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Webbs Sales and Service (P.) Ltd. Vs. Commissioner of Commercial Taxes, Bangalore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberS.T.A. Nos. 1, 2 and 3 of 1968
Judge
Reported in[1969]24STC84(Kar)
ActsMysore Sales Tax Rules - Rule 6(1) and 6(4); Mysore Sales Tax Act - Sections 22-A
AppellantWebbs Sales and Service (P.) Ltd.
RespondentCommissioner of Commercial Taxes, Bangalore
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateG.V. Shantharaju, Adv. for E.S. Venkataramaiah, High Court Special Government Pleader
Excerpt:
.....liability. it is to be noticed that the 10% tax liability may not even be the entire profit of the dealer and such levy of penalty while therefore becomes an oppressive levy being confiscatory of a percentage of the tax liability, partakes the character of a levy of tax on income, as the penalty has to be inevitably borne by the dealer and cannot be passed on to the consumer/buyer and therefore travels beyond the legislative competency of the state legislature, as enabled under entry 54 of list-ii of the 7th schedule to the constitution of india. the levy of penalty being a disproportionately high penalty, failing the test of reasonable restrictions saved under article 19(6) of the constitution of india vis-a-vis article 19(1)(g). - (ii) charges for packing and delivery and other such..........by him, is of course deductible under clause (f) of rule 6(4). if the dealer agrees to sell to the customer goods of a particular description and these goods have to be purchased by the dealer from the manufacturer so that there could be an implementation of that agreement to sell, and the customer who agreed to purchase these goods consents to pay the freight which the dealer has to incur for bringing the goods from the place of manufacture to the place where the purchaser wants them to be delivered, there could be very little doubt that the freight incurred by the dealer in that situation falls wholly within clause (f)(i) of rule 6(4). 10. mr. srinivasan, however, asked us to say that the claim to a deduction under the provisions of that clause is not restricted only to cases where the.....
Judgment:

Somnath Iyer, J.

1. The appellant is a private company which engages itself in the sale of motor trucks manufactured by the manufacturer at Jamshedpur. Under the terms of the agreement between the manufacturer and the appellant, the appellant could make sales of these trucks only within the State of Mysore and the then State of Coorg.

2. In respect of the assessment years 1957-58 and 1958-59, the appellant claimed the deduction of freight charges under clause (i) of rule 6(4)(f) of the Mysore Sales Tax Rules. That deduction which was disallowed by the Commercial Tax Officer was allowed by the Deputy Commissioner in appeal but again disallowed by the Commissioner of Commercial Taxes in the exercise of his revisional power bestowed on him by section 22-A of the Mysore Sales Tax Act. These three appeals are directed against the orders made by the Commissioner in that way.

3. It is undisputed that under the terms of the agreement entered into between the appellant and the manufacturer, it is the duty of the appellant to purchase the trucks from the manufacturer and to take delivery of these trucks at the place of manufacture, namely Jamshedpur. It is equally undisputed that in respect of the sale transactions, the price payable in respect of which constituted the turnover disclosed by the appellant, the purchases of the trucks were made by the appellant only after an order had been placed by the customer for the sale of the truck to him by the appellant. It is also not controverted that in the invoices prepared by the appellant with respect to the sales which were made pursuant to such order, the retail price fixed by the manufacturer was shown separately and that the freight incurred by the appellant for bringing the truck from the place of manufacture to Bangalore where he carries on his business was also shown separately and that the aggregate was the amount paid by the customer to the appellant.

4. So, it is clear that the appellant purchased the trucks from the manufacturer at Jamshedpur on payment of the price payable by him to the manufacturer under the terms which the agreement between them incorporate and that after having become the owner of the vehicle in that way, the appellant brought that vehicle to Bangalore in order to sell it to the customer.

5. The freight which was specified and charged separately in the invoices prepared by the appellant in respect of the sale to the customer was what was disallowed by the Commercial Tax Officer but allowed by the Deputy Commissioner.

6. The Commissioner was however of the view that what was properly deductible under rule 6(4)(f)(i) of the Mysore Sales Tax Rules was what could be described as the 'outward freight' and that the expenditure incurred by the appellant to bring the trucks from Jamshedpur to Bangalore was what could be described as the 'inward freight' and not deductible. The question with which we are concerned in these three appeals is whether this view taken by the Commissioner could be sustained.

7. Now, rule 6 of the Mysore Sales Tax Rules provides for the determination of the total and taxable turnovers. Sub-rule(1)(b) of that rule says that the total amount paid or payable to the dealer as the consideration for the sale is the total turnover of the dealer for the purposes of the Act. But, sub-rule (4) enumerates the deductions to be made from that total turnover and clause (f) of that sub-rule, with which we are concerned in these appeals, reads :

(4) In determining the taxable turnover, the amount specified in clauses (a) to (k) shall, subject to the conditions specified therein, be deducted from the total turnover as determined under clauses (a) and (b) of sub-rule (1).

* * * * (f) all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold :

(i) freight;

(ii) charges for packing and delivery and other such like services.'

8. It is common ground that in the invoice prepared by the appellant, the freight of which it sought a deduction was specified and charged for by the appellant separately without including it in the price of the goods sold. But, the Commissioner was of the view that the freight to which this invoice refers is the freight which constitutes the expenditure incurred by the dealer for the transportation of the goods sold from the place where he carries on his business to the place where he delivers them to the customer and that the expenditure incurred at antecedent stages before the goods are brought into the premises of the dealer and before they are sold by the dealer to the customer falls outside the provisions of that clause.

9. We cannot subscribe to any such inflexible proposition, The freight to which clause (f) refers is the freight which has been paid by the dealer in the context of a sale which he has agreed to mate to the customer. So, the freight paid by the dealer in order to bring the goods from any place to any other plea after he has agreed to make the goods to the customer so that he could deliver these goods to the customer at the point specified by him, is of course deductible under clause (f) of rule 6(4). If the dealer agrees to sell to the customer goods of a particular description and these goods have to be purchased by the dealer from the manufacturer so that there could be an implementation of that agreement to sell, and the customer who agreed to purchase these goods consents to pay the freight which the dealer has to incur for bringing the goods from the place of manufacture to the place where the purchaser wants them to be delivered, there could be very little doubt that the freight incurred by the dealer in that situation falls wholly within clause (f)(i) of rule 6(4).

10. Mr. Srinivasan, however, asked us to say that the claim to a deduction under the provisions of that clause is not restricted only to cases where the dealer pays the freight after he enters into an agreement to sell the goods to a customer and that the freight paid by the dealer in order to bring the goods from the place of manufacture to his own place of business, whether they are brought for the performance of an agreement or a contract into which he has entered with a customer or no is always deductible so long as they are specified and charged for separately and that there is no justification in restricting the operation of that clause to cases where the freight is incurred for the purposes of bringing the goods from the place of manufacture in implementation of an agreement of sale.

11. With that larger question, we are not concerned in these cases, and so, we abstain from expressing any opinion on the validity of the postulate placed before us by Mr. Srinivasan. That question has to be decided only in a case in which it properly arises, and, in these cases, it does not.

12. But, it is however clear that in the cases before us in which the appellant brought the trucks from Jamshedpur to Bangalore after he had entered into an agreement for the sale of those trucks to his customers, the freight was paid by him for purposes of the sale which he had agreed to make to his customer, and so, that freight could not be included in the taxable turnover.

13. Whether or not the freight paid in any other contingency is properly within clause (f)(i) of rule 6(4),it is plain that the freight paid for purposes of a sale, is not taxable turnover.

14. So, we allow these appeals and set aside the order made by the Commissioner of Commercial Texas and restore that made by the Deputy Commissioner.

15. The appellant will get his costs.

16. Advocate's fee Rs. 100 one set.


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