on c Nos 9835 38 of 1983
Under Article 32 of the Constitution of India WITH WPCNos7468 7469813838 398353988554358538684 1489 86 1269185 489 9083 8183 6886  106587 Lakshmi Chandra Goyal BB Sahni and Serve Mitter for the Petitioners DP Gupta Solicitor General Ms Indu Malhotra Ms Aysha Khatri Ms V Mohana and Ms Nisha Bagchi for the Respondents
The Judgment of the Court was delivered by BP JEEVAN REDDY J
A common question arises in this batch of writ petitions
We may take the facts in writ petition C No 9835 of 1983 filed by Ms K B Handicrafts Emporium  Ors as representative of the facts in all the cases
The petitioners are firms engaged in the manufacture and sale of handicrafts items
They are registered Sales Tax Dealers in the State of Haryana
They purchased raw material within the State against declaration forms ST 15 prescribed under Rule 21 of the Haryana General Sales Tax Rules read with Section 24 of the Act
By issuing Form ST 15 the petitioners undertook that the goods manufactured by them out of the said raw material would be sold by them either within the State or in the course of inter state trade and commerce or in the course of export within the meaning of Section 51 of the Central Sales Tax Act
A dealer issuing the said Form need not pay the purchase tax on such raw material
After manufacturing the items of handicrafts the petitioners say they sold them to dealers in Delhi who in turn exported them out of India
At the time of sale of handicrafts to Delhi dealers the Delhi dealers issued Form H prescribed under the Central Sales Tax Rules which means that the goods purchased were meant for export
Neither party paid tax on the said salepurchase
457 For the assessment years in question the Sales Tax Authorities of Haryana levied purchase tax on the purchase of raw material made by the petitioner following the decision of the Punjab and Haryana High Court in Ms Murli
Manohar and Company Panipat  Ors
V State of Haryana  0rs
Civil Writ Petition No 1227 of 1980 under section 9 of the Haryana General Sales Tax
Act 1973
However the assessing authority computed the tax with reference to the purchase value of the goods exported against Form H The petitioners
did not choose to file an appeal but directly approached this Court by way of this writ petition on the ground that in view of the decision of the Punjab and Haryana
Hig h Court in Murli Manohar there was no point in their pursuing the remedies under the Act in that State
Appeals were preferred in this court against the decision of the Punjab and Haryana High Court in Murli manohar which have been disposed of by this Court on October 25 1990 reported in  This
Court allowed the appeal and set aside the judgment of the High Court
When these writ petitions came up for hearing it was urged by the learned counsel for the petitioners that in view of the decision of this Court in Murli Manohar the writ petitions must be allowed stria ghtway
This was demurred to by the learned Solicitor General appearing for the respondent State
We are of the opinion that the decision of this Court in Murli Manohardoes cover the point raised in these appeals but it is necesary to add a clarification
Before we do that it is necessary to state a little background
Earlier to the
rendering of the decision in Murli Manohar a Bench of this
Court comparising Sabyasachi Mukharji and Ranganathan JJ
held in Good year India Ltd and Ors
vs State ofHaryana and Anr
1990 2 SCC71 that where the goods manufactured are taken out of Haryana without effecting a sale to the branch office or depot of the Manufacturer or to the office or depot of his agent no purchase tax can be levied under section 9 of the Act on the raw material purchased within the State and used in the manufacture of such goods
It was held that imposing such ta would amount to levying tax on consignment which the State Legislature was not  competent to do
Section 9 as it then stood stated expressly that no such purchase tax on raw material was leviable if the goods manufactured out of such raw material were sold either within the State or were sold in the course of inter state Trade and Commerce or were sold in the course of export within the meaning of Section 51 of the Central Sales Tax Act
MurliManohar was decided in the light
of the law declaredin Goodyear
Later However a Bench of three
Judges comprising SRan anathan vs Ramaswami JJ
and one of usBPJeevan Reddy J held that
Goodyear does not lay down the correct law vide Hotel Balaji and 458 Ors
vs State of Andhra Pradesh  Ors etc
JT It was held in Hotel Balaji that having regard to the scheme of and the objective underlying section 9 it was competent for the State Legislature to levy purchase tax on raw material purchased within the State where the goods manufactured out of such raw material are taken out of the State without effecting a sale within the State or otherwise than by way of aninter state sale or by way of an export sale within the meaning of Section 51 of the Central Sales Tax Act
It was held that such a tax does not amount to consignment tax
It is this decision in Balaji that calls for a certain clarification of the principles enunciated in Murli Manohar
The facts in Murli Manohar Were substantially similar to the facts herein
The dealers within the State of Haryana purchased raw material without paying tax manufactured goods out of the same and sold the manufactured goods to dealers who in turn exported those goods out of India
On these facts it was held by the Punjab and Haryana High Court that inasmuch as the sale to exporters was a penultimate sale falling under section 53 of the Central Sales Tax Act and further inasmuch as Section 9 of the State Act exempted only export sales within the meaning of section 51 of the Central Sales Tax Act but not the penultimate sale falling under Section 53 tax under Section 9 was leviable
On appeal this court affirmed that Section 9 of the Haryana Act before it was amended by Haryana Act 1 of 1988 did not exempt as sale falling under Section 53 but exempted only a sale failing under section 51
Even so the appeal was allowed on the following reasoning the sales made by the assesses can only fall within one of the three categories
They are either local sales or inter state sales or export sales  
We are unable to conceive of a fourth category of sale which could be neither a local sale nor an interstate sale nor an export sale
 In other words the decision says that there can be only three types of sales namely intrastate sales inter state salesand export sales and no other
A sale to an exporter would be either an intrastate sale or an inter state sale in either case it does not attract the purchase tax on raw material under Section 9 of the Haryana Act says the decision It is on this reasoning that the appeals were allowed inspite of the clear enunciation that the sales failing under Section 53 of the Central Sales Tax Act were not exempt under Section 9 of the Haryana Act as it then stood
The above holding is evidently influenced by the decision in Goodyear which was good law at the time Murli Manohar was decided
However in the light of the decision of Hotel Balaji it must be held that there is one more category in addition to the three categories mentioned above
The fourth category is where a dealer in Haryana takes his goods out of the Haryana without effecting a sale
An illustration would serve to highlight what we say a Haryana manufacturer takes his goods to Delhi without effecting a sale
In Delhi
if he finds it more profitable 459 he will sell it to a dealer in Delhi
Or if he finds it more profitable to sell it to an exporter in Delhi he will sell the same to such exporter
These two sales are neither intrastate sales nor inter state sales nor export sales within the meaning of Section 51 of the Central Sales Tax Act
In one Case it is a sale in Delhi and
the other it is a punultimate sale within the meaning of Section 53 of the Central Sales Tax Act
According to Section 9 of the Haryapa Act as explained in Hotel Balaji and Murli Manohar purchase tax can be levied and collected on the raw
material purchased by the manufacturer within Haryana which was utlised for manufacturing the goods so sold in these two situations
We must make it clear that in a petition under Article 32 of the Constitution it is not our province to go into facts
As repeatedlly emphasised by this court the
question whether a particular sale is an intra state salean inter state sale an export sale within the meaning of section 51 or a penultimate sale within the meaning of section 53 or otherwise is always a question of fact to be decided by the apporiate authority in the light of the principles enunciated by Courts
In these circumstances we content ourselves by declaring the law and leave it to be applied by the appropriate authorities
Counsel for the petitioners says that all the sales effected by all the petitioners are inter State sales
May beor may not be
We leave the matters to be disposed of by the authorities under the Act in the light of the law declared by Is Court in Murli Manohar Hotel Balaji and in this judgment
The writ petitions are disposed of with the aforementioned clarification and observations
No costs
VPR Petitions disposed of


Summary:
The appellant assessee was a Registered Firm
The assessment year concerned was 1973 74
During the relevant previous year being the financial year 1972 73 the assessee sold shares it held in several companies from the sale in three companies it secured a gross long terms capital gain of Rs561508 However in the sale of shares in six other companies it sustained a long term capital loss in a sum of Rs 96583
The assessee computed the capital gains on these transactions of sale of shares less the deductions under Section 80 Tb and Section 80T b ii 1 and showed a profit of Rs 18167100 The Income Tax Officer did not agree with the mode of computation indicated by the asssessee and set off the long term capital loss against the long term capital gain in the first instance and then applied the deductions provided by Section 80 T to the balance figure and ultimately computed the capital gains included in the total income at Rs 229963
The assessee aggrieved by the aforesaid assessment preferred an appeal which was dismissed by the Appellate Assistant Commissioner
In further appeal by the assessee the Tribunal agreed with the assessee s computation
Revenue asked for and obtained a reference which the High Court answered in the negative ie in favour of the Revenue
The High Court held that the income from capital gains constituted a separate head of income under the Income Tax Act and that capital gains are bifurcated into long term capital gains and short term capital gains and 446 447 relying on the decision in Commissioner of income Tax vs Sigappi Achi held that in the instant case it was concerned only with long term capital gains and that Section 70 2 ii prescribes the manner in which the loss from sale of long term capital asset is to be set off
In the appeal to this Court it was submitted on behalf of the appellant assessee that according to the provisions and scheme of the Income Tax Act capital gains had to be computed in respect of each asset separately and that Section 80 T prescribes different percentages of deduction for different types of capital assets and that the correct method therefore is to compute the capital gains with respect to each asset transferred saparately in accordance with Section 80 T before setting off the losses
Dismissing the appeal this Court HELD 1
This is not a case where the assets transferred by the assessee during the relevant previous year consisted of both the types of capital assets mentioned in sub clauses i and ii of clause b of Section 80 T
They were of only one type namely those failing under sub clause ii viz shares
From the sale of certain shares the assessee derived profit and from the sale of certain other shares he suffered loss
450 E 2
The deductions provided by Section 80 T have to be applied to the  capital gains arising from sale of long term capital assets
In other words the deductions provided by the said section have to be applied to the amount representing the capital gains during the relevant previous year
The amount of capital gains during the relevant previous year means the profits derived minus the losses suffered
452 D 3
It is not possible to treat the transfer of each asset separately and apply the deductions separately
452 E Commissioner of Income Tax vs V Venkarachalam Civil Appeal No 3044 of 1993 dated April 131993 relied on
Commissioner of Income Tax Central Madras v Canara Workshops Private Limited  distinguished