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Associated Cement Companies Ltd. Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
CourtSales Tax Tribunal STT Mumbai
Decided On
Judge
Reported in19567STC373Tribunal
AppellantAssociated Cement Companies Ltd.
RespondentThe State of Bombay
Excerpt:
.....entitled to add local taxes and sales tax to the controlled price. mr.mehta has contended that the sale price should not be held to include the town duty, and he has relied on a decision of the andhra high court in the state of andhra v. shree bujranga jute mills ltd. [1955] 6 s.t.c. 376, in support of his contention. the said high court no doubt decided that sales tax collected by a dealer from the customers cannot be included in his net turnover, and that it is not liable to be taxed again ; but the view taken by this tribunal on this question is to the contrary effect in the case of gwalior industries v. commissioner of sales tax [1948] 1 s.t.d. 23. it was there held that the sales tax which the purchaser had to pay to the dealer was part of the consideration of sale and that the true.....
Judgment:
1. The only point argued in this case was whether the authorities below were justified in adding to the sale price the town duty paid by them on the goods at the time of their import into the city of Bombay. The price of cement in which they deal is fixed at the controlled rate of Rs. 89-8-0 per ton and in their bills the applicants charged sales tax at 1/2 anna per rupee on the said price plus town duty at one rupee per ton. It has been admitted that under the Control Order, the company was entitled to add local taxes and sales tax to the controlled price. Mr.

Mehta has contended that the sale price should not be held to include the town duty, and he has relied on a decision of the Andhra High Court in The State of Andhra v. Shree Bujranga Jute Mills Ltd. [1955] 6 S.T.C. 376, in support of his contention. The said High Court no doubt decided that sales tax collected by a dealer from the customers cannot be included in his net turnover, and that it is not liable to be taxed again ; but the view taken by this Tribunal on this question is to the contrary effect in the case of Gwalior Industries v. Commissioner of Sales Tax [1948] 1 S.T.D. 23. It was there held that the sales tax which the purchaser had to pay to the dealer was part of the consideration of sale and that the true test for determining whether any particular item forms part of the sale price or not is whether the dealer will part with the article unless the purchaser pays it. In Kaniram Jankidas v. The State of Bihar A.I.R. 1953 Pat. 10, it was held, "Any amount charged or realised by a dealer as valuable consideration for the supply of goods would come under the definition of the 'sale price' for the goods, Chough the dealer may himself choose to split up the amount and distribute it in the receipt under different heads. The valuable consideration, which moves from the purchaser to the dealer for the purchase of the goods,' is the lump amount which he actually pays to the dealer in consideration of the goods sold to him ; and except for the deductions permissible under the law, the whole of that amount can in law be regarded as -the sale price for the goods.

The aggregate amount of sale prices so received by the dealer during the taxable period would constitute his gross turnover during the accounting period". In Sri Sunderarajan and Co. Ltd. v. The State of Madras [1956] 7 S.T.C. 105, the Madras High Court approved of the decision of the Calcutta High Court in Bata Shoe Co. v. Board of Revenue, West Bengal [1948] 1 S.T.C. 193, that it was permissible to include in the taxable turnover of a dealer amounts collected by him by way of sales tax. That case was referred to by the Madras High Court in Deputy Commissioner of Commercial Taxes v. Krishnaswami Mudaliar [1954] 5 S.T.C. 88. The Madras High Court also approved of the observations made in two English cases. In Paprika Ltd. v. Board of Trade [1944] 1 All E.R. 372, Lawrence, J., observed: "Wherever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands, but it does not cease to be the price which the buyer has to pay even if the price is expressed as X plus purchase tax". In Love v. Norman Wright (Builders) Ltd. [1944] 1 All E.R. 618, Goddard, L.J., observed: "Where an article is taxed, whether by purchase tax, customs duty or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration, though, made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer ; if the buyer agrees to the price it is not for him to consider how it is made up, or whether the seller has included the tax or not ".

These decisions sufficiently show that the view taken by the authorities below is correct. The application is, therefore, dismissed.


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