P.V. Dixit, C.J.
1. This petition under Article 226 of the Constitution of India is for the issue of a writ of certiorari to quash the petitioner's assessment to sales tax for the period from 1st October, 1955, to 31st March, 1958, under the C.P. and Berar Sales Tax Act, 1947, as extended to Vindhya Pradesh.
2. The material facts are as follows: The petitioner is doing the business of purchase and sale of cement at Satna. During the assessment year 1955-56 his turnover of the sale of cement was Rs. 20,979-14-3 and the total sales tax payable by him was Rs. 642-8-3. After deducting the amount of tax already paid by him at the time of the purchase of the cement, viz., Rs. 533-1-9, the balance which remained due from him was Rs. 109-6-6. The difference between the sales tax paid at the time of the purchase of cement and the tax payable after its sale was due to the addition by the petitioner of transport charges to the sale price. Similarly, in the next two years the extra amount of sales tax which remained due from the petitioner was Rs. 306-1-9 for the assessment year 1956-57 and Rs. 302.89 nP. for the year 1957-58.
3. The assessment is challenged first on the ground that the trans-port charges ought not to have been included in the taxable turnover of the petitioner. Secondly, it was contended that the petitioner had made an application in the year 1950 to get himself registered as a dealer under the Act, but he was not registered until 13th November, 1957 and, therefore, he could not, because of the prohibition contained in Section 8(2) of the Act as extended to Vindhya Pradesh, recover the amount of sales tax from the consumer and consequently he was not liable to pay additional sales tax assessed on him.
4. Both these contentions must, in our opinion, fail. Under Section 4 of the Act every dealer whose turnover exceeds the taxable quantum is liable to pay tax in accordance with the provisions of the Act. The definition of the word 'turnover' is given in Section 2(j) of the Act. It is as follows :-
'Turnover' means the aggregate of the amounts of sale prices and parts of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of the sale or supply of goods in the carrying out of any contract, effected or made during the prescribed period; and the expression 'taxable turnover' means that part of a dealer's turnover during such period which remains after deducting therefrom- * * *
According to this definition, everything received or receivable by a dealer in respect of the sale is included in the turnover and the tax is assessed on the taxable turnover after deducting therefrom the permissible deductions mentioned in Clause (j). The definition of 'sale price' is given in Section 2(h), the material portion of which is as follows :-
'Sale price' means the amount payable to a dealer as valuable consideration for-
(i) the sale of any goods, less any sum allowed as cash discount according to ordinary trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof other than the cost of freight or delivery or the cost of installation when such cost is separately charged; * * *
This definition makes it clear that if the transport charges have not been separately charged to the consumer, then they become a part of the sale price. If, on the other hand, they are separately charged, then the taxing authority cannot include the charges in the taxable turnover of the assessee.
5. Now the question whether the transport charges were or were not separately charged is a question of fact. It is not clear from the rocord whether the petitioner made any attempt to satisfy the taxing authority on the question that the transport charges were separately charged by him to the consumer. If he did make such an attempt and the taxing authority rejected his contention, then he should have appealed to the competent authority against that finding; but the petitioner never filed any appeal urging that the transport charges should not have been included in his taxable turnover. He cannot, therefore, now contest in these proceedings the basic finding that the cost of transport was not separately charged. It is on this basis that the taxing authority included the sums charged on account of transport in the petitioner's taxable turnover.
6. The other contention of the petitioner must also be rejected. It proceeds on the assumption that the legal liability for the payment of sales tax is on the consumer and not on the dealer, who is only an agent of the Government for the collection of the tax. There is no warrant for such an assumption. Under Section 4 of the Act, which is the charging section, it is the dealer who is liable to pay the tax. The dealer is required to submit the returns of the turnover. Under Section 12(4) the tax is payable by the dealer. Sub-section (5) of Section 12 lays down that if a dealer defaults in the payment of the tax, the amount of the tax shall be recoverable from him as arrears of land revenue. The Act prescribes a penalty for failure to furnish the returns of turnover within the time allowed and for failure to pay the tax within the prescribed time. These provisions make it plain that the dealer and not the purchaser is liable to pay the tax and that the dealer is not an agent of the Government for the collection of the tax. The dealer may himself bear the burden of the tax or may pass it on to the purchaser by including it in the sale price or by collecting it separately in addition to the sale price. The petitioner bases himself solely on Section 8-B of the Act which says :-
Realisation of sales tax only by registered dealers.-(1) No dealer, who is not registered under Section 8, shall realise from the purchaser any tax as such on sale of goods:
Provided that nothing in this sub-section shall apply to any sale of goods made by the Government of Vindhya Pradesh.(2) Where any dealer collects sales tax in contravention of Sub-section (1) or in excess of the amount payable under the provisions of this Act, the amount so collected shall, without any prejudice to the prosecution that may be started against him for an offence under this Act be deposited by him in the prescribed manner within one month from the date of such collection. * * *
This is only an enabling provision and not one casting an obligation on the dealer to pass on the amount of the tax to the consumer and realise it from him. What the provision does is only to enable the dealer to recover the amount of the tax from the consumer, provided the dealer is registered under the Act. No penalty is prescribed by the Act for the failure of the dealer to recover the amount of the tax from the purchaser. From what has been stated above, it is plain that the dealer is liable to pay the amount of the sales tax whether or not he realises it from the customer. It is the dealer who is liable to pay the tax and his liability is founded on Section 4 of the Act. It does not depend on the dealer's ability to recover the tax from the customer or his willingness to do so.
7. In this view of the matter, it is not necessary to consider whether the time taken by the opponent in registering the petitioner as a dealer under the Act was due to the petitioner's own default or was due to the inaction of the opponent. It must be noted that the cement which the petitioner sold was a controlled commodity subject to price control. Under the law of price control governing it, the amount of the sales tax could not be recovered by the petitioner from the purchaser. The question, therefore, of the petitioner sustaining any loss on account of the delay in his registration under the Act and his consequential disability to recover the amount of the sales tax from the purchaser does not arise.
8. In consequence, this petition is dismissed with costs. Counsel's fee is fixed at Rs. 75. The outstanding amount of the security deposit shall be refunded to the petitioner.