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K.K. Venkatachalam Chettiar Company Vs. the State of Madras - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 155 of 1954
Judge
Reported in[1957]8STC271(Mad)
AppellantK.K. Venkatachalam Chettiar Company
RespondentThe State of Madras
Appellant AdvocateS. Swaminathan, Adv.
Respondent AdvocateThe Assistant Government Pleader
DispositionAppeal allowed
Cases ReferredP. Vaidyanatha Iyer v. State of Madras
Excerpt:
- .....8 s.t.c. 268 before me and i held that the position of the plaintiff therein who was a consignee retail dealer was not that of a dealer and he cannot come within the meaning of a dealer as defined in the act and that, therefore, he would not be liable to pay any sales tax. i held that even though he does not call himself as an agent, he was only an accommodator or a distributing retail consignee, and the fact that he does not describe himself as an agent does not change the real character of the transactions and his part in such transactions, that the remuneration which he was paid was not a percentage of the price but the actual expenses incurred and interest on the amount and the fact that interest was provided for was a further circumstance in support of the view that whatever.....
Judgment:

Krishnaswami Nayudu, J.

1. The present is a case where the question is whether a consignee retailer under the scheme of distribution of controlled goods, in this particular case textiles, is liable to pay sales tax. A similar question was raised in S.A. No. 921 of 1953 Since reported as P. Vaidyanatha Iyer v. State of Madras [1957] 8 S.T.C. 268 before me and I held that the position of the plaintiff therein who was a consignee retail dealer was not that of a dealer and he cannot come within the meaning of a dealer as defined in the Act and that, therefore, he would not be liable to pay any sales tax. I held that even though he does not call himself as an agent, he was only an accommodator or a distributing retail consignee, and the fact that he does not describe himself as an agent does not change the real character of the transactions and his part in such transactions, that the remuneration which he was paid was not a percentage of the price but the actual expenses incurred and interest on the amount and the fact that interest was provided for was a further circumstance in support of the view that whatever amounts were advanced were by way of loans or advances for the purpose of accommodating and facilitating to put through the transactions, and which amounts were reimbursed by payments together with interest and that taking every circumstance into consideration and especially the terms of the circular orders under which the plaintiff therein had been acting, there was no question of treating him as a dealer within the meaning of the definition in the Act. The same circular orders are the subject-matter of the present second appeal under which the plaintiff was acting. In these circumstances the plaintiff must succeed in this second appeal.

2. It is, however, contended by the learned Assistant Government Pleader, that the facts of this case are different and that therefore they would not attract the application of my judgment in S.A. No. 921 of 1953 Since reported as P. Vaidyanatha Iyer v. State of Madras [1957] 8 S.T.C. 268. referred to above. It is pointed out that in the present case the admission of P.W. I is that on receipt of information about the despatch of the railway receipt through a bank, they used to pay the price and get the receipt, take delivery of the goods and distribute to the retail dealers as per directions of the Textile Control Officer. On this admission it is urged that there are two sales one from the import dealer directly to the consignee retailer, that is the plaintiff, since the invoices are sent in his name and the railway receipts are sent through bank which the plaintiff honoured by payment, and thereafter when the goods are sold to the retailer, though as per directions of the Textile Control Officer. It does not appear to me from the mere admission of the plaintiff's agent, that the course of transaction in the present case is in any way different from the one which was concerned in S.A. No. 921 of 1953 Since reported as P. Vaidyanatha Iyer v. State of Madras [1957] 8 S.T.C. 268. No doubt there are certain invoices issued by the plaintiff to the retailers which are referred to as pro forma invoices. But they appear to be necessary in view of the directions of the Textile Control Officer contained in Exhibit A-6 dated 15th May, 1946. In that communication which is addressed to the plaintiffs, it is stated that the plaintiffs are to distribute the particular bales of cloth referred to in that communication received by them, from Sujansingh Mehta and Co., Madras, who are apparently import dealers, as consignee dealers, to the retail dealers whose names are also mentioned in the said communication. In paragraph 3 of that communication itself, the plaintiffs are directed to intimate the import dealer about the names of the retailers with their licence numbers to whom the goods were distributed with particulars regarding the number of pieces supplied to each with exact yardage, the ex-mill price, the ten per cent profit and sales tax, to enable that dealer to prepare the invoices in the names of those retail dealers. The preparation of the invoices by the plaintiffs, which are referred as temporary invoices, is for the purpose of the import dealer to prepare invoices and send them direct to the retailer. Therefore, there is no question of two sale transactions, one by the import dealer to the consignee retailer in the position of the plaintiffs and another from the consignee retailer to the retailer who eventually gets the cloths in pursuance of the directions of the Textile Control Officer. Even assuming that such a procedure had been adopted in this case, it would not affect the position of the consignee retailer who is only an intermediary and it is not for him to establish, as has been suggested by the learned District Judge in his judgment, that he is the agent appointed by the Government. He is not a dealer and it is not necessary for him to show that he was the agent of the Government. It is enough for him to establish that by virtue of the scheme of distribution adumbrated in the several circular orders, his position is that of any other person who passes the goods from one hand to another under the directions of the Government in pursuance of the control regulations they have laid down for enforcement. He is simply in the position of an intermediary and his function is correctly described, even in the circulars, as being only for distribution of the goods and not for effecting sale. He can in no view of the case be a dealer and therefore he is not liable for being taxed under the Sales Tax Act.

3. The result is this second appeal is allowed with costs. No leave.


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