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The State of Madras Vs. A. Abdul Shukoor and Company - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Tax Case No. 77 of 1970 (Revision No. 59)
Judge
Reported in[1975]35STC207(Mad)
AppellantThe State of Madras
RespondentA. Abdul Shukoor and Company
Appellant Advocate K. Venkataswami, the First Assistant Government Pleader
Respondent Advocate C. Venkataraman, Adv.
DispositionPetition allowed
Cases ReferredState of Madras v. Cement Allocation and Co
Excerpt:
- .....these rival contentions and ultimately held that the respondents' licence will cover their agency transactions carried on on behalf of the non-resident principals as well. the tribunal also held that even if the respondents' agency transactions are taken to be unlicensed transactions, it cannot be brought to charge under the multi-point levy in view of the decision of this court in p. hajee abdul wahab and sons v. government of madras [1966] 17 s.t.c. 284. the revenue is aggrieved against the order of the tribunal.3. according to the revenue, the decision of the tribunal that the disputed turnover is covered by the respondents' licence and, as such, entitled to the benefit of single point levy and that if the respondents' agency transactions are treated to be unlicensed, still.....
Judgment:

Ramanujam, J.

1. The respondents herein are dealers in hides and skins. They had taken out a licence to deal in hides and skins under form IV for the year 1952-53. In the course of the assessment, the assessing authority fixed their taxable turnover at Rs. 4,83,615-12-1 and licensed turnover at Rs. 58,11,971-4-8. There was an appeal to the Appellate Assistant Commissioner, but without success. On a further appeal to the Tribunal, the Tribunal remanded the matter for fresh decision to the Appellate Assistant Commissioner with reference to certain additional grounds of attack against the assessment raised by the respondents before the Tribunal. Even after the remand the Appellate Assistant Commissioner again dismissed the appeal.

2. When the matter again came before the Tribunal, the dispute centred round, among other things, on a turnover of Rs. 2,34,899.74, which represented sales of tanned hides and skins effected by the respondents on behalf of non-resident dealers. The contention of the respondents in relation to the above turnover was that the same should be taken to be covered by their licence in form IV and, as such, cannot be treated as unlicensed transactions and brought to charge under the multi-point levy. The revenue, however, contended that the respondents having acted as agents of nonresident principals in respect of the said sales turnover, the same cannot be taken to be covered by the petitioner's licence. According to the revenue, the respondents' licence will cover only their own transaction of purchase or sale of hides and skins and cannot be taken to cover the respondents' agency transaction either on behalf of resident principals or on behalf of non-resident principals. The Tribunal considered these rival contentions and ultimately held that the respondents' licence will cover their agency transactions carried on on behalf of the non-resident principals as well. The Tribunal also held that even if the respondents' agency transactions are taken to be unlicensed transactions, it cannot be brought to charge under the multi-point levy in view of the decision of this court in P. Hajee Abdul Wahab and Sons v. Government of Madras [1966] 17 S.T.C. 284. The revenue is aggrieved against the order of the Tribunal.

3. According to the revenue, the decision of the Tribunal that the disputed turnover is covered by the respondents' licence and, as such, entitled to the benefit of single point levy and that if the respondents' agency transactions are treated to be unlicensed, still the turnover could not be taxed is not tenable at all. It is said that the decision in P. Hajee Abdul Wahab and Sons v. Government of Madras [1966] 17 S.T.C. 284, on which the Tribunal relies, has been held to be wrong by a later decision of a Full Bench of this Court. It is further said that the Tribunal has entirely overlooked the statutory provisions and equated the agency transactions with the respondents' own transactions, that though under Section 14-A of the Madras General Sales Tax Act, 1939, an agent of the non-resident principals is deemed to be a dealer, such an agent cannot be treated to be a dealer dealing on his own behalf and that, therefore, the fact that the assessees have taken out a licence for his dealings in hides and skins will not entitle him to get the benefit of that licence in respect of his agency transactions either on behalf of the resident principals or on behalf of the non-resident principals.

4. As regards the view taken by the Tribunal that even if the sales of hides and skins effected by the petitioners as agents of non-resident principals are taken to be unlicensed, they cannot be charged at multi-point levy, it can straightway be said that the said view cannot any longer be tenable in view of the later decision of the Full Bench of this Court in State of Madras v. M. A. Noor Mohamed and Co. [1970] 26 S.T.C. 549.

5. As regards the question as to whether the turnover in dispute is covered by the respondents' licence in form IV, it has to be borne in mind that the licence is applied for by a dealer dealing in hides and skins for getting the benefit of a single point levy and if he does not take out a licence, he is exposed to multi-point tax in respect of his dealings in hides and skins under Section 6-A of the Act. A perusal of the licence in form IV also indicates that it is intended to cover only the assessees' own transactions as a dealer and not his agency transactions. In respect of the commission agency transactions on behalf of the resident principals, a separate licence is required to be taken under Section 8 read with Rule 5(1) of the Madras General Sales Tax Rules, 1939. If the Tribunal's view is taken to be correct, then the licence in form IV will cover the agency transactions of the respondents on behalf of the resident principal as well. But the statute specifically requires a separate licence to be taken under form V for all agency transactions on behalf of the resident principals. It has, therefore, to be taken that the licence in form IV is intended to cover only the licensee's own dealings in hides and skins and not his agency transactions on behalf of the non-resident principals.

6. The learned counsel for the respondents would, however, point out that the licence itself does not indicate that it is restricted to one's own dealings in hides and skins. But that the licence is intended to cover the licensee's own transactions of hides and skins is clear from the other provisions of the Act and the Rules, which deal with agency transactions separately. In respect of the agency transactions on behalf of the resident principals, a separate licence has been provided for, and in respect of the agency transactions on behalf of the non-resident principals, who are not registered as dealers under the Act, no licence could be granted under the Act and, therefore, they have been treated as transactions, which could not be licensed under the provisions of this Act. We are, therefore, of the view that the Tribunal is not right when it said that the respondents' licence in form IV will also cover the transactions of tanned hides and skins on behalf of the non-resident principals, who are not themselves licensed dealers.

7. We are also fortified in taking the above view by a decision of the Supreme Court in State of Madras v. Cement Allocation and Co-ordinating Organisation [1972] 29 S.T.C. 114 In that case an assessee as an agent of a cement manufacturer claimed that the packing charges shown separately in the bills issued to the buyers should be deducted from the taxable turnover under Rule 6(c) of the Madras General Sales Tax Rules, 1959. The High Court had held that the assessee would be entitled to the deduction claimed if his principal would have been entitled to deduct the packing charges had he sold the cement in question directly. While affirming the said decision their Lordships of the Supreme Court expressed that under the general law an agent merely represents and acts for his principal, that this rule must hold good even under the Madras General Sales Tax Act, 1959, unless otherwise provided therein, and that excepting to the extent otherwise provided for in that Act, the agent, while dealing with the goods of his principal, merely steps into his shoes and, therefore, he is entitled to the same exemption as his principal would have got had he dealt with the concerned goods himself. The principle of the above decision of the Supreme Court appears to be that though the agents are treated as dealers for certain purposes, they, cannot be equated to the principals for all purposes under the Act. Applying the same reasoning to the facts of this case, though the respondents, who have sold the goods on behalf of the non-resident principals and are assessed as deemed dealers in respect of the business of each such non-resident principal in this State with which they were concerned, the business of the non-resident principals will not become their individual business and the principals' turnover cannot become their business turnover. Admittedly, in the assessment of the respondents as deemed dealers under Section 14-A of the Act their own dealings cannot be clubbed with their agency transactions and there should normally be a separate assessment on the respondents in respect of their agency transactions in respect of each of the non-resident principals. It is, therefore, clear that though the respondents are deemed to be dealers in respect of their dealings on behalf of the non-resident principals, such dealings have to be kept apart from their own dealings which come for assessment in their individual assessment. Hence, the licence in form IV, which has been issued to cover their dealings in hides and skins cannot be said to cover the transactions of the non-resident unlicensed dealers which have been carried on through the respondents as agents.

8. In our view, the Tribunal's conclusion on both the points cannot be upheld. The order of the Tribunal is set aside and the tax case is allowed with costs. Counsel's fee Rs. 150.


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