R. M. Sahai, J. - The following question has been referred for the opinion of this court;
'Whether on the facts and in the circumstances of the case the assessee could be said to be dealer liable to tax in respect of the transaction in dispute ?'
2. In is not necessary to give the facts in detail as admittedly the assessee carried on business both on his own account as well as for commission. The Account Books were accepted. The assessee claimed to have acted merely as a broker regarding commission sales.
3. On remand, one of the partners was examined by the assessing authority. After considering his statement all the three authorities have held that the assessee was a dealer.
4. It has been urged by the counsel for the assessee that the authorities below have not appreciated the evidence of Sri Chetan Lal properly. He further contended that in any case from the facts found the assessee could not be considered to be a dealer. Reliance was placed on Commissioner of Sales tax vs. Vijaya Kumar Krishna Kumar, in which it was held that a broker who merely brings the buyer and the seller together but does not carry on the business of buying and selling goods on behalf of the principals would not be a dealer within the meaning of S. 2(c) of the U.P. Sales Tax Act. But the assessee did not challenge even in his application under S. 11(4) of the Act the findings of the authorities as to the manner in which he carried on his business. Hence we cannot go behind such finding of fact. What we have to examine in this reference is the correctness of the inference of law from those findings of fact.
5. The relevant portions of S. 2(c) which defines the word 'dealer, reads :
'Any person ............... carrying on the business of buying or selling goods ........ whether for commissioner, remuneration or otherwise ............
The relevant portions of S. 2(h) which defined Sales reads :........... any transfer of property in goods ....... -........
6. Under the Act every person whatever the name be, is treated as a dealer if sales as defined in the Act are effected by him
7. But what is exigible to tax is sale and sale take place only when there is a transfer of property in the goods. A mercantile agent shall therefore be dealer only if he has authority to transfer property in goods. In other words the agent should have authority not only to negotiate the sale but also to conclude it and transfer property in the goods to the purchaser. Whether an agent has authority to transfer title in goods will depend on fact of each case. The Sales Tax authorities considered the statement of the partner of the firm for which the assessee acted as a Commissioner agent. He has admitted that certain transactions were carried on by the assessee even in the absence of the cultivators. From a stray sentence in the statement that in other transactions be completed the sale with the permissions of seller, the counsel for the assessee wanted us to hold that the assessee was not a dealer. In such transactions whether the assessee merely settled the price and passed on the property in the goods to the purchasers with the consent of the cultivators, he may be said to have acted only as a commission agent not liable to tax under the provisions of the Act. It was, however, for the assessee to establish before the authorities, that he acted in the manner as suggested by him in particular transactions. But from the finding a recorded by the authorities it appears that his case was that he could not be treated as a dealer even in those cases where the property in the goods were passed on by him on his own to the purchasers in the absence of the cultivators. The preparation of cash memos without mentioning the name of the purchaser, passing of the title in the goods in the absence of cultivators, the responsibility for shortage giving advances to purchasers are circumstances which establish that the assessee was a dealer carrying on business on his own account.
8. For the reasons stated above we answer this reference in the affirmative, against the assessee and in favour of the Department by saying :
'That on the facts and in the circumstances of the case the assessee was a dealer liable to pay tax in respect of the transactions in dispute,'
9. In the circumstances of the case we direct the parties to bear their own costs.