LexBAGAL KOT CEMENT CO. versus STATE OF MYSORE
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A B c D E F G H 852 BAGAL KOT CEMENT CO. v. STATE OF MYSORE November 27, 1975 [P. K. GOSWAMI AND N. L. UNTWAL!A, JJ.] Cemral Sales 1'ax Act, 1956-S. 2(b)-"dealer" if includes a del credre agent c.nd a mercantile agelll. By an agreement, the State Trading Corporation appointed the appellant as its selling agent for cement. A term o[ the agreement was that the agent shall collect State or inter-State sales tax on the sale of cement and pay the same • in accordance with law. The appellant paid the sales tax on its annual turn- over to me Sales Tax Authorit.ies. Later, however, it filed an appeal stating ~ that it was ncit a dealer and, as such, was not liable to pay any tax, but that was dismissed. Its appeal to the Appellate Tribunal and later revision application before the High Court were dismissed. Dismissing the appeal to this Court, HELD : (I ) The contention that the appellant being an agent of the State Trading Corporation, it was not a dealer as defined in s. 2(b) of the Central Sales Tax Act and hence was not liable to pay any sales-tax thereunder has no substance. Having realised the sales-tax from the various customers and volun- tarily paid it as per the return submitted it was ill-advised to take an inconsis- tent stand of its not being liable to pay sales tax under the Central Sales Tax Act. [853F-G] (2) From a reading of the 1-erms of the agreement it is abundantly clear that sale was made by the appellant-company as it effected transfer of property in the goods to the customers and 1ea!ised the sale price from them by issuing invoices in its own name. The restricted definition of the term "dealer" in the Central Sales Tax Act is not wide enough to cover all kinds of agents such as a broker or a commission agent simp/iciler. The term "dealer" defined in the Central Act, would, however, include a de/ crcdre agent or a mercantile agent who carries on the busine5' of buying or selling goods not as an agent simpliciter on behalf of the disclos~d princinal hut '" a principal 1·is-a-vis its customers. f855F-H1 Ka11d11/a Radhakrisl111a Rao and others v. The Province of Madras represent- ed by the Collector of Wesn Godavari, Eluru mid another, A.I.R. 1952 Madras 718, approved. In the instant case it was the appellant company which carr :·c,l on the busi- ness of selling cement although it was acting as selling agent of the Corporation_ The Corporation was· not a Je<1ler which effccte,\ the 'ales but it wa' the com- pany which did so. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 98 of 1971. Appeal by special leave from the. Judgment. anct. Order dated the 26th February 1970 of the Mysore High Court m S. r.R.P. No. 18 of 1969. D. V. Patel, Vineet Kumar and B. P. Singh for the Appellant. v. P. Raman, Addi. Sol. General, N. Nettar and R. C. Kaushik for the Respondent. r I 1 BAGAL KOT CEMENT co. v. MYSORE (Untwalia, !.) 853 The Judgment of the Court was delivered by UNTWALIA, J. In this appeal by special leave the question for determination is whetl}er the appellant company is a dealer within the meaning of section 2(b) of the Central Sales Tax Act, 1956-herein- after referred to as the. Central Act, liable to pay sales tax thereunder. The appellant, Bagal Kot Cement Co. Ltd., is a manufacturer of cement. For the period 1st April, 1961 to 31st March 1962 it filed a Return before the Assessing Authority showing a total turn-over of Rs. 1,11,02,243/-. The entire sum was shown as taxable turn-over on which an amount of Rs. 2,25,317.55 had been 'collected and paid • as tax. No claim was made on behalf of the appellant before the Assessing Authority that it was not liable to pay any sales tax. The Authority accepted the Return and assessed the tax as per the appel- lant's figure. It appears the appellant was advised there<(fter to file an appeal before the Deputy Commissioner of Commercial Taxes and take the stand that in respect of the transactions in question it was not a dealer and was not liable to pay any tax. The Deputy Commissioner dismissed the appeal. A second appeal filed by the appellant before the Mysore Sales Tax Appellate Tribunal also failed. The company took up the matter in revision to the High Court under 'sectfori 23 of the Mysore Sales Tax Act, 1957-hereinafter called the State Act, read with section 9(2) of the Central Act. The High Court dismissed the revision. Hence this appeal. Under the Cement Control Orders,
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