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Shanker Lal Kedar Nath Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. No. 277 of 1981
Judge
Reported in[1983]53STC382(All)
AppellantShanker Lal Kedar Nath
RespondentCommissioner of Sales Tax
DispositionPetition allowed
Cases ReferredHimatsingka Timber Co. Ltd. v. State of Orissa
Excerpt:
- - it further found that as the assessee had furnished declaration in form iii-c(1) it was clearly liable to pay purchase tax under section 3-d(2) on oil-seed and food-grains and under section 3-aaaa for purchases made of mahua flower. this principle has now been well-settled that a purchase made for the purposes of export is not the same as purchase made in the course of inter-state trade or commerce......is whether the assessee was entitled to exemption as these purchases were in the course of inter-state trade and commerce. the claim of the assessee was repelled by the tribunal and the decision given in commissioner of sales tax v. hanuman trading company 1979 uptc 809 was distinguished because there was no agreement of purchase and sale between the assessee and its ex-u. p. principals. it was further held that an agent cannot make any sale or purchase to his principal. therefore, when purchases were made by the assessee on behalf of its ex-u.p. principals it was purchased or sold in its own capacity. reliance was placed on panna lal babu lal [1956] 7 stc 722. it was also held that once a registered dealer undertakes to carry out his obligation to constituents outside the state.....
Judgment:

R.M. Sahai, J.

1. On the undisputed facts that certain purchases were made by the assessee as commission agent of ex-U.P. principals the question is whether the assessee was entitled to exemption as these purchases were in the course of inter-State trade and commerce. The claim of the assessee was repelled by the Tribunal and the decision given in Commissioner of Sales Tax v. Hanuman Trading Company 1979 UPTC 809 was distinguished because there was no agreement of purchase and sale between the assessee and its ex-U. P. principals. It was further held that an agent cannot make any sale or purchase to his principal. Therefore, when purchases were made by the assessee on behalf of its ex-U.P. principals it was purchased or sold in its own capacity. Reliance was placed on Panna Lal Babu Lal [1956] 7 STC 722. It was also held that once a registered dealer undertakes to carry out his obligation to constituents outside the State such purchases made by such dealer are in the course of inter-State trade or commerce. Reliance for this was placed on Himatsingka Timber Co. Ltd. v. State of Orissa [1966] 18 STC 236 (SC). The Tribunal found that as the assessee had purchased oil-seed and foodgrain from registered dealers without disclosing to them the name of its ex-U.P. principal, it shall be deemed that the purchases made by the assessee were to discharge obligations entered between the assessee and its constituents outside the State and the case was covered by the above noted decision. It further found that as the assessee had furnished declaration in form III-C(1) it was clearly liable to pay purchase tax under Section 3-D(2) on oil-seed and food-grains and under Section 3-AAAA for purchases made of mahua flower.

2. The Tribunal appears to have completely misunderstood the decision given by this Court in Hanuman Trading Company's case 1979 UPTC 809. In that decision, even in absence of purchase orders on inference of agreement between principal and agent for purchasing on its behalf giving rise to inter-State sale was held from the supply of the goods on commission.

3. In effect where it is established that certain goods had moved out of State in pursuance of an order placed by ex-U. P. principals through the commission agency then the commission agent is not liable to pay any tax under Section 3-D, as such purchases shall be deemed to be purchases in the course of inter-State trade by ex-U. P. principals. In the case of the assessee also it was not disputed by any of the authorities that purchases were made by ex-U. P. principal although in the local market it was the assessee who acting as an agent of ex-U. P. principals made purchases on their behalf. In such circumstances the principle laid down in Hanuman Trading Company's case 1979 UPTC 809 was squarely applicable.

4. The reasoning of the Tribunal based on certain decisions appears to suffer from fallacy. The first decision relied upon by it was Panna Lal Babu Lal's case [1956] 7 STC 722 In that decision it was held that a commission agent does not sell goods to its principal. There can hardly be any dispute that it is settled that commission agent is nothing but an extended hand of a principal. Any transaction which he carries on behalf of the principal he is not a purchaser or seller. He gets commission for certain obligations which he undertakes to perform on behalf of his principal. To infer from this that as a commission agent cannot sell the goods to the principal the purchases made by him in the local market on instructions from ex-U. P. principal amounts to sale or purchase in its own capacity cannot be appreciated. Such is not the law. If an agent has purchased on behalf of ex-U. P. principal then it is his purchase. It cannot be deemed to be the purchase of the assessee only because to carry out its obligation of ex-U. P. principal the assessee purchased it locally. Similarly the decision in Himatsingka Timber Company's case [1966] 18 STC 235 (SC) was wholly inapplicable. In that case it was laid down that if a registered dealer makes purchases to carry out his obligations to constituents outside the State it does not make such purchases in the course of inter-State trade or commerce. This principle has now been well-settled that a purchase made for the purposes of export is not the same as purchase made in the course of inter-State trade or commerce. The purchases made by registered dealer for fulfilling the obligation to its principal may not be inter-State sale but a commission agent cannot act in any capacity except as a person acting on behalf of principal and the purchases made by him are in fact purchases of ex-U. P. principal. Such purchases cannot be considered to be for the purposes of inter-State sale, but in the course of inter-State sale. In fact the movement of goods out of State arose as a result of agreement entered between principal and the seller through the assessee's agency. The movement of goods in pursuance of such an agreement is obviously a movement which is covered by Section 3 of the Central Sales Tax Act.

5. As regards form III-C(1) there can be no doubt that it furnishes evidence that the assessee has purchased it. But that alone is not sufficient. If the transaction carries the impress of being in the course of inter-State trade and commerce then it does not cease to be so merely by the act of the assessee of filing these forms. It was never disputed by the department that these were commission agent's purchases. Once this is not disputed then the admission of the assessee by furnishing of these forms is not detrimental in any manner from the real nature of the form that it was in the course of inter-State trade and commerce.

6. In the result the revision succeeds and is allowed. The question of law is decided by saying that purchases of foodgrain, oil-seeds and mahuct flower in the assessment year 1974-75 on commission agency were in the course of inter-State trade and commerce, and therefore, no tax could be levied under Section 3-D or under Section 3-AAAA of the Act. A copy of this judgment shall be sent to the Tribunal to take action under Section 11(8) of the Act. The assessee shall be entitled to Rs. 300 as costs.


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