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AFR
Reserved on 20.2.2019
Delivered on 1.3.2019
Chief Justice's Court
Case : SALES/TRADE TAX REVISION No. 244 of 2015
Applicant : M/S Target Centre
Opposite Party : The Commissioner Commercial Tax Lko.
Counsel for Applicant : Pooja Talwar
Counsel for Opposite Party : C.S.C.
Hon'ble Govind Mathur,Chief Justice
Hon'ble Saurabh Shyam Shamshery,J.
(Delivered by Hon'ble Govind Mathur, C.J.)
In a sales tax reference, a Single Bench of this Court in M/s Agarwal
Brothers, Faizabad Versus Commissioner of Sales Tax, Uttar Pradesh
reported in [1979 UPTC 1076] held that airgun is capable to inflict
bodily injuries, therefore, the same is covered by a Notification dated
23.03.1971 regarding arms and ammunitions.
The issue as to whether “airgun” and “airpistol” are to be taxed under
entry 124 “Part A” of Schedule II as “toy excluding electronic toys” or has
to be taxed “arms and ammunitions” vide entry 2 of Schedule IV came up
in the instant sales/trade tax revision before a Single Bench of this Court.
The Single Bench while considering the issue noticed in the judgment of
this Court in M/s Agarwal Brothers, Faizabad (supra), the definition of
term “arms” as prescribed under Section 2(c) of the Arms Act, 1959
(hereinafter referred to as “Act, 1959”) and the judgments of Kerala High
Court and Madhya Pradesh High Court on the same print.
The Kerala High Court in Deputy Commissioner of Sales Tax (Law),
Board of Revenue (Taxes) Versus K. Mohammed reported in [1989]
74 STC 210 while disagreeing the judgment of Allahabad High Court in
the case of M/s Agarwal Brothers, Faizabad (supra) arrived at a
conclusion that the phrase “arms and ammunition” will not cover air
guns and pellets.
The Madhya Pradesh High Court in Commissioner of Sales Tax, M.P.
Versus Pilababu Vishwanath Rao, MCC No. 113 of 1986; decided on
01.03.1990 after taking note of judgment in M/s Agarwal Brothers,
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Faizabad (supra) held that the law laid down by Allahabad High Court
in the case of M/s Agarwal Brothers, Faizabad (supra) is not correct.
The argument advanced on behalf of the revisionpetitioner is that air
gun and airpistol are toys used to fix the target by the player for
recreation and, as such, no tax can be legally charged as the entry falls
under Sr. No. 51 of Schedule I of Uttar Pradesh Value Added Tax Act,
2008 (hereinafter referred to as “Act, 2008”). In alternative, it is
submitted that airgun and airpistol at the most can be taxed at the rate
of four per cent being falling within the category of “toys excluding
electronic toys” as referred at Sr. No. 124, Part A, Schedule II appended
with the Act, 2008. It is asserted that the law laid down in the case of
M/s Agarwal Brothers, Faizabad (supra) does not lay down the correct
law as the Court in that matter has not examined the purpose and use of
designing and manufacturing airguns and airpistols. Ms. Pooja Talwar,
learned counsel for the revisionpetitioner, to substantiate the
contention, heavily relied upon the judgments of the Kerala High Court
and the Madhya Pradesh High Court referred in preceding paragraphs.
Per contra, Sri Manish Goyal, learned Additional Advocate General states
that the terms “arms” and “ammunition” have not been defined under
the Act, 2008, thus, it would be appropriate to accept their dictionary
meaning, and, according to that, airgun or airpistol is a lethal weapon,
hence, these are to be included with item referred at Sr. No. 2 Schedule
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IV appended to the Act, 2008. Learned Additional Advocate General has
cited different dictionaries to substantiate the contention aforesaid.
Heard learned counsels and considered the issues referred to us from
different angles.
The Act, 2008 is an act to provide for introducing Value Added System of
taxation for the levy and collection of tax on sale or purchase of goods in
the State of Uttar Pradesh and in matters connected therewith and
incidental thereto. As per Section 4 of the Act, 2008, the tax, payable on
sale of goods, shall be levied and paid on the taxable turnover of sale.
The goods named or described in column (2) of Schedule II, at every
point of sale and at the rate of four per cent. The goods named or
described in column (2) of Schedule IV are subject to tax at the point of
sale mentioned in column (3) and at the rate of tax mentioned in column
(4) of Schedule against such goods. The applicable tax rate for Schedule
IV for the goods shown in entry 2 Schedule IV is 21 per cent.
Neither the term “toy” nor “arms” and “ammunition” are defined under
the Act, 2008. The term “arms” is defined under the Arms Act, 1959 and
Section 2(c) as under:
No definition of “ammunition” is given even under the Act, 1959. At the
threshold, we would like to state that the definition of “arms” as given
under the Act, 1959 may be useful to examine the purpose and use of
designing and manufacturing airguns to a limited extent and that cannot
be the sole criteria to determine nature of the article concern, in view of
settled principle of interpretation given in one statute which is enacted
4
In Words and Phrases Permanent Edition Volume 3, the term “airgun” is
as under:
The definition referred above would not be of much assistance in view of
the fact that, in our country, there is no need of having any license to
possess airgun even by a minor.
“air gun, weapon based on the principle of the primitive
blowgun that shoots bullet, pellets, or darts by expansion of
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compressed air.
Most modern air guns are inexpensive BB guns (named
for the size of the shot fired). The best of these develop about
half the muzzle velocity of light firearms, are accurate enough
for marksmanship training at ranges up to 100 feet (30 metres),
and can kill small game. Darts with tranquilizing drugs may be
fired to immobilize animals for handling or capture. An air gun
projectile seldom carries beyond 100 yards (90 metres).
Gas guns are comparable in power and accuracy to air
guns but are powered by a reservoir or cartridge of liquid carbon
dioxide, of which a portion escapes as an expanding gas when
the trigger is pulled. Major ref. 8:501d shooting competition
event and rules 16:707c.
This definition too would not be of much use as that discloses mechanics
of the airgun but not the purpose and use for its designing and
manufacturing and further as to whether that can be treated as a toy or
weapon.
The airguns and compressed airguns are described in more detail in the
New Encyclopedia Britannica in volume 8 and, according to that, the
guns resembles firearms but using compressed air to project either a
single bullet or a charge of shot relating to short distances. The pellet of
airgun that hits soft tissues of a human being, such as eyes, can cause
tragic results. The description given above is certainly useful to the
extent to arrive at a conclusion that a pellet projected from airgun may
cause dangerous injuries if not used cautiously or if shot intentionally to
cause injury at certain parts.
The literature of Air Weapon fatalities authored by C M Milroy, J C Clark,
N Carter, G Rutty and N Rooney downloaded from jcp.bmj.com
provides more effective details relating to airguns, airpistols and
compressed air weapons. In the literature aforesaid, it is concluded that
damage that airweapons cause a frequently underestimated and they
should not be thought of as toys. Children should not be allowed access
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to guns without full supervision by responsible adults. While arriving at
the conclusion aforesaid, the authors examined mechanism and use of air
weapons in detail. The discussion made in the literature aforesaid
deserves to be quoted and that is as follows:
“Much has been published on the effects of airgun pellets
penetrating sensitive organs, particularly the eyes but fewer fatal
cases have been reported.
In the United Kingdom, to be lawful an air weapon should
propel a pellet with an energy of less than 12 ft lb (16.3 J). In
seven fatal cases quoted by Warlow, all had energy values below
the legal limits, and three of the victims were adults. In
comparison, .22 rimfire cartridges, which are a relatively low
velocity powder charged cartridge but of the same calibre as
many air powered weapons, have much higher energy values
(27 to 111 ft lb) with velocities between 650 ft/s (198.2 m/s)
and 1710 ft/s (521.2 m/s).
On test firing, one type of American air powered weapon,
the Sheridan air rifle, was found to have a range of
approximately 340 yards (310 metres). This weapon is designed
to fire a .20 Sheridan pellet. In carrying out test firing on
sections of beef rib with average thickness of 3–4 mm, the pellets
discharged from this weapon did not penetrate. Most pellets that
are fired in the United Kingdom are the diabolo waisted type,
although pellets of similar design to the Sheridan .20 pellet may
be encountered, such as the “rabbit magnum” for .22 calibre
weapons. This ammunition is heavier than waisted pellets, being
on average just under 2 g (average 1.96 g). Pellets with a plastic
coat and aluminium core are also encountered.
The vast majority of fatal cases reported have been with
weapons that would be legal in the United Kingdom. However,
guns can be modified, increasing the velocity of the pellet. In the
case of Buchanan, the regular oiling of the barrel was felt to
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have produced the effect of “dieseling,” where the addition of oil
or diesel fuel is used so that it spontaneously ignites and
increases muzzle velocity. We have also encountered a fatal case
where an air rifle was modified and used with home made
powder ammunition, turning the gun into a home made
firearm, or so called “zip” gun.
skin an impression of the muzzle of the gun may be left, as in
two cases in this series. The muzzle impression may vary but if
the gun is available it should be compared with the wound
appearance. If there are any suspicious circumstances the death
should be investigated by a forensic pathologist.
The airgun should be examined by a ballistics expert to
determine its muzzle energy and the trigger pressure. The trigger
pressure may give an indication of the likelihood of an
accidental discharge. Most air rifles have trigger pulls of between
3 and 7 lb (1.4 to 3.2 kg), although in more expensive target
guns which have adjustable pulls it can be less.
common feature, as the assailant is most often another child.
Of the five cases presented here, two were suicides and the
other three accidents. Accidents far outweigh other reasons for
injury and death. However, deliberately inflicted injury does
occur, as evidenced by the case of Green and Good and one of the
cases reported by DiMaio, where the deaths were considered
homicides. Airguns as a weapon of suicide are unusual, but cases
have been recorded, as well as unsuccessful attempts. The adult
skull is vulnerable to penetration by airgun pellets, and if the
temple region is chosen as the entry site, suicide may be
achieved. In the case of Jacob and colleagues, the temple was the
site of entry, as was one of the cases of suicide in this series. The
chest is also a potential site for suicide as illustrated by our last
case. In the self inflicted injuries in our series, a muzzle
impression was left by the weapon, indicating a contact wound.
In the suicide reported by Cohle et al, three pellets were fired
with one penetrating into the occipital lobe. The victim also shot
himself with a 12 bore shotgun in the chest, presumably because
the airgun wounds did not produce the desired effect.
Air powered weapons are readily available in the United
Kingdom, being purchasable without a licence. An estimated
four million weapons are present in households in the United
Kingdom. The damage that air weapons cause is frequently
underestimated and they should not be thought of as toys.
Children should not be allowed access to guns without full
supervision by responsible adults.”
In a case report “Air Gun – A Deadly Toy?” authored by F S Kuligod,
Prasanna S Jirli and Pradeep Kumar, Officers of the Department of
Forensic Medicine, K.L.E. Society's Jawaharlal Nehru Medical College,
Belgaum, Karnataka introduced airgun as under:
“Many people fantasize about handling guns. They try to
make it come true by playing with air guns (air rifles) at
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The air gun is a simple yet ingenious and effective weapon
based on fundamental mechanics. The gun primarily employs a
very stiff compression spring to transmit momentum to a light
pellet. Here, a very clever method of transmitting energy to the
pellet is used. It is not by collision but using the dynamics of
compressed air. Most modern air guns are inexpensive BB guns
(named for the size of the shot fired) (DiMaio, 1985). The best
of these employ about half the muzzle velocity of a light firearm,
are accurate enough for marksmanship training at ranges up to
40 metres and can cause serious injuries (Reddy, 2003)
An air rifle is distinguished from an air gun as the former
is a rifled weapon and the latter is a smooth bore. Air pistols
may be either rifled or smooth bore. The weight of an air
weapon pellet is concentrated in the head; with a hollow body.
Its centre of gravity is well forward from the mid point. Hence,
these slugs are not subject to the tendency of tumbling. This is
an important factor in a projectile of low energy contributing to
its capability to penetrate a target (Ravindra,1999).
There are three basic power systems for airpowered guns.
They are pneumatic type, spring air compression system, and
gas compression type (Di Maio, 1985). Death from an air
powered gun is rare. A review of English language literature
reveals only a few deaths. Most involved children (Green, 1982).
In most of the cases the point of entry was in the head.”
The authors after examining applicable mechanism design and use of air
guns concluded as follows:
depend on the type of air gun used, the range at which it is
fired, and the anatomical site at which the pellet hits. A fair
degree of comparison between injuries by hand guns and air
guns can be made by careful examination of the entry wound.
Lack of care, supervision and unstructured use are the risk
factors contributing to the incidence of fatal injury from air
guns. Even in developing countries proper laws should be
enforced regarding the sale and use of air guns.”
In an article “Analysis of glass fracture pattern made by .177” (4.5 mm)
caliber air rifle” authored by Abhimanyu Harshey, Ankit Srivastava, Vijay
Kumar Yadav, Kriti Nigam, Amit Kumar and Tanurup Das published in
Egyptian Journal of Forensic Sciences, the airgun is described as a small
arm that hurts projectiles by means of mechanically pressurizing air and
other means which involves no chemical reaction. All air weapons such
as rifle and pistol generally propel metallic projectile. These guns have
action mechanism, i.e., strong pistol pneumatic and compressed gas. The
authors concluded that the use of airguns in criminal activities is having
a rising trend and that is an alarm to the law enforcement agencies.
The literature referred above discloses that the airguns or the airpistols
or the other air pressure weapons which may cause serious bodily
injuries are not toys. In conclusion, the Experts also advised to have
effective norms may those by having statutory enactment for use of air
guns, airpistols or other air pressure weapons.
In the case of M/s Agarwal Brothers, Faizabad (supra), it was held that
airgun is a weapon in which compressed air is used for propelling a lead
pellet, the velocity of the pellet depends upon the air pressure released
from the compressor chamber of gun. Although most of the airgun are
not lethal, in the sense that projectiles fired through them is not capable
of killing human being, yet it is capable of inflicting bodily injuries. The
nature of airgun appears to have been taken by the Court in the case
aforesaid on basis of the mechanism applied in the airpistols and air
guns.
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While relying upon the judgment in the case of Commissioner of Sales
Tax, Uttar Pradesh Versus M/s Madan Sons, Dehradun reported in
1978 UPTC 676, the Court in this case also accepted that the word
“arms” means a weapon, which is capable of inflicting bodily injury. Air
guns being capable of doing so falls within the category of “arms”.
The Kerala High Court while dissenting the conclusion arrived in the case
of M/s Agarwal Brothers, Faizabad (supra) noticed that all implements
which can inflict injury cannot be characterized as arms.
The Court observed that in a taxing statute, the word must have to be
used according to its ordinary meaning in common parlance. According
to the popular sense and on going through the other material available,
the Court held that “arms” and “ammunition” will not take airguns and
pellets in its ambit.
The Madhya Pradesh High Court in Commissioner of Sales Tax, M.P.
Versus Pilababu Vishwanath Rao (supra) accepted the reasoning given
in the case of Deputy Commissioner of Sales Tax (Law), Board of
Revenue (Taxes) Versus K. Mohammed (supra).
“An air gun/ air rifle/ air pistols uses the energy or force
produced from compressed air or other gas for discharging of the
pellet or projectile. Normally these air guns, etc. use metal
projectiles and the ones which use plastic projectiles are Air
(soft) Guns. General internet search on air guns reveals that
these are distinguished from firearms, which burn a propellant
in order to shoot the projectile but under the definition of
firearms, as provided under the Act and as extracted above, it is
clear that the air guns/ air rifles/ air pistols are also covered,
for not only the arms which discharge projectile(s) by action of
any explosive are covered under the definition, but also arms
which use other forms of energy, in this case being the energy or
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force generated from compressed air or gas. Thus, it is safe to
conclude that air guns/air rifles/air pistols are not mere toys, as
against the assertion of the Respondents and they are very much
subject to the provisions of the Act, being firearms. ”
In Ravinder Versus State (NCT of Delhi) reported in 2016 SCC Online
Del 3575, a Single Bench of Delhi High Court while considering the
argument that an airgun is not a deadly weapon, thus, does not attract
Section 397 I.P.C., concluded that an airgun or airpistol uses energy
and force produced from compressed air or other gas for discharging of
the pellet or projectile and can cause hurt, as such, would fall within the
definition of a deadly weapon.
too which are deadly weapon and falls within the definition of “arms”
but there is no need to have license to possess those. It would also be
appropriate to state that several Experts have also opined to make it
mandatory to have a license for keeping airgun/pistol.
The Kerala High Court in Deputy Commissioner of Sales Tax (Law),
Board of Revenue (Taxes) Versus K. Mohammed (supra) did not
examine complete mechanism of the airgun and just on basis of its
capable use in popular sense held that though airgun can cause injury
but would not be an item covered under the entry “arms and
ammunition”.
Order Date : 1.3.2019/Shubham
(Saurabh Shyam Shamshery, J.) (Govind Mathur, C.J.)