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Vimalchand Prakashchand Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Civil Case No. 158 of 1967
Judge
Reported in1968MPLJ665; [1968]22STC22(MP)
AppellantVimalchand Prakashchand
RespondentCommissioner of Sales Tax
Appellant Advocate C.M. Mehta and ; V.S. Pandit, Advs.
Respondent Advocate K.K. Dube, Government Adv.
Cases ReferredAssam v. Prabhat Marketing Co. Ltd.
Excerpt:
- - it was also negatived in first appeal by the deputy commissioner of sales tax, indore, as well as by the sales tax tribunal in second appeal......dalali, bank commission, charity and insurance incurred by the assessee can be included in the sale price and be taxed at the hands of the assessee ?(2) whether in the facts and the circumstances of the case an inference can be drawn that an implied contract existed for the sale of packing materials, i.e., bardana and iron hoops, along with pressed cotton bales and the estimated price of the bardana could be included in the taxable turnover of the assessee holding that there was a sale of bardana ?2. the assessee is a dealer in cotton. during the period from 1st april, 1959, to 31st october, 1959, it sold, in the course of inter-state trade, compressed cotton in bales covered with hessian cloth and fastened with iron hoops. in the turnover of these inter-state sale transactions, the.....
Judgment:

P.V. Dixit, C.J.

1. In this reference under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, read with Section 9 of the Central Sales Tax Act, 1956, at the instance of the assessee, M/s. Vimalchand Prakashchand, Sarafa, Ujjain, the questions propounded by the Sales Tax Tribunal for our decision are-

(1) Whether in the facts and the circumstances of this case charges in respect of adat, dalali, bank commission, charity and insurance incurred by the assessee can be included in the sale price and be taxed at the hands of the assessee ?

(2) Whether in the facts and the circumstances of the case an inference can be drawn that an implied contract existed for the sale of packing materials, i.e., bardana and iron hoops, along with pressed cotton bales and the estimated price of the bardana could be included in the taxable turnover of the assessee holding that there was a sale of bardana ?

2. The assessee is a dealer in cotton. During the period from 1st April, 1959, to 31st October, 1959, it sold, in the course of inter-State trade, compressed cotton in bales covered with hessian cloth and fastened with iron hoops. In the turnover of these inter-State sale transactions, the assessing officer included in the turnover taxable under the Central Sales Tax Act, 1956, amounts received by the assessee from the purchasers by way of Central sales tax, adat, dalali, bank commission, charity and insurance. The total amount thus included in the turnover was Rs. 19,514.74. The assessee's contention that the said amounts should not have been included in the turnover of inter-State sales was rejected by the assessing officer. It was also negatived in first appeal by the Deputy Commissioner of Sales Tax, Indore, as well as by the Sales Tax Tribunal in second appeal.

3. The assessee also contended that there was no sale by it to the purchasers of hessian and iron hoops when it sold to them compressed cotton in bales covered with hessian and fastened with iron hoops; and that, therefore, the estimated price of the hessian cloth and iron hoops should have been excluded from the taxable turnover. This objection of the assessee was also disallowed by the assessing officer and by the appellate authorities.

4. The material provisions of the Central Sales Tax Act to consider in this case are clauses (h) and (j) of Section 2 of that Act. Clause (j), which gives the definition of 'turnover', is as follows :

' turnover' used in relation to any dealer liable to tax under this Act means the aggregate of 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.

Sale price' has been defined in Clause (h) of Section 2, which is as follows :-

'sale price' means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged.

It is plain from these definitions that any amount received by a dealer as consideration for the sale of any goods has to be included in the turnover of the dealer. In the statement of the case, the facts have not been fully stated. But on the facts found by the Deputy Commissioner of Sales Tax in first appeal, which were affirmed in second appeal by the Tribunal, it becomes abundantly clear that what the assessee received from the purchasers on account of adat, dalali, bank commission, charity and insurance was a part of the price paid by the purchasers of cotton. Before the Deputy Commissioner of Sales Tax, the assessee admitted that he added to the purchase price dalali, adat and other charges, and realised the aggregate of such amounts from the buyers. Thus the payment of the amounts on account of adat, dalali, bank commission, charity and insurance must be regarded as part of the consideration for the sales. The burden of proving that these charges did not form any part of the consideration for the sales of cotton was on the assessee. But it led no evidence whatsoever to show that these charges were not included in the price and that it could not refuse to perform the contract for the sale of cotton if the purchasers refused to pay charges on account of adat, dalali, bank commission, charity and insurance. In our opinion, on the facts found by the Tribunal, the amount of charges in regard to adat, dalali, bank commission, charity and insurance received by the assessee was rightly included in the sale price and consequently in the turnover of the assessee.

5. Learned counsel for the assessee drew our attention to the decision of the Nagpur High Court in Nemkumar Kesrimal v. Commissioner of Sales Tax, M.P. [1955] 6 S.T.C. 222, where it was held that dharmada realised by the assessee could not be included in the sale price, inasmuch as it was a willing charge paid by the buyer in addition to the valuable consideration for the transfer of property and not a charge for anything done by the dealer in respect of the goods at the time of or before delivery thereof. This case is distinguishable on facts as in that case it was found that dharmada was separately charged and not included in the price. It may be that the assessee recovered dharmada or amount towards charity with the intention of appropriating it to those objects. But so far as the purchaser is concerned, the whole amount was paid by him for purchasing cotton and in consideration thereof. There is nothing to show that what the purchaser paid for charity was a willing payment, over and above the contract price for the sale of cotton. The first question must, therefore, be answered in the affirmative.

6. In regard to the second question, the facts are that the assessee contracted with the purchasers for sale of cotton in the form of compressed cotton in bales covered with hessian cloth and fastened with iron hoops. The property in the hessian cloth and iron hoops passed to the purchasers and the assessee charged the purchasers a composite price for the corn-pressed cotton and packing materials. These facts were admitted by the assessee before the Deputy Commissioner of Sales Tax, and not disputed before the Tribunal also. On these facts, the principle laid down by a Full Bench of this Court in Nimar Cotton Press v. Sales Tax Officer [1961] 12 S.T.C. 313, applies, and it must be held that there was an implied contract of sale of hessian cloth and iron hoops. The Full Bench has pointed out that even in the absence of an express agreement for the sale of packing material as such there would be a sale of the material in a contract of pressing cotton and delivery of compressed cotton in bales covered with hessian cloth and fastened with iron hoops for a consolidated charge of pressing and packing ; for in such a contract it is implicit that there would be a sale of the packing material and the parties are impliedly ad idem on the passing of the property in the material qua material and the addition of its price to the pressing charges. The same principle has been reiterated by this Court in The Nimar Cotton Press Factory, Khandwa v. The Commissioner of Sales Tax M.C.C. No. 86 of 1966 decided on the 9th August, 1967 . On the principles laid down in these two cases, there cannot be any doubt that as the property in the packing material vested in the purchasers on payment of a consolidated price and the vesting was not accession, then it was only under an implied contract of sale of the material.

7. It must be noted that in Chidambara Nadar Sons & Co. v. State of Madras [1960] 11 S.T.C. 321, the Madras High Court held that where there is an agreement to purchase cotton to be delivered by the seller to the buyer, it is implicit in the contract that the goods should be delivered as packed ; and that in such a case a contract to pay for and purchase the packing materials can be implied and the turnover relating to the packing materials would be liable to sales tax. This decision of the Madras High Court was approved by the Supreme Court in Government of Andhra Pradesh v. Guntur Tobaccos Ltd. [1965] 16 S.T.C. 240. While noting the decision of the Madras High Court, the Supreme Court observed (at page 250)-

The sale price of packing material employed for effecting sale of cotton was held to be liable to sales tax by the Madras High Court in Chidambara Nadar Sons & Co. v. State of Madras [1960] 11 S.T.C. 321. The learned Judges in the aforesaid case rightly held that whether the commodity conserved in the container is sold or not, the transaction involved a contract of sale of the packing material.

If, as we think, there was an implied contract for the sale of packing material, then the mere fact that the price of the packing material was not separately fixed makes no difference to the assessment of sales tax. This is clear from the decision of the Supreme Court in Commissioner of Taxes, Assam v. Prabhat Marketing Co. Ltd. [1967] 19 S.T.C. 84. In that case, the Supreme Court has also said that the question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case. Our answer to the second question also is in the affirmative.

8. For these reasons, both the questions referred to us for decision are answered in the affirmative. The assessee shall pay costs of this reference. Counsel's fee is fixed at Rs. 150.


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