1. The respondent is a dealer in chillies in Sulurpet taluk. He was assessed to sales-tax by the Deputy Commercial Tax Officer for the year 1948-49, that is to say, for the transaction from 1-4-1948 to 31-3-1949 on a turnover of over Rs. 30515/5/1. Ex. P. 1 is the assessment order. Ex. P. 2 is the demand notice served on the respondent on 10-2-1950. Ex. P. 3 is the return in form A submitted by the respondent. The respondent, accused not having paid the assessment as per the demand he has been charge-sheeted for an offence under Section 15(b), Madras General Sales-tax Act, 1939. On these facts being affirmatively proved by the prosecution the accused, respondent, stated that he was never a dealer purchasing and selling chillies, that he had no business of his own and that he was doing the business on behalf of the ryots and that he did not commit any offence as charged.
2. The learned Sub Divisional Magistrate in this particular case, and this is not the first instance of this kind, has taken upon himself the supererogatory task of deciding that the observations of the Appellate Commercial tax authority are binding on the Deputy Commercial Tax Officer whereas these observations are absolutely irrelevant in a prosecution for non-payment of tax and with which alone the Sub-Divisional Magistrate was concerned. In order to get over Section 16A the accused alleged that he was not a dealer but a commission agent and the Sub-Divisional Magistrate came to the conclusion that the accused is not therefore a dealer and that he is not liable to pay the tax and so he cannot be prosecuted. In coming to this conclusion he committed an error because it has been held by a Full Bench of this Court in --Radhakrishna Rao v. Province of Madras', : AIR1952Mad718 (FB) (A) that the term dealer will take in a commission agent also as in the instant case.
3. Therefore, the Court below ought to have found that the accused is an assessee falling within the scope of the Act and that he is liable to pay the tax.
4. In the result, the order of acquittal of the lower Court is set aside and the accused is convicted as charged and he is fined in a sum of Rs. 50. The tax is also made recoverable from him as if it were a fine. Time to pay the fine and the tax amount three weeks from the date of the receipt of this order in the lower Court.