C.S.P. Singh, J.
1. The petitioner is a partnership firm and acts as a Government auctioneer in respect of articles auctioned by the Director-General of Supplies and Disposals, Government of India. The terms and conditions on which the petitioner acts as an auctioneer are embodied in the agreement entered into between the petitioner and the Government of India. These terms and conditions have been quoted in extenso in paragraph 1 of the petition. Condition No. 1 enjoins on the petitioner to conduct the auction personally or by one of the permanent staff, unless sanction is obtained in writing from the Director-General for someone else to conduct it. The auctions held are to be supervised by the Director-General or his representative, who decided whether to accept or reject the highest bid. Condition No. 1 of the agreement further states that the auctioneer will act only as an agent to secure the most advantageous bid and has to act in accordance with the decision of the representative of the Director-General so far as the acceptance or rejection of the bids is concerned. Condition No. 4 enjoins upon the auctioneer-petitioner to collect 25 per cent. of the bid money. Condition No. 2(a) permits the auctioneer to require the bidders to deposit not less than 25 per cent. of the bid money as earnest money on the fall of hammer and gives the auctioneer discretion to demand a higher amount of earnest money, but in doing so, he has to act in accordance with any direction given by the officer supervising his sale. The bidders at the auction have to deposit earnest money in the name of the Director-General in a bank and the balance amount in the case of successful bidders is also deposited in the account of the Director-General. The goods remain always under the control and supervision of the Director-General of Disposals and the petitioner only gets a certain amount of commission for conducting the sales. The petitioner got himself registered as a dealer during the assessment year 1969-70 and also filed returns. Thereafter, for the first quarter ending 30th June, 1970, the petitioner did not file any return and thereupon the Sales Tax Officer, Sector I, Allahabad, respondent No. 2, passed an ex parte assessment order computing the turnover of the petitioner as Rs. 40,00,000 and sent demand notices. The petitioner filed an appeal before the Assistant Commissioner (Judicial), Sales Tax, Allahabad, on the 19th September, 1970 and the matter is said to be pending before that authority. Subsequently, the petitioner filed the present petition challenging the assessment made by the Sales Tax Officer. During the pendency of the present petition, final assessment orders were made in respect of the assessment years 1969-70 and 1970-71 and the petitioner thereafter moved an amendment application challenging these orders as also the demand notices for the aforesaid years. The amendment application was allowed and the petitioner by this petition now challenged the assessment orders for the years 1969-70 and 1970-71 and also the demand notices for the aforesaid years (annexures 4, 5, 6 and 7 to the amendment application). The Sales Tax Officer has included the amounts for which the petitioner sold the goods of the Government of India at the auction in the turnover of the assessee treating him to be a dealer in respect of the goods sold by him at the auction sale.
2. Counsel for the petitioner has contended that the Sales Tax Officer committed a patent error of law in taking the view that the petitioner was a dealer in respect of the auction sales and has, in this context, referred us to a decision of this court in the case of Malt and Co. v. Commissioner, Sales Tax, U. P., Lucknow  26 S.T.C. 455. The facts of the case of Mali and Co.  26 S.T.C. 455 are closely similar to the facts in the present case and counsel for the respondents has not been able to point out any fact which would distinguish the decision given in Mak and Co.  26 S.T.C. 455 from the facts as have been found in the present case. Following the principles laid down in that case, it must be held that the petitioner is not a dealer in respect of the goods sold by it at the auction. The petitioner as such cannot be assessed to tax in respect of the turnover represented by the auction money collected at the auction.
3. The petition is accordingly allowed. The assessment orders passed by respondent No. 2 in respect of the years 1969-70 and 1970-71 (annexure 5 to the petition) and the demand notices dated 30th November, 1971 (annexure 6 to the petition) are quashed. The petitioner is entitled to its costs.