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Murray and Co. Vs. the Government of Madras - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case Nos. 92, 93 and 94 of 1966 (Revision Nos. 62, 63 and 64)
Judge
Reported in[1970]25STC323(Mad)
AppellantMurray and Co.
RespondentThe Government of Madras
Appellant AdvocateV.K. Thiruvenkatachari, Adv. for ;A.R. Ramanathan, Adv.
Respondent AdvocateK. Venkataswami, Assistant Government Pleader
DispositionPetition dismissed
Cases ReferredJ. Moosa & Sons v. Commercial Tax Officer
Excerpt:
- - sales tax act, complained that its sales turnover was not exigible to tax......appellate assistant commissioner could not comprehend the contention that the levy of tax on the sale of goods held by the appellant at its premises at mount road or at thambu chetty street, was not in order. he, therefore, dismissed the appeals.4. before the tribunal, no more attempt was made to produce evidence, except to press the legal contentions. the tribunal, therefore, was constrained to consider the propriety of the arguments addressed before it and rightly therefore the tribunal, applying the ratio in kandula radhakrishna rao v. the province of madras [1952] 3 s.t.c. 121, came to the conclusion that the assessee was a person who was entrusted with the goods by the owner (principal) with authority to transfer the property and title in the goods to the buyer in the auction, who.....
Judgment:

Ramaprasada Rao, J.

1. These three cases arise out of three appeals in respect of auction sales held by the assessee during the assessment years 1959-60, 1960-61 and 1961-62. The modus operandi adopted by the assessee when it receives an article and when it subjects it to a public sale in its auction room, and the conditions under which the auction is held, were noticed by the Tribunal. We may for purposes of completion, refer to the relevant details therein.

2. As soon as the goods are received by the assessee from the respective owners, the assessee issues a receipt stating that the goods are for sale by outright public auction or private sale. It also notifies that it would be charging a commission of 12 per cent, besides deducting the usual charges. The goods are kept at the risk of the owner and the assessee does not take any responsibility for its loss, damage or breakage when in its custody. Thereafter, the owner is intimated about the date of auction and it is common ground that in most cases the owners are not present, though in some rare cases some of them are. One of the conditions of sale of which the owner has notice, is that the purchaser should pay the sales tax as an extra item. Thus, the assessee, on every occasion of sale of the goods received by it from the owners, treats it as a sale by it to the respective purchasers and charges sales tax thereon in accordance with the prescribed rate and collects the same from the parties and passes on such sales tax to the State. The Tribunal has found that the assessee is entrusted with the goods with specific authority to transfer the property in such goods for a price which the assessee would characterise as the highest bid in the auction, unless otherwise a reserve price is fixed by the owner. The assessee having thus subjected all such sales held by the assessee in the course of the business to sales tax under the Madras General. Sales Tax Act, complained that its sales turnover was not exigible to tax. This was after their accounts were called and examined. The assessee stated that in respect of certain transactions of theirs at their Mount Road branch, they were not dealers in the eye of law and that in all such transactions, they were acting as brokers, thus bringing together the seller and the buyer, while auctioning the goods of the owner. Several other contentions were also raised by the assessee. But, the assessing officer rejected every one of them. On appeal before the Appellate Assistant Commissioner, similar contentions were urged and in particular, the argument centred round a legal concept that the assessee's liability (agent's liability) cannot be any more than that of their principals. Incidentally, the assessee stated before the Appellate Assistant Commissioner that they could not be characterised as dealers as defined under the Act as they cannot be deemed to be carrying on business in a commercial sense. It appears that a vague contention was hesitantly made before the assessing authorities, that the transactions in question were on behalf of dealers and non-dealers and therefore the relief ought to be given at least in cases where the goods transmitted by the assessee to the respective buyers belong to private parties who were not dealers or to those whose turnover did not come within the exigible limits as prescribed. In that connection, the Appellate Assistant Commissioner observed as follows:

It may be stated at. once that the Advocate does not specifically separate the transactions on behalf of dealers and non-dealers, nor has any attempt been made either before the assessing officer or in this forum to separate the different commodities liable to different rates of tax. In the absence of details, not furnished by the appellant though required, the assessing officer has resorted, to estimation of the turnover for the different rates of tax....

3. Ultimately, the Appellate Assistant Commissioner could not comprehend the contention that the levy of tax on the sale of goods held by the appellant at its premises at Mount Road or at Thambu Chetty Street, was not in order. He, therefore, dismissed the appeals.

4. Before the Tribunal, no more attempt was made to produce evidence, except to press the legal contentions. The Tribunal, therefore, was constrained to consider the propriety of the arguments addressed before it and rightly therefore the Tribunal, applying the ratio in Kandula Radhakrishna Rao v. The Province of Madras [1952] 3 S.T.C. 121, came to the conclusion that the assessee was a person who was entrusted with the goods by the owner (principal) with authority to transfer the property and title in the goods to the buyer in the auction, who obtains delivery of the goods from the assessee without even being aware of the identity of the owner. The Tribunal, therefore, after weighing the legal contentions urged, came to the conclusion that the assessees were not mere brokers who brought together the seller and the buyer for certain commission, but they were persons who were to be treated as dealers not only under the common law but also under the provisions of the Madras General Sales Tax Act.

5. As against the order of the Tribunal in the above three appeals, the present tax cases have been filed.

6. Again before us, the legal contention is that an auctioneer who is popularly understood to deal with others' goods, cannot be said to be a dealer by the mere fact that he effects a sale in his show-room and that it should be established that the owner whose goods were being dealt with and sold by the assessee is a dealer himself in the eye of law, for the assessee to suffer the sales tax or to collect the same from the buyer. Mr. V. K. Thiruvenkatachari the learned counsel for the assessee very fairly, as usual, concedes that there are no materials on record to furnish a picture to this court as to what are the dealings of the assessee and what is the nature of such dealings. His argument that the liabilities of a. principal and his agent, in tax laws are co-extensive, is unexceptionable. But the question in the instant case is whether the owners of the respective goods forwarded to the show-rooms of the assessee, are themselves dealers, and even if they are dealers, whether their turnover is exigible to tax within the meaning of the Madras General Sales Tax Act. To appreciate such a contention, a break-up of the turnover made exigible to tax by the revenue, is necessary. Before the Appellate Assistant Commissioner, when a similar argument was addressed, he specifically observed that no attempt had been made by the assessee to place before them any data to weigh the legal contention. The argument of Mr. V. K. Thiruvenkatachari is that if the owner, in any particular case, is not a dealer, who could be subjected to sales tax, then it would be illegal, if not unjust, for the assessee to collect sales tax from the buyers while effecting sales of the goods belonging to such owners. But, this factual representation must be supported by materials on record. Unfortunately, in no one of these appeals, any attempt was made to furnish a break-up of the figures so as to atone with the contention. On the other hand, propositions of law in the abstract were only pressed into service and they were rightly not accepted by the Tribunal. In fact, Section 2(g) of the Madras General Sales Tax Act, 1959, which defines a dealer, includes an auctioneer who carries on the business of buying, selling or distributing goods on behalf of any principal. The word 'any' has a special signification. But, it is unnecessary for us to consider the same in the instant case. Suffice it to say that an auctioneer who acts on behalf of his principal and who has the requisite authority to transfer the property in the goods entrusted to him for sale, is certainly within the mischief of the definition of a dealer. As already stated, the liability of an agent is no doubt co-extensive with the principal. It would, therefore, follow that if the principal is not liable to tax, the agent also may not be liable thereto. This depends upon the proof and establishment as a fact that the principal is not a dealer within the meaning of the Act or even that the principal is not liable to tax under certain special provisions of the Act. No attempt having been made to bring home the legal contentions, with reference to the facts, we are unable at this stage to accept the contention of Mr. V. K. Thiruvenkatachari in the abstract.

7. Reliance, however, was placed on the decision of the Andhra Pradesh High Court, reported in J. Moosa & Sons v. Commercial Tax Officer [1969] 23 S.T.C. 133. There, the question whether an auctioneer is a dealer within the meaning of Section 2(1)(e) of the Andhra Pradesh General Sales Tax Act, 1957, came up for consideration before the learned Judges. Jaganmohan Reddy, C. J., speaking for the Bench, said that the above question and the consequential liability to be assessed to tax can only be determined on an appreciation of the true scope and nature of the functions and transactions of an auctioneer vis-a-vis the provisions of the Sales Tax Act. Each transaction of such an auctioneer is governed by the facts and circumstances arising out of the contract between the purchaser and the auctioneer or the implied authority vested in him. That case arose under article 226 of the Constitution of India, where the court was called upon to issue a writ of prohibition challenging the jurisdiction of the assessing authority, who, by then, issued a notice to the auctioneer therein proposing to assess him as a dealer. The learned Judges after exhaustively referring to the law relating to auctioneers and the transactions indulged in by them, ultimately came to the conclusion that the auctioneer therein should be given an opportunity to raise the several pleas before the court and to adduce material or evidence in support of his several contentions, and when raised, the same be determined in accordance with the principles set out by them in their judgment. We may incidentally observe that though the proceedings were initiated with a request for the issue of a writ of prohibition, ultimately a writ of certiorari was sought as in the course of the earlier writ proceedings a final order of assessment was passed. The fact, however, remains that J. Moosa & Sons v. Commercial Tax Officer [1969] 23 S.T.C. 133 is an authority for the proposition that each transaction of an auctioneer is susceptible to scrutiny in the light of the facts and circumstances attendant upon it and unless such material or evidence is available, it would be difficult to decide whether an auctioneer as such is a dealer or not.

8. Here, the assessee never took the precaution, in spite of having been warned by the Appellate Assistant Commissioner, to place such material and evidence before the assessing authorities or even before the revenue or at least before us, to satisfy that the dealings of this kind cannot straightaway be included into the net of taxable turnover without a further probe and scrutiny. A person, who does not help himself, cannot seek help from others. This applies to the facts of this case. In these circumstances and in the absence of material, we are unable to appreciate and weigh the contention of Sri V.K. Thiruvenkatachari that in the turnover characterised as assessable turnover, is included an amount which ought not to have been included in the eye of law.

9. The tax cases are therefore dismissed. There will be no order as to costs.


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