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Co-operative Marketing Society Ltd. Vs. Commissioner, Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Sales Tax Reference Nos. 375 and 376 of 1970
Judge
Reported in[1972]29STC619(All)
AppellantCo-operative Marketing Society Ltd.
RespondentCommissioner, Sales Tax
Appellant Advocate R.R. Agrawal and ; Bhartji Agarwal, Advs.
Respondent Advocate Standing Counsel
Cases ReferredMadurai v. A. Anantharama Nadar
Excerpt:
- - regarding the other argument it would suffice to say that after amendment of the definition of 'dealer' in 1961 to include even persons 'through' whom sales take place in any form or capacity the assessee is clearly included in the definition of a 'dealer'.the very object of the society is to dispose of the members' produce profitably. kharidaraon sey bhuktan kabhi usi din milta hey, kabhi bad men. the turnover acquired by the agent in the circumstances mentioned above is in law as well as in fact his own turnover for the purposes of sales tax assessment, and it cannot be considered as the principal's turnover......produce grown by the agriculturist-members of the assessee is liable to be included in the assessee's turnover 2. the relevant assessment years are 1962-63 and 1963-64. in these years, the assessee carried on some business of its own. the assessee has paid tax on the turnover of its business. the dispute in the reference is in respect of the turnover of sale of agricultural produce belonging to the members of the assessee.3. the case of the assessee before the sales tax authorities was that it was not a dealer in respect of those sales. it contended that it was a mere taula (weigh-man). the assessing authority did not accept this case. he found that it was acting as a commission agent and was merely a dealer within the meaning of the explanation to section 2(c) of the u. p. sales.....
Judgment:

S.N. Dwivedi, J.

1. These are two references under Section 11 (3) of the U.P. Sales Tax Act at the instance of the assessee, the Co-operative Marketing Society Limited, Kalpi. At its instance, this court directed the Judge (Revisions) to refer to this court along with the statement of the case these two questions:

(1) Whether on the facts found, the assessee could be deemed to be a dealer as defined by the U. P. Sales Tax Act in relation to the transactions of its agriculturist-members ?

(2) Whether on the facts and circumstances of the case, the sale of agricultural produce grown by the agriculturist-members of the assessee is liable to be included in the assessee's turnover

2. The relevant assessment years are 1962-63 and 1963-64. In these years, the assessee carried on some business of its own. The assessee has paid tax on the turnover of its business. The dispute in the reference is in respect of the turnover of sale of agricultural produce belonging to the members of the assessee.

3. The case of the assessee before the sales tax authorities was that it was not a dealer in respect of those sales. It contended that it was a mere taula (weigh-man). The assessing authority did not accept this case. He found that it was acting as a commission agent and was merely a dealer within the meaning of the explanation to Section 2(c) of the U. P. Sales Tax Act. The finding of the assessing authority was affirmed in appeal and revision.

4. The alternative case of the assessee before the assessing authority was that the agricultural produce of its members should be deemed to be its own agricultural produce. If it is so regarded, then the assessee will be exempt from being taxed on the sale of agricultural produce. This contention was accepted.

5. On the first contention, the assessing authority recorded this finding:

Members of the Samiti, its agents, settled the rates with the buyers and then its taulas weighed the goods. The Samiti issued parchas kashtkar to the seller and parchalewal to the buyers. It charges arhat or commission at 0-0-3 per rupee besides palledari, thela, bhara, dharmada, etc. Payment from buyers were generally not received on the date of purchase; so the Samiti paid the price of goods to the seller from its own fund. In case goods were not sold within the same day, it stocked the same in its godowns and advanced about 60 per cent, to 75 per cent. of the price of the pledged goods. The advance payment together with interest and godown charges was recovered from the sale proceeds of the goods. These facts prove that the Samiti worked as a selling commission agent on behalf of its members-cultivators.

6. The appellate authority recorded this finding :

It has been found that the appellant was settling the rates with the buyers and with the consent of the sellers the goods were weighed by the palledar employed by the society. It issued parcha kashtkar to the sellers and parchalewal to the buyers. It paid the prices of the goods of the sellers. Admittedly, the buyers generally paid the price after a few days. In case the goods were not sold on the same date they were also stocked. In my opinion, the above ingredients were quite sufficient to hold the appellant to be a dealer under the amended definition of Section 2(c) of the Act....

7. The revising authority said this:

Regarding the other argument it would suffice to say that after amendment of the definition of 'dealer' in 1961 to include even persons 'through' whom sales take place in any form or capacity the assessee is clearly included in the definition of a 'dealer'. The very object of the society is to dispose of the members' produce profitably. A limited company will not be constituted for doing the act of a labourer only. The work of a taula is that of a labourer only, that of weighing goods accurately. I find no force in this argument either.

8. Sri Raja Ram Agrawal, counsel for the applicant, has strenuously urged before us that on the facts found by the appellate authority, the assessee is not a dealer within the meaning of the explanation to Section 2(c) of the U.P. Sales Tax Act. It is said that the explanation assumes that persons who sell should have authority to conclude the bargain on behalf of the principal. If he has not given them the authority to conclude the bargain on his behalf, the explanation to Section 2(c) of the Act will not apply. It may be noted that the revising authority did not record any specific finding of fact on the point. The assessing authority and the appellate authority have recorded a finding, but the appellate authority has found that with the consent of the sellers the goods were weighed by the palledar employed by the society.' Sri Raja Ram Agrawal submits that it shows that the goods could not be sold without the consent of the seller. In view of this ambiguity in the appellate order, we directed the Judge (Revisions) to submit a supplementary statement of the case. We also directed him that he should incorporate in the supplementary statement of the case primary facts which would show whether the assessee had the authority to conclude the bargain on behalf of the sellers or on behalf of both buyers and sellers. The revising authority has now submitted a supplementary statement of the case.

9. In the supplementary statement of the case, the revising authority has quoted a passage from the statement of Sri R. S. Verma, Secretary of the assessee, who was examined before the assessing authority. The material portion from the passage is set out here:

Commission pranalli par jo bikri ki gai us ke kashtkar se Rs. 1-9-0 saikara commission liya. Iske alawa palledari, chungi, dharmada liya. Lewal ko dharmada kharcha dana para. Ussey kuch milta nahin hey. Kashtkar ke mal ko bhao sarniti ka dala tay karta hay. Bhao tay honey par society ke palledar mal taultey hen. Kharidaraon sey bhuktan kabhi usi din milta hey, kabhi bad men. Lekin kashtkaon ko bhakktan samiti key fund sey usi din kar diya jata hai. Jo mal bandha rakh diya jata us par 60 per cent. sey 75 per cent. tak advance dey diya jata hey.

10. It will appear from the statement of Sri Verma that the assessee charges commission from its agriculturist-members in respect of the sales of their produce on commission basis. It also charges palledari, chungi and dharmada. Palledari is charged for weighing the foodgrains. Over and above the weighing dues (palledari), the assessee charges commission. It shows that the assessee acts as commission agent besides also acting as weigh-man. Again, Sri Verma has specifically stated that the rate is settled by the assessee's broker. In other words, the bargain is struck by the assessee. So, it follows that the assessee has got the authority to strike the bargain on behalf of the seller. Sri Verma has further stated that immediately after the bargain is struck, the weigh-man of the assessee weighs the goods. In the passage extracted in the supplementary statement of the case from bis statement, we find no mention of the fact that the goods are weighed with the consent of the seller. It seems to us that the appellate authority has wrongly mentioned that fact in his order.

11. On the statement of Sri Verma, there is little doubt that the assessee falls within the explanation to Section 2(c) of the U.P. Sales Tax Act, for it sells the goods of its agriculturist-members on the strength of the authority given to it by the principal to conclude the bargain on his behalf.

12. Coming to the second question, the argument of Sri Raja Ram Agrawal is that on the principle of identification of the agent with the principal, the turnover of sale of agricultural produce grown by the agriculturist-members of the assessee should be excluded from the assessee's turnover. The principle on which Sri Raja Ram Agrawal relies is not an inflexible rule.

13. It has got certain exceptions. Sometime an exception is created by statute. So in each case, it is necessary to examine the material provision of law. In this case, we are concerned with the definition of the word 'turnover' in Section 2(i) of the U.P. Sales Tax Act. The definition is thus:

'turnover' means the aggregate amount for which goods are supplied or distributed by way of sale...by a dealer, either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration:

Provided that the proceeds of the sale by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise...shall be excluded from his turnover.

14. Section 3 charges tax on the turnover of sale by a dealer. The definition of 'turnover' refers to the 'dealer'. We think that the words 'person', 'by himself' and 'his turnover' in the proviso refer to the dealer.

15. The effect of the proviso is to exempt tax on the sale of agricultural produce. The exemption, however, is not unconditional. It is conditioned in two ways. When the agricultural produce is produced by the dealer himself, no tax shall be assessed on the sale of such produce by him. Secondly, when the agricultural produce which is sold by the dealer is grown on land in which he has an interest, either as owner, usufructuary mortgagee, tenant or otherwise, no tax shall be levied on him. Now, it is not disputed that in these cases the agricultural produce which was sold was not grown by the assessee. It was grown by the members of the assessee So the first part of the proviso is not applicable to the assessee. It cannot get the benefit of the second part of the proviso. It is neither an owner nor usufructuary mortgagee nor tenant of the land on which the sold agricultural produce was grown. This much is admitted. But it is submitted that this case is covered by the word 'otherwise' in the second part of the proviso. We think that the word 'otherwise' should be construed as ejusdem generis with the preceding words 'owner', 'usufructuary mortgagee' and 'tenant'. In order to fall within the word 'otherwise' the seller should have some possessory interest in the land, though the interest may fall short of that of an owner, usufructuary mortgagee and tenant. For instance, a rent free grantee under the U.P. Tenancy Act or a guzeredar will be included in the word 'otherwise'. The word 'otherwise' cannot be given an unlimited operation, for in that event, it would include a simple mortgagee also. As the Legislature has specifically mentioned the usufructuary mortgagee in the proviso, it seems to us that the simple mortgagee is not intended to be benefited by the proviso.

16. Sri Raja Ram Agrawal has relied upon Murray and Company v. The Government of Madras [1970] 25 S.T.C. 323. In that case, the auctioneer was sought to be assessed with sales tax on goods sold by him by public auction. In that case, two learned Judges of the Madras High Court said :

His argument that the liabilities of a principal and his agent in tax laws are co-extensive, is unexceptionable.

17. They reiterated:

As already stated, the liability of an agent is no doubt co-extensive with the principal. It would, therefore, follow that if the principal is not liable to tax, the agent also may not be liable thereto. This depends upon the proof and establishment as a fact that the principal is not a dealer within the meaning of the Act or even that the principal is not liable to tax under certain special provisions of the Act.

18. The decision of the case was, however, against the assessee for he could not show that the principal was not a dealer or that he was not liable to tax under any provision of the Madras Sales Tax Act. J. Moosa & Sons v. Commercial Tax Officer, 1st Circle, Hyderabad, and Anr. [1969] 23 S.T.C. 133 makes the same general observation.

19. The earlier decision of the Madras High Court in The State of Madras v. Tiruchengode Co-operative Marketing Society Ltd. [1965] 16 S.T.C. 760 was not placed before the learned Judges. In the said decision, another Division Bench of the of the Madras High Court said :

An agent with dominion over the goods of the principal and with authority to transfer the property in such goods and consequently effect sales and acquire a turnover in respect of such transactions cannot be treated on the same footing as the agent of a non-resident principal assessed under Section 14A. The turnover acquired by the agent in the circumstances mentioned above is in law as well as in fact his own turnover for the purposes of sales tax assessment, and it cannot be considered as the principal's turnover.

20. The provision which they were construing there is similar to the provision before us. This decision supports the view that we are taking. In Deputy Commissioner of Commercial Taxes, Madurai Division, Madurai v. A. Anantharama Nadar & Sons [1970] 25 S.T.C. 276 a Division Bench referred the matter to a Full Bench. The Full Bench was asked to consider whether the sale of agricultural produce by an agent of the principal who has grown the said produce will be liable to tax. The Full Bench answered the question in the affirmative. It was required to answer the question on the basis of the definition of the word 'turnover' in Section 2(r) of the Madras Sales Tax Act. Section 2(r) is similar to Section 2(i) (including the proviso) of our Act. This decision also supports our view.

21. In the result, our answer to the two referred questions are in the affirmative. The Commissioner of Sales Tax shall get costs which we assess at Rs. 100. There shall be a single set of costs.


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