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Bagalkot Cement Co., Limited Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberS.T.R.P. No. 18 of 1969
Judge
Reported in[1970]25STC520(Kar)
ActsCentral Sales Tax Act, 1956 - Sections 2, 6, 7, 8, 9 and 9(3)
AppellantBagalkot Cement Co., Limited
RespondentState of Mysore
Appellant AdvocateG.K. Govinda Bhat, Adv. for ;K. Srinivasan
Respondent AdvocateS.R. Rajasekharamurthy, High Court Government Pleader
Excerpt:
.....to lodge the complaint. on facts, held, the complainant is the sub-inspector of forest cell who is not the authorised person under section 55 of the act to lodge the complaint. hence, proceedings were quashed. - when the deputy commissioner has clearly found that the business of the company was not that of a broker and that the property in the goods was conveyed by the company to the purchasers, the tribunal without any basis was not right in accepting the facts stated in respect of a different assessment year......deputy commissioner found that the company was appointed by the state trading corporation as its selling agent and it has sold cement at the prices specified in the cement control order to the customers who held permits from the government authorities and that the customers have purchased the cement from the company directly and they were not even aware of the identity of the principal, namely, the state trading corporation. on the said facts, the deputy commissioner held that the company is a dealer carrying on the business of selling goods and as such liable to tax under the act. 2. the company preferred a second appeal to the sales tax appellate tribunal. before the tribunal also the same contention was urged. the tribunal held that the appellant carried on the business of selling.....
Judgment:
ORDER

Govinda Bhat, J.

1. This is a revision petition preferred by the assessee under section 23(1) of the Mysore Sales Tax Act, 1957, read with section 9(3) of the Central Sales Tax Act, 1956, as it stood before its amendment made in 1969. The assessee is the Bagalkot Cement Company Ltd., hereinafter called the company. The assessment relates to the assessment year 1961-62. During the said year, the turnover of cement in inter-State sales amounted to Rs. 1,11,02,243 on which the company was assessed to sales tax under the Central Sales Tax Act, 1956, hereinafter called the Act. The assessment was made on the basis of the return submitted by the company to the Commercial Tax Officer. The company preferred an appeal to the Deputy Commissioner of Commercial Taxes wherein it urged that the company is not liable to be assessed to tax under the Act since the sales were effected by the company as the agent of the State Trading Corporation. The Deputy Commissioner found that the company was appointed by the State Trading Corporation as its selling agent and it has sold cement at the prices specified in the Cement Control Order to the customers who held permits from the Government authorities and that the customers have purchased the cement from the company directly and they were not even aware of the identity of the principal, namely, the State Trading Corporation. On the said facts, the Deputy Commissioner held that the company is a dealer carrying on the business of selling goods and as such liable to tax under the Act.

2. The company preferred a second appeal to the Sales Tax Appellate Tribunal. Before the Tribunal also the same contention was urged. The Tribunal held that the appellant carried on the business of selling cement and therefore was a dealer liable to tax under the Act. The Tribunal further observed that the Act empowered the assessing authority to tax either the principal or the agent through whom the principal carried on the business. In the result, the Tribunal dismissed the company's appeal.

3. In this revision petition, Sri K. Srinivasan, the learned counsel for the petitioner advanced the same argument, viz., that a person who carries on the business of buying or selling goods as an agent of another person is not liable to be taxed under the Act. In support of the said contention, the learned counsel relied on the definition of the words 'dealer' and 'place of business' found in section 2(b) and 2(d) of the Act. The learned counsel also invited our attention to the definition of the word 'dealer' found in section 2(1)(k) of the Mysore Sales Tax Act, 1957, wherein the word 'dealer' has been defined to include a commission agent also.

4. In order to decide the question before us, it is necessary to set out the relevant provisions of the Act. The word 'dealer' has been defined in section 2 thus :

''Dealer' means any person who carries on the business of buying or selling goods, and includes a Government which carries on such business.'

The words 'place of business' have been defined as follows :

''Place of business' includes - in any case where a dealer carries on business through an agent (by whatever name called), the place of business of such agent.'

5. The word 'sale' found in section 2(g) of the Act has been defined to mean 'any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods an the hire-purchase or other system of payment by instalments, but does not include a mortgage or hypothecation of or a charge or pledge on goods.' The word 'turnover' has been defined to mean the 'aggregate of the sale prices received and receivable by him in respect of sales of any goods in the course of inter-State trade or commerce made during any prescribed period and determined in the prescribed manner.' Section 6 levies the charge to tax on all sales effected by a dealer in the course of inter-State trade or commerce. Section 7 provides for registration of dealers. The rate of tax is provided in section 8. Section 9 provides for levy and collection of tax.

6. The argument of the learned counsel for the petitioner was that the Act has not defined the word 'dealer' to include a commission agent and therefore the commission agent is not liable to be taxed as a dealer under the Act. The definition of the word 'dealer' found in the Act is similar to the definition of the same word in section 2(b) of the Madras General Sales Tax Act, 1939. A question arose before the Madras High Court as to whether a commission agent is a dealer under the Madras Act. In The Provincial Government of Madras v. Neeli Veerabhadrappa and Others ([1950] 1 S.T.C. 245), it was held that 'a commission agent who sells or buys on behalf of a principal is not a dealer within the meaning of section 2(b) of the Madras General Sales Tax Act, 1939, and is not liable to tax in respect of the purchases and sales effected by him on behalf of the principal at his instance and such a transaction does not constitute his turnover.' Referring to the definition of the word 'dealer' this is what Satyanarayana Rao, J., stated at page 256 :

'........ The definition of 'dealer' applies to a person who carries on the business of buying or selling goods. Prima facie it means a person who carries on business on his own account and buys or sells goods on his own account. That, in my opinion, is the primary meaning of the definition. It does not mean the business of the commission agent but refers to the business of buying or selling goods. When an agent buys or sells goods on behalf of a principal the business of buying or selling can only be the principal's business of buying or selling and the purchase of the same could only be on the principal's account. This cannot be treated as the purchase and sale of the agent on his own account.'

7. In view of the conflict of judicial opinion between different Benches in the High Court of Madras, the matter was referred to a Full Bench on the question whether a commission agent is a dealer within the meaning of that word under the Madras General Sales Tax Act. The decision of the Full Bench is reported in Kandula Radhakrishna Rao and Others v. The Province of Madras ([1952] 3 S.T.C. 121). The judgment of the Full Bench was delivered by Rajamannar, C.J. It was held by the Full Bench that the decision in Provincial Government of Madras v. Veerabhadrappa ([1950] 1 S.T.C. 245) was right on the facts found in the said case since the plaintiffs in the said case were mere brokers who brought the buyer and the seller together and they did not have the custody of the goods. This is what the learned Chief Justice observed at pages 131-132 :

'............. There can be no doubt whatever that the merchants in those cases do not fall within the definition of 'dealer. They themselves neither sold nor bought the goods. They simply brought the seller and the buyer together and received a brokerage or commission by way of remuneration for their trouble. It does not appear that the plaintiffs in those cases were entrusted with the possession or control of the goods or that they had authority to transfer the property or the title in the goods. They could not therefore have effected a sale as defined in section 2(h) of the Act.'

8. But in the case of a commission agent, it was held that 'the commission agent has control over or possession of the goods and he has the authority from the owner of the goods to pass the property in and title to the goods and if this is so, undoubtedly when a commission agent sells goods belonging to his principal with his authority and consent and without disclosing to the buyer the name of the owner, there is certainly a transfer of property in the goods from the commission agent to the buyer and that a business which consists in such transactions can properly be described as a business of selling goods.' It was further observed that 'neither the definition of dealer nor of sale contemplates as a necessary condition, that the goods sold should belong to the person selling or buying, and there can be a sale or purchase on behalf of another.' In the result, the opinion of the Full Bench was that if a commission agent is not a mere broker and has the custody of the goods and has the authority to transfer the property and title in the goods, he would be a dealer within the definition of the word 'dealer' where he transfers the property in the goods.

9. The decision of the Full Bench has been accepted as laying down the correct law and no decision has been brought to our notice which has taken a different view. The Deputy Commissioner has found as a fact that the company was appointed by the State Trading Corporation as its selling agent and has sold cement at the prices specified in the Cement Control Order to the customers who held permits from the Government authorities and that it is not the case of the company that it has acted just to bring the seller and the buyer customer together. The Tribunal, however, without giving any reasons for differing from the conclusion reached by the Deputy Commissioner, has accepted the facts as stated in the company's affidavit in Bagalkot Cement Company Ltd. v. State of Mysore (10 L.R. 613). This is what the Tribunal has stated :

'............ The appellant did not produce before the authorities below the agreement by which it is appointed as the selling agent of the State Trading Corporation or any other relevant papers pertaining thereto and in these circumstances we have set forth in the earlier paragraphs the facts relating to the agency agreement disclosed by the appellant's affidavit stated in 10 Law Reports, page 613, and Sri K. Srinivasan submits that the said facts relevant for the purpose of this appeal should be accepted and we agree with his submission.'

10. The case reported in Bagalkot Cement Company Ltd. v. State of Mysore (10 L.R. 613) related to a different assessment year, namely 1960-61, and the transactions were transactions of sale within the State of Mysore. When the Deputy Commissioner has clearly found that the business of the company was not that of a broker and that the property in the goods was conveyed by the company to the purchasers, the Tribunal without any basis was not right in accepting the facts stated in respect of a different assessment year. There are no materials on record to show that the facts as found by the Deputy Commissioner are incorrect.

11. Therefore the question is, whether on the facts found by the Deputy Commissioner, the Tribunal was in error in holding that the company is a dealer. In our opinion, the principles laid down by the Full Bench of the Madras High Court in Kandula Radhakrishna Rao and Others v. The Province of Madras ([1952] 3 S.T.C. 121), which we respectfully follow, can be invoked for deciding the question whether a commission agent who has possession of the goods and transfers the property in the goods to the buyers is a dealer within the definition of the word under the Act. A dealer is one who carries on the business of buying or selling goods. There is no reference in the definition to the ownership of the goods. The goods may be owned by the dealer or somebody else. If the person selling the goods is empowered or authorised to transfer the property in the goods, he sells the goods because the words 'sale of goods' mean any transfer of goods by one person to another for cash or for deferred payment. The commission agent sells the goods though not belonging to him, but his principal.

12. In the instant case, the relevant papers pertaining to the transactions were not placed before the authorities below. But it was fairly conceded by the learned counsel for the company that the invoices were issued by the company, that the company had possession or custody of the goods and the company was authorised to transfer the property in the goods to the purchasers. It was also conceded that the company was registered as a dealer under the Act and it collected sales tax from the purchasers. It is relevant to state that before the assessing authority the company did not contend that it was not a dealer. The company submitted its return and the tax was assessed and paid. On the facts found by the Deputy Commissioner, the petitioner was rightly held to be a dealer under the Act, and we see no reason to come to a different conclusion.

13. In the result, the revision petition fails, and is dismissed.

14. No costs.

15. Petition dismissed.


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