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Haji M. Kadar Mohammed Rowther and Company Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case Number T.R.C. No. 31 of 1965
Judge
Reported in[1967]20STC17(Ker)
AppellantHaji M. Kadar Mohammed Rowther and Company
RespondentState of Kerala
Appellant Advocate V. Rama Shenoi and; R. Raya Shenoi, Advs.
Respondent AdvocateGovernment Pleader
Excerpt:
- - that the tax is imposed on the sale and only on the sale to the ultimate consumer is accepted, and it is so clearly stated in the tribunal's order. 7. section 9 is an enabling provision by which the persons mentioned in that section, namely the commission agents and brokers and those who satisfy the conditions mentioned in the section, are exempted from the charge under section 3. this section can apply only in cases where a commission agent or an alleged commission agent or broker claims exemption by virtue of the provisions of section 9. assuming the provision of section 9 has not been satisfied, the agent himself may be liable to pay the tax and if the tax has been paid by the agent, the question is whether the principal can again be made liable for the same tax......the appellants can again be taxed and made liable to pay that, even if tax had already been paid by commission agents on the same turnover, the tribunal observed :-what we have to adjudicate is not whether the tax has been paid but whether the turnover is taxable at the hands of the appellant.5. we do not think that the approach made by the tribunal is correct. we will proceed for the purpose of this case on the admitted basis that there had been only one sale and that to the ultimate consumers. if in regard to these sales, tax had already been paid by the alleged commission agents the appellant certainly cannot be made liable to pay the tax, already paid, again. and if the commission agents had been assessed on the same turnover there cannot be a second assessment on the same.....
Judgment:

P. Govindan Nair, J.

1. The question raised in this Tax Revision Case is whether a certain part of the turnover of the petitioner, Rs. 97,052.43 is liable to be assessed at the hands of the petitioner and if it is so liable to be assessed he- should get exemption for the payment of tax to the extent to which tax has been paid on the same turnover by those who are said to be commission agents, effecting the sales on commission basis.

2. The facts are these: The petitioner claimed that he had been effecting sales through commission agents. A number of affidavits from such alleged commission agents were produced before the taxing authorities. To take one of these affidavits as an example, it is stated therein that:

I have included in the turnover submitted by me for sales tax for the year 1961-1962 the sum of Rs. 6,105.66 (Rupees six thousand and one hundred and five np. sixty-six only) being the sales effected by me as commission agent of M/s. Hajee M. Kader Mohammed Rowther & Co.

3. It is said that the whole of this turnover of Rs. 97,052.43 represented such sales effected by various commission agents, that they had included this turnover in the returns which they had submitted and that they had collected tax from the buyers of the goods and has paid over those taxes to the State.

4. Whatever be the view that the Sales Tax Officer and the Appellate Assistant Commissioner took in this matter, the Tribunal proceeded on the basis that even if tax has been paid on the same turnover, the appellant could again be taxed and made liable to pay tax. That the tax is imposed on the sale and only on the sale to the ultimate consumer is accepted, and it is so clearly stated in the Tribunal's order. To use the words of the Tribunal, ' the turnover taxed and in dispute is the turnover on sales to ultimate buyers.' And in regard to the question as to whether the appellants can again be taxed and made liable to pay that, even if tax had already been paid by commission agents on the same turnover, the Tribunal observed :-

What we have to adjudicate is not whether the tax has been paid but whether the turnover is taxable at the hands of the appellant.

5. We do not think that the approach made by the Tribunal is correct. We will proceed for the purpose of this case on the admitted basis that there had been only one sale and that to the ultimate consumers. If in regard to these sales, tax had already been paid by the alleged commission agents the appellant certainly cannot be made liable to pay the tax, already paid, again. And if the commission agents had been assessed on the same turnover there cannot be a second assessment on the same turnover. These questions have not been investigated mainly because of the assumptions made by the Tribunal that the question of any assessment on the alleged commission agents or the payments by them of the tax in regard to the same transactions are immaterial or irrelevant. We do not think so.

6. Though it has been urged throughout the proceedings that the claim is one for exemption, this does not appear to be really so. If there is only one transaction or one series of transactions, namely, the sales to the ultimate consumers there can only be one taxation on these transactions and the claim is that that tax has been paid and that tax having been paid, the appellants should be exonerated from any further liability regarding those transactions.

7. Section 9 is an enabling provision by which the persons mentioned in that section, namely the commission agents and brokers and those who satisfy the conditions mentioned in the section, are exempted from the charge under Section 3. This section can apply only in cases where a commission agent or an alleged commission agent or broker claims exemption by virtue of the provisions of Section 9. Assuming the provision of Section 9 has not been satisfied, the agent himself may be liable to pay the tax and if the tax has been paid by the agent, the question is whether the principal can again be made liable for the same tax. The answer must be that he cannot be.

8. In the light of the above, we set aside the order of the Tribunal and direct that the following two questions be investigated and findings entered and appropriate orders passed :

(a) Whether there have been any assessments on the alleged commission agents in relation to the turnover of Rs. 97,052.43 or any part of it ;

(b) If there are no assessments whether there have been any payment of tax in relation to the turnover of Rs. 97,052.43.

And if so, the extent of such payments If there have been assessments to the full extent or part of it, to that extent, there will be no assessments made on the principal, i.e., the petitioner before us. If there have been no assessments made, there can be an assessment to the full extent on the petitioner but he can be made liable only for the tax less, that, if any, that have been paid by the commission agents.

9. This Tax Revision Case is disposed of as above. There will be no order regarding costs.


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