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Radhakishan Agrawal Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberM.C.C. No. 130 of 1981
Judge
Reported in[1983]54STC118(MP)
AppellantRadhakishan Agrawal
RespondentCommissioner of Sales Tax
Appellant AdvocateG.M. Chaphekar and ;S.N. Hingore, Advs.
Respondent AdvocateS.R. Joshi, Government Adv.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....of the case, the tribunal was justified in arriving at the decision that there was no sale of the stone metal (gitti) by govindram hanuman prasad to the assessee and consequently, the amount of rs. 7,930 paid by the assessee to govindram hanuman prasad was not the price of the stone metal (gitti) but was in the form of a royalty ?2. the material facts giving rise to this reference briefly stated are as follows: the assessee, m/s. radhakishan agrawal, carries on business of the supply of stone metal (gitti). the assessee was assessed to sales tax under section 18(6) of the act for the turnover between 11th august, 1965 and 31st january, 1967. the sales tax officer determined the taxable turnover of the assessee at rs. 67,069. the contention of the assessee was that he purchased the stone.....
Judgment:

R.K. Vijayvargiya, J.

1. By this reference under Section 44 of the Madhya Pradesh General Sales Tax Act (hereinafter referred to as 'the Act') the Board of Revenue, Madhya Pradesh, Gwalior, on a direction made by this Court has referred the following question of the law for the opinion of this Court :

Whether, on the facts and in the circumstances of the case, the Tribunal was justified in arriving at the decision that there was no sale of the stone metal (gitti) by Govindram Hanuman Prasad to the assessee and consequently, the amount of Rs. 7,930 paid by the assessee to Govindram Hanuman Prasad was not the price of the stone metal (gitti) but was in the form of a royalty ?

2. The material facts giving rise to this reference briefly stated are as follows: The assessee, M/s. Radhakishan Agrawal, carries on business of the supply of stone metal (gitti). The assessee was assessed to sales tax under Section 18(6) of the Act for the turnover between 11th August, 1965 and 31st January, 1967. The Sales Tax Officer determined the taxable turnover of the assessee at Rs. 67,069. The contention of the assessee was that he purchased the stone metal (gitti) from a registered dealer, M/s. Govindram Hanuman Prasad and therefore, the price paid by him to the registered dealer should be deducted under Section 2(r)(ii) of the Act. The assessing authority held that the stone metal (gitti) was not purchased by the assessee from M/s. Govindram Hanuman Prasad but the assessee was granted a right to quarry the stone metal (gitti) by Govindram Hanuman Prasad on payment of royalty. The deduction claimed by the assessee was, therefore, disallowed. The appellate authority and the Board of Revenue in second appeal upheld the order of the assessing authority. The Board of Revenue also dismissed the application submitted by the assessee for referring the question of law arising out of the order of the Tribunal. Thereafter on an application being made by' the assessee this Court directed the Tribunal to refer the question of law arising out of the order of the Tribunal. Hence the Tribunal has referred the aforesaid question of law for the opinion of this Court.

3. Having heard the learned counsel for the assessee and for the department we have come to the conclusion that the question referred to us deserves to be answered in favour of the assessee.

4. It is not disputed that Govindram Hanuman Prasad is a registered dealer under the Act. It is also not in dispute that the assessee obtained the stone metal (gitti) from Govindram Hanuman Prasad by paying him a sum of Rs. 7,930. The Tribunal held that it was not a sale of stone metal (gitti) by Govindram Hanuman Prasad to the assessee because the assessee did not pay the price but paid royalty for the goods taken delivery of by the. assessee from quarries. The Tribunal has referred to a letter addressed by Govindram Hanuman Prasad to the assessee in which it was stated that Rs. 10,000 were received by the former from the latter and that stone metal (gitti) may be lifted by the assessee from the quarry of Govindram Hanuman Prasad. The Tribunal discarded this letter observing that this letter cannot be treated as an agreement of sale or contract between the parties. The view taken by the Tribunal cannot be sustained in law.

5. It is not disputed that the quarries from which the stone metal (gitti) was taken delivery of by the assessee were taken on lease from the Government by Govindram Hanuman Prasad. The assessee paid a sum of Rs. 10,000 to Govindram Hanuman Prasad as a consideration for the transfer of title to the stone metal (gitti) from Govindram Hanuman Prasad to the assessee. The assessee was also required to pay royalty on behalf of Govindram Hanuman Prasad. In the circumstances the property in goods which belonged to Govindram Hanuman Prasad passed on to the assessee for consideration and the transaction between the two parties was a transaction of sale and nothing else.

6. It is not disputed that if the assessee purchased the stone metal (gitti) supplied by him to the railway from Govindram Hanuman Prasad who is a registered dealer the price paid by him has to be excluded from the taxable turnover as defined by Section 2(r)(ii) of the Act.

7. We are, therefore, of the opinion that on the facts and in the circumstances of the case the Tribunal was not justified in arriving at the decision that there was no sale of the stone metal (gitti) by Govindram Hanuman Prasad to the assessee and consequently, the amount of Rs. 7,930 paid by the assessee to Govindram Hanuman Prasad was not the price of the stone metal (gitti) but was in the form of a royalty.

8. Our answer to the question referred to us, therefore, is in the negative and in favour of the assessee. In the circumstances the parties shall bear their own costs of this reference.


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