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The Tiruchengode Co-operative Marketing Society Limited Vs. the State of Tamil Nadu - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberT.C. Nos. 102 to 104 of 1974
Judge
Reported in[1978]41STC212(Mad)
AppellantThe Tiruchengode Co-operative Marketing Society Limited
RespondentThe State of Tamil Nadu
Appellant AdvocateC. Natarajan, Adv.
Respondent AdvocateAdditional Government Pleader
DispositionPetition allowed
Cases ReferredZackria Sons Private Ltd. v. State of Madras
Excerpt:
- .....in that year, there was a disputed turnover of rs. 6,43,194.33. the main contention raised by the assessee-society against the above assessments to tax was that, in respect of the sales covering the turnovers in dispute for all the three years, the society merely acted as an intermediary, bringing together the agriculturist-principals and the respective purchasers in auction held in the presence of the members and that the society did not actually do any business of purchasing or selling to make itself liable to assessment under the tamil nadu general sales tax act, 1959. this contention was negatived by the assessing authority and also by the appellate authority. the matter thereafter came on appeal before the sales tax appellate tribunal for all the three years and the tribunal passed.....
Judgment:

Sethuraman, J.

1. These revision petitions have been filed by the assessee, a co-operative society and they relate to the assessment years 1959-60, 1960-61 and 1961-62. The assessee was assessed for the assessment years 1959-60 and 1960-61 on a taxable turnover of Rs. 12,49,628.96 and Rs. 24,26,609.87 respectively. Out of the said turnover the assessee disputed a turnover of Rs. 12,06,990.35 for the year 1959-60 and a turnover of Rs. 24,08,705.83 for the year 1960-61. For the assessment year 1961-62 the assessee was assessed on a taxable turnover of Rs. 31,31,177.88 as against Rs. 24,85,999.25 reported by the assessee. In that year, there was a disputed turnover of Rs. 6,43,194.33. The main contention raised by the assessee-society against the above assessments to tax was that, in respect of the sales covering the turnovers in dispute for all the three years, the society merely acted as an intermediary, bringing together the agriculturist-principals and the respective purchasers in auction held in the presence of the members and that the society did not actually do any business of purchasing or selling to make itself liable to assessment under the Tamil Nadu General Sales Tax Act, 1959. This contention was negatived by the assessing authority and also by the appellate authority. The matter thereafter came on appeal before the Sales Tax Appellate Tribunal for all the three years and the Tribunal passed a common order on 12th May, 1972.In the course of its order, after onsidering the modus operandi and also the rules and regulations of the society, the Tribunal came to the following conclusion :

As rightly discussed by the lower authorities, the turnover acquired by the agent in such circumstances as above is as a result of having dominion over the goods of the principal with authority to transfer the property in such goods. The transactions should therefore be considered as that of the turnover of the society and it cannot be considered as the turnover of the principals.

2. The result was that the Tribunal confirmed the assessment of the disputed turnover for all the three years. It is this order of the Tribunal that is now challenged in the present revision petitions.

3. The short question that arises for consideration is, whether the asses-see is a dealer within the meaning of Section 2(g) of the Tamil Nadu General Sales Tax Act, 1959. The definition of 'dealer', so far as is material, runs as follows :

'dealer' means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes....

(iii) a commission agent, a broker or a del credere agent, or an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal ;....

Explanation (1).-A society (including a co-operative society), club or firm or an association which, whether or not in the course of business, buys, sells, supplies or distributes goods from or to its members for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act.

4. After the enactment of this provision, this court was concerned with the assessment of the assessee itself in State of Madras v. Tiruchengode Co-operative Marketing Society Ltd. [1965] 16 S.T.C. 760. In that case, in dealing with a similar contention of the Government Pleader, it was pointed out by this court as follows:

The learned Government Pleader, appearing for the State, points out that under the definition in Section 2(g)(iii) of the 1959 Act, a commission agent, a broker or a del credere agent, or an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal, will be a dealer. But we had occasion to point out in a recent judgment in (T.C. No. 86 of 1963) Zackria Sons Private Ltd. v. State of Madras [1965] 16 S.T.C. 136, that the terms used in this Section to define a dealer should be applied only after finding out whether in a given case the assessee entered into a bargain with the buyer (or the seller as the case may be) amounting to a sale within the definition of sale in the Act and that this requirement has to be satisfied before a person, who may be described in any of the ways mentioned in Section 2(g)(iii) extracted above, can be assessed to sales tax.

5. In the same judgment, the learned Judges further observed:

In fact the present case falls under the 1959 Act, which does not reproduce Section 14-A (of the 1939 Act) at all. On the other hand, it has amplified the definition of 'dealer' in the manner already referred to. Therefore, an agent with dominion over the goods of the principal and with authority to transfer the property in such goods and consequently effect sales and acquire a turnover in respect of such transactions cannot be treated on the same footing as the agent of a non-resident principal assessed under Section 14-A. The turnover acquired by the agent in the circumstances mentioned above is in law as well as in fact his own turnover for the purposes of sales tax assessment and it cannot be considered as the principal's turnover.

6. In the light, of the above, we may consider the facts with reference to the assessment years in question. The modus operandi of the transactions has been described in the present case as follows :

Generally, the stock received from a member is given a stock number and placed for auction. The sale is knocked down in favour of the highest bidder and when only agreed upon by the seller, i. e., the agriculturist, the sale is declared. The auction is conducted only in the presence of the agriculturist (member) and the buyer (merchants). The commodity tendered is then weighed or measured and sales chit is prepared which contains details of tenderer, his address, quantity tendered for sale, name of the buyer, rate of sale, total amount of sale proceeds, deductions such as advances, commission towards handling and other charges, if any and the net amount due to the agriculturist-member. A copy of this chit is handed over to him at the time of payment. The society does not wait for realisation of the proceeds from the buyer, while the seller (i. e., agriculturist) is paid on the spot.

7. This extract, on the findings of fact, whose correctness is not challenged makes it clear that the sale takes place only when the agriculturist-member consents to the receipt issued by the assessee at the time of the receipt of the agricultural produce intended for sale. The note in receipt may be reproduced here :

8. The above note will clearly show that the assessee had no authority to sell the produce of a particular agriculturist without his consent. Consequently, the documents make clear the following two facts :

(1) The assessee had no authority to sell the goods without the consent of the member concerned; and

(2) actually at the auction the goods are sold only when the agriculturist-member accepts the price offered.

9. These two facts about which there is no controversy clearly establish that the assessee cannot be said to have authority to transfer the property in the goods. Even if the assessee could be said to have dominion over the goods, if it did not have authority to transfer the property in such goods, certainly as per the law laid down by the Bench, referred to already, the assessee in the present case cannot be said to have effected a sale and, therefore, cannot be said to have acquired a turnover liable to sales tax. However, we may also point out that the Tribunal has not referred to either of these two aspects in the course of its order, even though it held that the assessee had acquired the turnover of its own and was liable to tax in respect thereof. In view of the above two facts, which have been totally overlooked by the Tribunal, we are of the opinion that the order of the Tribunal is erroneous and cannot be sustained.

10. Under these circumstances, the tax revision petitions succeed and they are allowed and the order of the Tribunal holding that the turnover in question is the turnover of the assessee and it is liable to tax is set aside. The assessee-petitioner will be entitled to its costs. Counsel's fee Rs. 250 (Rs. Two hundred and fifty only), one set.


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