the title-State (to use the phraseology adopted in some of the judgments in  The Bengal Immunity Co.’s Appeal) would not be entitled to  levy a tax on such sale the transaction being fictionally outside the State by reason of the Explanation and therefore  coming within the ban of article 286(1)(a).    It  was, however, urged on behalf of the State of  Madhya Pradesh  that  the  President’s order  not  only  saved  the transactions  from the ban of article 286(2) but  also  from the  ban  of article 286 (1) (a), because  the  transactions covered by the Explanation to article 492 286(1)(a) were of the same category as transactions  covered

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by article 286(2) and were all in the course of  inter-State trade  or  commerce.   It  was further  urged  that  if  the transactions covered by the Expla nation to article 286  (1) (a)  were not saved from the  ban by the  President’s order, the   whole   intention  of   the   Constitution-makers   in maintaining  the  status  quo  qua the  taxes  on  sales  or purchases  of goods which were being lawfully levied by  the State  immediately before the commencement of the  Constitu- tion  would be frustrated, because the transactions  covered by  the Explanation to article 286(1) (a) being  necessarily in   the  course  of  inter-State  trade  or  commerce   the President’s  order  would  be  rendered  nugatory  and   the exporting  State  or the title State would’  be-  restrained from  levying tax on such transactions in spite of  the  ban having been lifted by the President’s order.   We  are unable to accept this contention.  As held by  the majority  Judges  in The Bengal Immunity Co.’s  Appeal,  the bans  imposed  by article 286 on the taxing  powers  of  the States are independent and separate and each one of them has to be got over before a State Legislature can impose tax  on transactions of sale or purchase of goods.  These bans  have been  imposed from different view-points, and,  even  though the  transactions  of sale or purchase  may  in  conceivable cases  overlap  so  far as these  different  viewpoints  are concerned,  each  of those bans is operative and has  to  be enforced.   So far as article 286(1) (a) is  concerned,  the Explanation determines by the legal fiction created  therein the  situs  of the sale in the case of  transactions  coming within  that  category  and  when  a  transaction  is   thus determined  to be inside a particular State  it  necessarily becomes  a transaction outside all other States.   The  only relevant  enquiry  for the purposes of article  286(1)  (a), therefore, is whether a transaction is outside the State and once it is determined by the application of the  Explanation that  it  is  outside the State it follows as  a  matter  of course  that the State with reference to which the  transac- tion can thus be predicated to be outside it can never 493 tax the transaction.  This ban is effective independently of the fact that the, transaction may also have taken place  in the  course  of  inter-State  trade  or  commerce  or   with reference  to goods as have been declared by  Parliament  by law to be essential for the life of the community.  The  ban imposed under article 286(2) is an independent and  separate one and looks at the transactions entirely from the point of view  of  their having taken place in the course  of  inter- State trade or commerce.  Even if such transactions may also fall within the category of transactions covered by  article 286  (1)(a) and the Explanation thereto or  article  286(3), the  moment  article 286(2) is attracted by  reason  of  the transactions  being  in the course of  interState  trade  or commerce,  the ban under article 286 (2) operates  and  such transactions  can never be subjected to tax at the  instance of a State Legislature except in so far as Parliament by law may otherwise provide or such power of taxation is saved  by the President’s order contemplated in the proviso.  The  ban under  article 286(2) may be saved by the President’s  order but  that does not affect or lift the ban under article  286 (1 (a) read with the Explanation.   Apart  from  the construction thus, put upon  the  several clauses of article 286 by the majority of the Judges in  The Bengal  Immunity  Co.’s Appeal as above, the  terms  of  the proviso itself make it abundantly clear that the proviso  is meant  only  to lift the ban under article 286  (2)  and  no other.   It  is  a cardinal rule of  interpretation  that  a

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proviso to a particular provision of a statute only embraces the  field  which  is covered by the  main  -provision.   It carves  out an exception to the main provision to  which  it has been enacted as’ a proviso and to no other.  Even if the non’  obstante clause: "Notwithstanding that the  imposition of  such tax is contrary to the provisions of this  clause": had not been enacted in the proviso, the proviso could  only have  been construed as operating upon the field enacted  in article 286(2) and could not be extended to any of the other provisions   of  article  286.   The  non-obstante   clause, however, makes it abundantly and further clear and states in 494 explicit  terms  that it is enacted only with  reference  to "this clause", i.e., article 286(2).  The President’s  order may  direct  that any tax on the sale or purchase  of  goods which  was  being lawfully levied by the Government  of  any State   immediately   before   the   commencement   of   the Constitution was to continue to be levied until 31st  March, 1951,  but the effect of that order was to raise the ban  in so far as it was imposed by the provisions of "this clause". The  President’s order therefore, only lifted the ban in  so far  as the transactions took place in the course of  inter- State trade or commerce and could not be projected into  the sphere  of  any  other  clause  of  article  286.   It  bad, therefore’  not  the  effect of lifting the  ban  which  was imposed  by article 286(1)(a) and the  Explanation  thereto, even  though the transactions covered by the Explanation  to article 286(1) (a) by and large fell within the category  of transactions  which took place in the course of  inter-State trade  or commerce.  The ban imposed by article  286(1)  (a) was independent and separate and could not be lifted by  the President’s order which had operation only in regard to  the interState  -character of the transactions.  The  moment  it was determined that the transactions were outside the  State by  virtue of the Explanation to article 286(1)(a)  the  ban imposed by article 286(1)(a) attached to the same and  could not  be lifted by the President’s order which operated  only on  the interState character of the transactions  and  saved only  those  inter-State  transactions which  did  not  come within the Explanation.   If  the contention urged on behalf of the State of  Madhya Pradesh  is accepted it would mean that we should  re-write, or  amend  the  proviso  to  article  286(2)  in,  order  to effectuate  the  supposed  intention  of  the  Constitution- makers.   The supposed intention of the  Constitution-makers was alleged to be to preserve to the States all the taxes on sale  or purchase of goods which were being lawfully  levied by   them  immediately  before  the  commencement   of   the Constitution by having resort to the territorial  connection or nexus theory.  We have no evidence before us of this 495 supposed  intention  of  the  Constitution-makers,  Whatever their  intention was can only be gathered from the  language which  they have used and where the language is plain  there is no scope whatever for speculation in that behalf When the Constitution-,    makers   themselves   used    the    words "Notwithstanding  that  the  imposition of  such  a  tax  is contrary  to the provisions Of this clause" it would not  be legitimate  for us to go behind the plain words and  try  to read into the proviso something which would involve either a deletion of the non-obstante clause ’or a re-writing thereof as suggested.  Whatever be the effect of our judgment on the treasuries  of  the  exporting or title   States  we  cannot assist  them by reading something into the proviso which  is not warranted by any canon of construction.  The proviso has

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reference  only  to article 286(2) and cannot  be  projected into any other clause of article 286.   The  untenability  of the contentions of  the  Respondents will  be clear from the following  illustration:Suppose  the goods  are  in the State of Madhya Pradesh at the  time  the contracts of sale of those goods are made in, say, the State of  Bombay.  Suppose further that the property in the  goods has  by reason of such sales passed in the State  of  Bombay but  the  goods as a direct result of such sales  have  been delivered for consumption in the State of Madras.  According to  the  Respondents, the President’s order made  under  the proviso  to article 286(2) saves the transactions  from  the ban of article 286 (1) (a) read with the Explanation.   Then the State of Madras will be able to tax by virtue of article 286(1) (a) read with the Explanation or on the nexus  theory by   reason   of  the  goods  being  delivered   there   for consumption; the State of Bombay will be able to tax because the title to the goods passed there; and the State of Madhya Pradesh will also be able to tax under the Explanation 11 to section 2(g) of the Act because the goods were in the  State of  Madhya  Pradesh at the time when the contracts  of  sale were made in the State of Bombay.  Nobody will say that  the Constitution    makers  intended  to   perpetuate   multiple taxation of 63 496 this  kind  and yet that will be the result if  we  were  to accede to the arguments advanced by the Respondents.   The  result,  therefore, is that so far as  the  post-Con- stitution  period is concerned the ban which is  imposed  by article  286 (1) (a) and the Explanation thereto  cannot  be removed by the President’s order which was issued under  the proviso  to article 286(2) and the High Court was  in  error when   it  construed  the  proviso  to  article  286(2)   as projecting into the field of article 286 (1) (a) and lifting the ban imposed therein.   On the above reasoning, Civil Appeal No. 137 of 1955 filed by the firm of Ramdas Khimji Brothers, Bombay, which relates only to the post-Constitution period will be allowed and the order of assessment dated the 29th December, 1952, will  be, set  aside.   The  Respondents will pay  the  costs  of  the Appellants here as well as in the Court below.   As regards Civil Appeals Nos. 132 of 1955,and 133 of 1955, however,  the  assessments therein relate not  only  to  the post-Constitution period but also the preConstitution period to which different considerations would apply.  The validity of  the  assessment in regard to the same would have  to  be canvassed  having regard to the various contentions  of  law and fact which could be urged against the same by the Appel- lants.  There are two outstanding questions which have  been mooted before us by the learned AttorneyGeneral in regard to this  period, viz., (1) a question of fact,  as  to  whether the Appellants were agents of the various mills in regard to the  transactions  which  were  the  subject-matter  of  the assessment, and (2) a question of law, whether the law under which  the tax was levied, viz., Explanation II to  section- 2(g)   of  the  Act  was  validly,,  enacted.   Both   these contentions,  though  they are also relevant  to  the  post- Constitution period were not specifically pressed before  us because the argument based on the proviso to article 286 (2) was  considered sufficient to set aside the  assessment  for that  period.  They would, however, appropriately arise  and be urged by the appellants when the liability to  assessment for the pre-Constitution 497

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period is to be determined and if we were to determine  that liability  we  would  have  to  deal  with  the  same.   The necessity  for doing so is, however, obviated by  reason  of the fact that the assessment is one composite whole relating to  the  pre-Constitution as well as  the  post-Constitution periods and is invalid in toto.  There is authority for  the proposition  that  when an assessment consists of  a  single undivided  sum  in respect of the totality of  the  property treated  as  assessable,  the wrongful inclusion  in  it  of certain items of property which by virtue of a provision  of law  were  expressly  exempted  from  taxation  renders  the assessment.  invalid  in  toto.  ’.The  Privy  Council  have observed  in  Bennett & White (Calgary) Ld.   And  Municipal District of Sugar City No. 5 (1951 Appeal Cases, 786 at page 816):--    "When  an  assessment is not for an entire sum,  but  for separate  sums,  dissected and earmarked each of them  to  a separate  assessable item, a court can sever the  items  and cut  out  one or more along with the sum attributed  to  it, while  affirming  the  residue.  But  where  the  assessment consists  of  a  single  undivided sum  in  respect  of  the totality  of  property treated as assessable, and  when  one component  (not dismissible as "de minimis") is on any  view not  assessable  and wrongly included, it would  seem  clear that such a procedure is barred, and -(,he assessment is bad wholly.   That matter is covered by authority.  in  Montreal Light,  Heat  & Power Consolidated V. City  of  Westmount  ( (1926)  S.C.R.  (Can.) 515) the court  (see  especially  per Anglin,  C.J.) in these conditions held that  an  assessment which  was bad in part was infected throughout, and  treated it  as  invalid.  Here their Lordships are  of  opinion,  by parity  of  reasoning, that the assessment  was  invalid  in toto".   It  was, therefore, urged that on the facts of  this  case the assessment was invalid in toto and that it should be set aside.   The  learned  Deputy  Advocate-General  of   Madhya Pradesh  did  not seriously contest this  position  and  the result, therefore, is that the order of assessment dated the 30th  June,  1953, in Civil Appeal No. 132 of 1955  and  the order of assessment dated the 498 9th  September,  1953, in Civil Appeal No. 133 of  1955  are liable  to  be  set aside.  The appeals  will  therefore  be allowed, the orders of assessment will be set aside and  the matters  will  go  back to the Assessment  Officer  for  re- assessment  of the Appellants in accordance with  law.   The Appellants will be at liberty to urge before the  Assessment Officer  the-contentions -of law and fact available to  them in the fresh assessment proceedings including those adverted to  above.   The  Respondents will pay the  costs  of  these Appellants here as well as in the Court below.                  Petition No. 567 of 1954. BHAGWATI   J.-This   petition  under  article  32   of   the Constitution also involves the interpretation of the proviso to  article  286(2) and raises the same question as  to  the meaning, scope and operation of the proviso as was raised in the  Civil  Appeals  Nos.  132, 133 and  137  of  1955  just disposed of   The  facts  giving rise to this Petition  may  be  shortly stated.  The petitioners are a partnership firm carrying  on business  of manufacturing bidis at Jabalpur and  registered as  a "dealer" under the Central Provinces and  Berar  Sales Tax  Act,  1947.   The petitioners  had  their  branches  at Lucknow,  Kanpur, Faizabad, Agra, Bombay and  Bhopal.   They had  also  their selling agents at various places  in  Uttar

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Pradesh  and elsewhere outside the Stae of  Madhya  Pradesh. They also entered into transactions direct with merchants in Uttar Pradesh.  The transactions in. question which were the subject-matter  of assessment at the instance of  the  Sales Tax  authorities  were  for the period  of  assessment  21st October,  1949 to 9th November, 1950., and spread  over  two periods, viz., (1) the period between 21st October, 1949  to 25th January, 1950, which may be called the pre-Constitution period, and (2) the period subsequent to the inauguration of the  Constitution on the 26th January, 1950, up to  the  9th November.,  1950, which may be called  the  postConstitution period.  The petitioners’ gross turn-over was determined  to be Rs. 49,40,140-6-9 and the                             499 amount  of  Sales Tax assessed on the transactions  was  Rs. 1,51,291-13-0  as per the order of the Deputy  Commissioner, Sales Tax, Madhya Pradesh, Respondent No. 3, dated the  14th July,  1954,  in  Sales  Tax  Appeal  No.  6/A-1.6.54.   The petitioners preferred_a second appeal to the Respondent  No. 2  against the said order.  The Respondent No.  2,  however, refused to admit or register the appeal unless the amount of tax  assessed was paid up.  The petitioners paid  about  Rs. 91,000/-  towards the amount of tax assessed but finding  it difficult to pay the balance filed this Petition against the State of Madhya Pradesh, Respondent No, 1, the  Commissioner of  Sales  Tax, Madhya Pradesh, Respondent No.  2,  and  the Deputy Commissioner of Sales Tax, Madhya Pradesh, Respondent No.  3,  for a writ of certiorari quashing  the  said  order dated the 14th July, 1954, made by Respondent No. 3 and  for consequential  reliefs.   The  Respondents  filed  a  return denying  the contentions of the petitioners and  maintaining that the Sales Tax was lawfully assessed by them against the petitioners.   The position as regards the petitioners’ turn-over for the period of assessment was as stated below:- Nature of the Parties.       Sales Prices of goods.Rs. (a)  Direct to selling agents on orders...................               6,15,236- 3-0 (b)  Direct to merchants on orders.                                    3,99,450- 2-0 (c)  Direct  to destinations other  than  branches or depots but    accounted    for    against branchesand depots.                         6,20,996-14-0 (d)  Direct to Stations or destinations having branches or depots owned by the proprietors of this registered firm-Kanpur, Bombay, Lucknow and Faizabad..............                     31,06,739-13-0 500 The Sales Tax authorities treated all these transactions  as transactions of sale coming within the definition  contained in  Explanation II to section 2(g) of the Act  and  assessed the  petitioners  to  sales  tax in  respect  of  the  same, negativing the contentions of the petitioners that they were in  any  event sales effected by them outside the  State  of Madhya  Pradesh  and that the State of Madhya  Pradesh  was, therefore,  not  entitled  to impose a tax  on  those  tran- sactions  by virtue of the provisions of article 286(1)  (a) and the Explanation thereto.  The   learned   Attorney-General  who  appeared   for   the petitioners  contended  that the bidis manufactured  by  the petitioners  were all actually delivered as a direct  result of  the transactions of sale for the purpose of  consumption

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in   the  State  of  Uttar  Pradesh  and  that   after   the inauguration of the Constitution on the 26th January,  1950, it  was  only  the  State of Uttar  Pradesh  which  was  the delivery State that alone had the right to impose the tax on these  transactions notwithstanding the fact that under  the general  law relating to the sale of goods the  property  in the goods might have passed in the State of Madhya  Pradesh. He,  therefore,  urged that these  transactions  were  sales outside  the State of Madhya Pradesh and that the  State  of Madhya  Pradesh  was not entitled to impose a  tax  on  such sales.   The  learned  Advocate-General of Madhya  Pradesh  on  the other  hand  contended that these  were  purely  intra-state transactions  entered  into by the  petitioners  within  the State of Madhya Pradesh and that the Explanation to  article 286(1)(a)  did not come into play at all because  the  goods were not actually delivered as a direct result of such sales for  the  purpose  of  consumption in  the  State  of  Uttar Pradesh.  He, therefore, maintained that even for the  post- Constitution period there was no ban on the State of  Madhya Pradesh  imposing the sales tax on what were purely  "inside sales".  It  is  necessary  in view of these  rival  contentions  to ascertain  the true nature of the transactions in  question. In paragraph 15 of the Petition,, the petitioners 501 had averred that the bidis manufactured by the firm were all delivered  in the State of Uttar Pradesh for consumption  in that  State  and  that after the  26th  January,  1950,  the delivery State, viz., the State of Uttar Pradesh, had  alone the right to impose tax on the sales of the commodity.  They had further submitted that the State of Madhya Pradesh where the  bidis were manufactured and from where they  were  sent could not any more exercise its right to levy a tax on  such transactions of sale taking place elsewhere by reason of the inhibition contained in article 286.  In the return filed by the  Respondents, they did not deny the allegation  made  by the   petitioners   in  their  Petition   that   the   bidis manufactured by the firm were all delivered,-in the State of ’Uttar Pradesh for consumption in that State.  In substance, they  contended that in spite of the State of Uttar  Pradesh being   the  delivery  State  within  the  meaning  of   the Explanation  to article 286 (1) (a), the liability of  these transactions  to sales tax at the instance of the  State  of Madhya Pradesh was saved by the President’s order made under the  proviso  to article 286(2) and that the  imposition  of such tax at the instance of the State of Madhya Pradesh  was lawful  and  did not contravene the  provisions  of  article 286(1)(a) read with the Explanation thereto.   Both   the   order  which  was  made  by   the   Assistant Commissioner  of  Sales  Tax,  Jabalpur,  in  the   original assessment  case  No. 16 of 1950-51, dated the  7th  August, 1953,  and the order which was made in Sales Tax Appeal  No. 6/A-1.6.54  by the Deputy Commissioner of Sales Tax,  Madhya Pradesh,  Respondent  No.  3, dated  the  14th  July,  1954, proceeded on the basis that even though the transactions  in question  were  transactions  of sale where  the  goods  had actually been delivered as a direct result of such sales for the  purpose of consumption in the State of  Uttar  Pradesh, the President’s order made under the proviso to article  286 (2)  saved  the transactions also from the  ban  of  article 286(1) (a) and the Explanation thereto and that the State of Madhya  Pradesh was, therefore, entitled to impose a tax  on the same.  It was never. 502

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contended  before either of them that the sales were  purely "inside sales" and that the Explanation to article 286(1)(a) did not come into play at all under the circumstances of the case.  The facts as found by the Sales Tax authorities  also emphasized   that   these  transactions  fell   within   the definition  of  sale  contained in  the  Explanation  11  to section  2(g)  of  the  Act and that so  far  as  the  post- Constitution  period was concerned they were saved from  the ban  of article 286 (1) (a) and the Explanation  thereto  by the  President’s  order made under the  proviso  to  article 286(2).   It  was, however, urged by the  learned  Advocate- General  of Madhya Pradesh that the transactions  were  pure "inside  sales"  entered into by the petitioners  in  Madhya Pradesh  on orders received by them from outside the  State. These  orders were accepted by the petitioners in the  State of  Madhya  Pradesh  and  goods  were  appropriated  to  the contracts  and the property in the goods passed  within  the State of Madhya Pradesh and that, therefore, they were  pure intraState  sales or "inside sales" which it was within  the competence of the State of Madhya Pradesh to tax.   This contention of the learned Advocate-General of  Madhya Pradesh is untenable.  So far as direct supplies to  selling agents on orders and direct supplies to merchants on  orders covered  by  items (a) and (b) above are concerned,  it  was found that these supplies were made to the merchants  buying the  goods on commission basis or profit on  their  previous orders, instructions or indents which were either in printed forms  or  in  ordinary letters and  the  sale  prices  were realised by sending bills and railway receipts through  some scheduled  banks.   The  very fact that the  bills  and  the railway receipts were sent through the scheduled banks  went to show that the petitioners reserved the right of  disposal of goods covered by those railway receipts and the  property in the goods passed in the State of Uttar Pradesh only after the  relative bills were either accepted or honoured by  the purchasers  and  the  railway  receipts  delivered  by   the scheduled banks to them.  It is clear, therefore, that 503 in  those  cases the sales were completed in  the  State  of Uttar  Pradesh  and were not intra-State  sales  or  "inside sales"  qua  the State of Madhya Pradesh.   As  regards  the direct  supplies  to  destinations other  than  branches  or depots  but  accounted for against the  branches  or  depots being  item  (c) above, it was found  that  the  petitioners despatched  the goods and billed them to depot managers  who were  responsible for the collection of the orders and  then the  railway  receipts  and  bills  were  sent  there.   The managers  prepared  other bills adding incidental  or  other charges and delivered the railway receipts to the  customers to  whom  the  goods  were sent from  the  State  of  Madhya Pradesh.   Here also the despatches of the goods  were  made from the State of Madhya Pradesh by the petitioners to their depot  managers and it was the depot managers who  in  their turn prepared and submitted their own bills and handed  over the   railway   receipts   to   the   respective   customers appropriating the goods themselves to the contracts of  sale which  had  been entered into by them with  the  latter  and completing  the sales in the State of Uttar Pradesh.   These transactions  also  were, therefore, sales effected  in  the State of Uttar Pradesh and did not fall within the  category of  intra-state  sales or "inside sales" qua  the  State  of Madhya Pradesh.   The  direct  supplies to Stations or  destinations  having branches  or  depots owned by the proprietors of  the  firm, Kanpur,  Bombay, Lucknow and Faizabad being item (d)  above,

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also  were  outside sales qua the State  of  Madhya  Pradesh inasmuch  as  the branch managers asked the  petitioners  to send  stocks of goods to execute the orders which  they  had obtained  from the customers to make their own  supplies  to them.   As  a  matter  of fact it  was  found  that  several consolidated indents were placed by the depot managers  with the petitioners in respect of the previous orders which  had been  collected  by them and the  petitioners  supplied  the goods  to  the  depots  or branches  in  pursuance  of  such indents.  If this was the true position qua these  supplies, these sales also were completed in 64 504 the  State  of  Uttar  Pradesh by  the  depots  or  branches supplying  the  goods in their turn  to  several  customers. There  could be no sales as such between the petitioners  on the one hand and their depots or branches on the other  hand and  the State of Madhya Pradesh could certainly not  be  at all in a position to tax the same.   The  whole theory, therefore, of "inside sales"  falls  to the ground and the only thing which we are left with is-that these transactions were inter-State transactions in which as a  direct  result  of such sales  the  goods  were  actually delivered  for  the purpose of consumption in the  State  of Uttar   Pradesh.   The  Explanation  to  article   286(1)(a) determined  the  State of Uttar Pradesh to be the  State  in which  the sales took place and which alone was entitled  to tax these transactions, the State of Madhya Pradesh becoming an "outside" State for the purpose.   Apart from the ban imposed on the State of Madhya  Pradesh under article 286(1) (a) and the Explanation thereto,  these transactions were also in the course of inter-State trade or commerce  and  were hit by the ban of article  286(2).   The President’s  order  no  doubt lifted that ban  but  was  not competent to lift the ban under article 286 (1) (a) and  the Explanation  thereto with the result that in spite  of  that order  the State of Madhya Pradesh was not in a position  to impose a tax on these transactions during the post-Constitu- tion period.   The assessment of these transactions to tax for the  post- Constitution  period,  therefore, is invalid and  cannot  be sustained.   The  assessment, moreover, is a  composite  one covering  the  pre-Constitution period as well.   The  case, therefore,  falls within our judgment in Civil Appeals  Nos. 132,  133 and 137 of 1955 just delivered, and following  the reasoning contained therein, we are of the opinion that  the order  dated  the  14th  July,  1954,  made  by  the  Deputy Commissioner,  Sales Tax, Madhya Pradesh, Respondent No.  3, in Sales Tax Appeal No. 6/A- 1.6.54 should be set aside.   We accordingly allow the Petition, set aside the 505 said order dated the 14th July, 1954, and the matter will go back  to  the Assessment Officer for  re-assessment  of  the petitioners in accordance with law.  The petitioners will be at  liberty  to  urge  before  the  Assessment  Officer  the contentions  of law and fact available to them in the  fresh assessment proceedings.  The Respondents will pay the  costs of the petition. JAGANNADHADAS J.-I regret I feel constrained to differ  from the  view  taken  by  my learned  brothers  as  regards  the construction of proviso to article 286(2) and the effect  of the Presidential order issued there, under.   There  is no dispute that the proviso has to be  construed as  part  of  article 286(2).  It is meant  to  empower  the President  to keep the ban arising thereunder  in  temporary

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abeyance  so that the States may continue to levy  taxes  on sales by virtue of their preConstitution sales-tax laws  (if then  lawful) for a limited period.  It is  urged,  however, that  the  proviso (meaning thereby  also  the  Presidential order  thereunder) is effective to lift only the  ban  under article  286(2) and that the ban under article 286(1)(a)  is operative  nonetheless.  Now, it may be correct to say  that these two bans are imposed from different angles and are  in that sense independent.  But there can be no doubt that they are  substantially overlapping in operation.  A  transaction which  brings about an outside sale is also  an  inter-State transaction (barring, if at all, a few ingeniously conceived and  illustrated  cases).  The effect of each  of  the  bans under  article 286 is to demarcate the fields  within  which the taxing power of the States on sales cannot operate.  If, as  I conceive, the two bans under articles 286(1)  (a)  and 286(2), are overlapping, the fact that they are imposed from different angles cannot obscure the result, viz., that  they bring about the demarcation of the same-or substantially the same-field  of no taxation.  It appears to me that it is  in this  light  that  the proviso and  the  Presidential  order issued  thereunder have to be construed.  Now,  the  proviso (with the Presidential order) declares the field covered  by sales in the course 506 of  inter-State trade and commerce as taxable for a  limited period by stating positively and emphatically that "any  tax on  the sale or purchase of goods which was  being  lawfully levied  by the Government of any State,  immediately  before the  commencement of the Constitution. shall continue to  be levied  until  the 31st day of March, 1951".   There  is  no doubt  the  non-obstante  clause which will  be  dealt  with presently, and which only emphasises the fact that this is a proviso  to article 286(2).  But there is no  mistaking  the positive and mandatory terms of the proviso.  The effect  of this is clearly and unequivocally to make the whole field of inter-State  trade  and  commerce  temporarily  taxable   in respect of the sales which take place in the course thereof. -If this be so, it appears to me to be implicit therein that no  other  ban on such taxation can operate,  for  the  time being, within that very field.  To construe the two bans  as independently  and  cumulatively operative is to  impute  to them  some  kind of Picturesque potency and is to  miss  the reality, viz., that all the bans under article 286 are meant to   serve  the  same  purpose,  viz.,  that   of   imposing restrictions  and  thereby  demarcating  the  fields  of  no taxation.   The bans and the proviso are parts of  the  same article  and  have to be harmoniously  construed.   The  un- equivocal and positive language of one part, cannot be taken to  have  been obliterated by the negative language  of  the other part so as to rsult in futility.   A  similar situation as that contemplated by  the  proviso would  also  arise with reference to the  saving  clause  in article  286(2).  If the proviso is to be construed  in  the way suggested by the learned AttorneyGeneral, it would  seem to  follow  that when and as the Parliament  lifts  the  ban under article 286(2), the lifting of that ban would  equally become   futile  by  virtue  of  article   286(1)(a).    The Parliament has not in terms Veen given the power to lift the latter ban.  This, therefore, will lead to the extraordinary result  that though the Constitution has in  terms  provided that  the ban on taxation of sales in the course  of  inter- State  trade and commerce can be lifted, by  the  Parliament generally, and by the President for a 507

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limited  period,  the exercise of both  these  powers  would become  ineffective  and  still-born by  virtue  of  article 286(1)(a).  It appears to me unreasonable to impute any such intention as inevitably arising from the language used.   It appears  to me, with great respect, that, whether it  is  by parliamentary legislation or by the Presidential action that the  ban on taxing sales in the course of inter-State  trade and   commerce  is  lifted,  the  principle  of   harmonious construction  of  article 286 taken as  an  integral  whole, requires  that the lifting of the ban is to be construed  as laying open for taxation the entire field covered by article 286(2)  and to carry with it the implication that  no  other overlapping  ban will be operative.  No doubt, it  has  been suggested  that so far as lifting of the ban  under  article 286(2) by the Parliament is concerned, the same would be  at least partly operative by virtue of article 286(1) (a) taken with  the Explanation under which  the  consumption-delivery State may well be free to tax.  This was the view  expressed by the learned dissenting Judge in the case in The State  of Bombay  v.  The  United  Motors  (India)  Ltd.(1).  But  the majority  in the recent decision in the Bengal Immunity  Co. Ltd. v. State of Bihar(2) including the said learned  Judge, have  left that question open.  It is problematical  whether having regard to the inevitable extra-territorial  operation of  the levy of such a tax and the consequent harassment  to the  business community which looms large,  the  Explanation will  receive  that construction again and not  receive  the strict construction preferred in the dissenting judgment  in the  case in State of Travancore-Cochin v.  Shanmugha  Vilas Cashew Nut Factory(3).  The result, therefore, of construing the proviso and by parity of reasoning the saving clause, as merely  removing  the  ban of a  particular  nature  leaving another overlapping ban to operate, would be to render  both the  saving  clause in, and the proviso to,  article  286(2) virtually nugatory. (1)  [1953] S.C.R. 1069. (2)  Supreme Court Judgment in Civil Appeal No. 159 of 1958, (3)  [1954] S.C.R. 53. 508 The  argument  based  on  the  non-obstante  clause  in  the proviso, viz.  "Notwithstanding that the imposition of  such tax is contrary to the provisions of this clause" remains to be  considered.   It  is  urged  that  this  clause  clearly indicates the intention that the operation of the proviso is to  be  confined  to the sole purpose  of  lifting  the  ban arising under article 286(2).  With respect, I am unable  to agree.  The non-obstante clause undoubtedly affirms the fact that the ’proviso is operative in respect of article 286(2). But it does not purport to limit the effect of the  proviso, which a reasonable construction thereof may justify.  A non- obstante  clause does not normally add to or  subtract  from the  main  provision  of which it is a part.   It  is  often enough  inserted by way of extra caution.  But it  does  not have  the  effect  of limiting the  operation  of  the  main provision.  (See Aswini Kumar Ghosh v. Arabinda Bose(1)  and The  Dominion  of  India  v.  Shrinbai  A.  Irani(2)).   The suggestion  that the Presidential action lifts the ban  only as regards the inter-State sales would be to read the phrase "notwithstanding that" as meaning "in so far as".  I can see no warrant for any such reading.   In my view, therefore, the pre-Constitution salestax laws, if  then lawful, are not hit by article 286(1) (a)-at  least to the extent that the ban under article 286(1) (a) overlaps with that under article 286(2).  ’In this ’view, the  orders of  assessment  in these cases cannot be set aside  and  the

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validity  of the relevant preConstitution laws will have  to be considered and the further facts gone into.  But it is now not necessary to do so in these cases in  the view taken by my learned brothers and the order proposed  by them will govern these cases. (1)  [1958] S.C.R. 1, 21 and 24. (2)  [1955] 1 S.C.R. 206, 213. 509