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Lt. Governor (Administration), Union Territory of Delhi Vs. Tulsi Bhai Gordhan Bhai - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtDelhi High Court
Decided On
Case NumberSales Tax Reference No. 1 of 1967
Judge
Reported in[1974]33STC103(Delhi)
AppellantLt. Governor (Administration), Union Territory of Delhi
RespondentTulsi Bhai Gordhan Bhai
Appellant Advocate R.P. Bansal, Adv
Respondent Advocate R.C. Chawla, Adv.
Cases Referred and Ors. v. Indian Wood Products Co. Ltd.
Excerpt:
.....concerning the manner in which the sales have been effected. although the said documents have not been made part of the statement of the case, it has been conceded on both sides that there is no necessity to get a further statement of the case and it is sufficient to note that the sales were effected by the goods being consigned to self to the destination stations where the dealers resided, and further transfers were effected by the documents relating to the goods being endorsed in favor of those dealers. this contention is not well-founded......on the facts and in the circumstances of the case the sales have been rightly held as inter-state sales within the meaning of section 3(b) of the central sales tax act2. the reference was initially made in the form of an application and thereafter another application under section 151 of the code of civil procedure was moved by the assessed praying that a proper statement of the case should be drawn up. this was so ordered by an order of a bench of this court dated 7th september, 1971, passed in civil miscellaneous no. 1064 of 1971. in compliance with this direction, a statement of the case has been submitted by the lt. governor of delhi.3. according to the facts stated in the statement of the case, the assessed carries on business as manufacturer and seller of tobacco and bidis.....
Judgment:

D.K. KAPUR, J.

1. On a petition by M/s, Tulsi Bhai Gordhan Bhai (hereinafter referred to as the assessed), the Circuit Bench of the Punjab High Court at Delhi directed a reference to be made per orders dated 26th May, 1965, concerning the following question of law:

Whether on the facts and in the circumstances of the case the sales have been rightly held as inter-State sales within the meaning of Section 3(b) of the Central Sales Tax Act

2. The reference was initially made in the form of an application and thereafter another application under Section 151 of the Code of Civil Procedure was moved by the assessed praying that a proper statement of the case should be drawn up. This was so ordered by an order of a Bench of this Court dated 7th September, 1971, passed in Civil Miscellaneous No. 1064 of 1971. In compliance with this direction, a statement of the case has been submitted by the Lt. Governor of Delhi.

3. According to the facts stated in the statement of the case, the assessed carries on business as manufacturer and seller of tobacco and bidis with its head office at Delhi and branches at various places including Rewari which was in the State of Punjab during the relevant period 1st July, 1957, to 13th December, 1957. The function of this branch was that it maintained its own books of account in respect of the business carried on by it; it used to procure orders for supply and sale of bidis to various dealers at various places within the State of Punjab; the said branch also issued instructions to its head office in Delhi to dispatch goods either to Rewari or to various dealers at various places in the State of Punjab on its behalf. The Rewari branch made out the bills whereas the head office debited the amount to the account of the Rewari branch and did not maintain separate accounts of the individual dealers in their account books at Delhi. The contention of the assessed before the Assessing Authority was that the dispatches of goods made by them on the instructions of the Rewari branch were made either to that branch or to various dealers in the State of Punjab on behalf of the Rewari branch and were, thereforee, mere transfers to that branch and not inter-State sales taxable under the provisions of the Central Sales Tax Act, 1956. The Sales Tax Officer accepted this contention with regard to the actual transfers made to the Rewari branch but concluded that the dispatches made directly by the assessed to the various dealers in the State of Punjab on behalf of the Rewari branch were inter-State sales and taxable as such. The assessed appealed to the Assistant Commissioner of Sales Tax unsuccessfully. A further revision to the Commissioner of Sales Tax was also unsuccessful. Thereafter, the assessed filed a further petition to the then Chief Commissioner, Delhi, who dismissed the petition and confirmed the orders. Copies of the orders passed by these various authorities have been annexed to the statement of the case.

4. The statement of the case shows that in furtherance of sales effected by the Rewari branch of the assessed, goods were sent from Delhi to various purchasers in the State of Punjab and on these facts there would be very little difficulty in holding that the sales occasioned movement of goods from one State to another within the meaning of Section 3(a) of the Central Sales Tax Act, 1956. However, the question referred to us is concerned with Section 3(b) of the Act. Both the counsel for the assessed as well as the counsel for the Commissioner of Sales Tax agree that there is a factual error in the statement concerning the manner in which the sales have been effected. Both agree that the facts have been rightly stated in the orders of the Sales Tax Officer and the orders of the Commissioner of Sales Tax which are annexed to the statement of the case. Although the said documents have not been made part of the statement of the case, it has been conceded on both sides that there is no necessity to get a further statement of the case and it is sufficient to note that the sales were effected by the goods being consigned to self to the destination stations where the dealers resided, and further transfers were effected by the documents relating to the goods being endorsed in favor of those dealers. In other words, the goods were sold by transfer of documents and not by direct sale and, hence, the question of law which has been referred rightly arises under Section 3(b) of the Central Sales Tax Act, 1956. That provision reads as under:

3. A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase....

(b) is effected by a transfer of documents of title to the goods during their movement from one State to another.

Explanation 1. -- Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee....

5. The first Explanationn to the section reproduced above shows that the goods are deemed to be in the course of movement during the period they are with the carrier, from the point of time at which they are delivered to the carrier to the point of time at which delivery is taken. In other words, if the goods are transferred by endorsement of documents during the period the goods are with the railways, the sale will be deemed to be an inter-State sale. Now, in the present case, on the facts which have been admitted by both sides, the goods were transferred by sending the same through the railways from Delhi to the stations where the various dealers in the State of Punjab had their places of business. The goods were consigned to self and were taken delivery of after the purchasers had obtained transfer of documents of title relating to the goods within the meaning of Section 3(b) of the Act. Hence, there is no difficulty at all in coming to the conclusion that these are inter-State sales within the meaning of Section 3(b). This conclusion would have been sufficient to answer the question referred except for the fact that counsel for the assessed has raised a somewhat different point for our consideration.

6. It is contended on behalf of the assessed that the appropriate State for the purpose of taxing the sales is the State of Punjab and not the Union Territory of Delhi. For this purpose, reference has been made to Section 2(a)(ii) of the Central Sales Tax Act, 1956, which states that the 'appropriate State' in relation to a dealer who has places of business situate in different States, will be the State with respect to the place or places of business situate within its territory. Thus, the Sales Tax Officer competent to impose Central sales tax in relation to sales effected by the Rewari branch of the assessed is the Sales Tax Officer at Rewari, whereas for the sales effected by the Delhi branch, i. e., the assessed, it is the Sales Tax Officer at Delhi. It is contended that these sales were effected by the branch of the assessed at Rewari and, thereforee, the appropriate State for the purpose of collecting the sales tax was the Sales Tax Officer at Rewari and not the Sales Tax Officer at Delhi. Although, it is difficult to bring this contention within the scope of the question actually referred, we have heard the counsel for both sides on this question and have been referred to a number of cases.

7. The Supreme Court had occasion to deal with this matter in Tata Iron and Steel Co. Ltd., Bombay v. S.R. Sarkar and Ors. : [1961]1SCR379 . It is unnecessary to reproduce the various questions dealt with in that judgment because there has been a retrospective amendment of Section 9 of the Central Sales Tax Act, 1956, which has somewhat altered the position since then. It is necessary, however, to note that it was held that in order to determine the place where the sale or purchase of goods had taken place, recourse had to be taken to Section 4(2) of the Act. That provision reads as follows:

A sale or purchase of goods shall be deemed to take place inside a State if the goods are within the State --

(a) in the case of specific or ascertained goods, at the time the contract of sale is made; and

(b) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation.

8. In the actual case before the Supreme Court, the Sales Tax Officer had not made a determination as to which was the State and a direction to that effect was issued.

9. When the matter was dealt with by the Supreme Court, the wording of Section 9 of the Act was quite different, but the retrospective amendment of that section has brought the present Section 9(1) into operation. The relevant portion of the section is the substantive part of Section 9(1), which, reads as follows:

The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter-State trade or commerce, whether such sales fall within clause (a) or clause (b) of Section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of Sub-section (2), in the State from which the movement of the goods commenced.

10. This provision plainly shows that the collection of sales tax has to be effected by the Government of India in the State from which the movement of the goods commenced. As we have already concluded that this is an inter-State sale by reason of the fact that the transfer of documents of title took place during the movement of the goods, it also follows that we have to determine the State in which the tax is to be collected by determining the State from which the movement of the goods commenced. That is plainly Delhi. Hence, there is no doubt that under the present law, the inter-State sales in question have to be taxed by the Sales Tax Officer at Delhi and not the Sales Tax Officer at Rewari.

11. Mr. Bansal, on behalf of the assessed, contended that in fact sales tax could not be collected from the assessed at all, because the sales were effected by the Rewari branch of the assessed-firm. His contention is that for the purposes of the Sales Tax Act the assessed at Delhi and the assessed's branch at Rewari have to be treated as separate persons. This contention is not well-founded. The provisions of Section 2(a)(ii) of the Act plainly state that if there is a dealer who has more than one place of business, the appropriate State will be the State in which the place or places of business are situate. This means that the assessed may have to deal with different States for the purposes of assessments made in relation to its Delhi head office and its branch at Rewari. It does not, however, mean that the assessed has developed a multiple personality because the noteworthy words in the provision are: 'a dealer'. The word 'dealer' is singular, and the assessed whether at Delhi or at Rewari is one and the same. Hence, whether the sales are effected by the assessed through its head office at Delhi or its branch at Rewari, the assessed is one and the same. In either case the Sales Tax Officer having authority to collect the tax is the one in the State from which the movement of the goods commences. Thus, the assessed is rightly assessable for inter-State sales made in the present case, whether those sales have been effected by the Rewari branch or by the head office at Delhi, by the Sales Tax Officer at Delhi.

12. The counsel for the Commissioner of Sales Tax has also referred to the decisions in Indian Wood Products Co. Ltd. v. Sales Tax Officer, Ward No. 13, New Delhi, and Ors. [1968] 21 S.T.C. 437, and Sales Tax Officer, Ward No. 13, New Delhi, and Ors. v. Indian Wood Products Co. Ltd. [1972] 30 S.T.C. 132, in support of his contention and has also based his arguments on the unamended Section 9. It is unnecessary to deal with the unamended Section 9, because of the retrospective amendment of Section 9, which was made in 1969. The judgment of this court in Sales Tax Officer, Ward No. 13, New Delhi, and Ors. v. Indian Wood Products Co. Ltd. [1972] 30 S.T.C. 132, is fully applicable to the present case. In that case, certain inter-State sales were taxed in U.P. and also taxed by the officer in Delhi. The Bench held that the sales could only be taxed once under the Central Sales Tax Act, 1956, and, that too, in the State from which the movement of the goods commenced. A similar position exists in the present case. In fact, if the Sales Tax Officer at Rewari had taxed the assessed on the ground that the sales were effected through that branch, that officer would be acting without authority because of the wording of Section 9(1) as held in the authority referred to above. It, thereforee, follows that the Sales Tax Officer at Delhi was the officer competent to collect the sales tax from the assessed.

13. The result would be that the answer to the question referred would be in the affirmative in favor of the Commissioner of Sales Tax and against the assessed. The Commissioner would be entitled to his costs. Counsel's fee Rs. 250.


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