LexTHE COMMISSIONER OF SALES TAX, U.P. versus BISHAMBER SINGH LAYAQ RAM
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B c D E F G 548 THE COMMISSIONER OF SALES TAX, U.P. v. BISHAMBER SINGH LA YAQ RAM August 26, 1980 (P. N. BlIAGWATI, A. P. SEN & E. S. VENKATARAMIAH] U.P. Sales Tax Ac! 1948, ss. 2(c) Expln., 7(3) and 11(4)-Kutcha arhatiya whether a deale1-Ques1ion of law neither raised before the appellate nor revi- sional authority-High Court in reference-Whether entitled to· go ifllo the question. Words & Pltrases-'arhatiya'-'pucca arhatiya'-'kutcha arhatiya'-Meaning of-s. 2(2) Expln. U.P. Sales Tax Act, 1948. Section 2(c) of the U.P. Sales Tax Act, 1948 defines "dealer" to mean any person or association of persons carrying on the business of buying or selling goods in Uttar Pradesh whether for commission, remuneration or otherwise. By the U.P. Sales Tax (Amendment) Act, 1949 an Explanation was inserted in this section to provide that a factor, a broker, a commission agent or arhatiyo., a de/ credere agent, an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying or selling goods on behalf of his principles, or through whom the goods are sold or purchased sh.ill be deemed to be a dealer for !he purposes of the Act. The respondent (assessee) who was registered as a dealer under section SA was carrying on business in jaggery, amchur, khandsari etc. on its own account and as kutcha arhatiya. The nature of the b~siness carried on by the assessee was that cultivators brought their produce to the assessee for sale. The goods were weighed at his shop and then supplied to the pucca arhatiyas or to other persons. Price of the commodity in ful! or part was paid by the assessee. to the cultivators directly, and the price from the purchaser were realised after· wards. During the asse;;sment year 1967-68 the Sales Tax Officer by his assess- ment order rejected the account books of the assessee on the basis of some discrepancy found durir.g the four surveys carried out at the shop and made a best judgment assessment under sub-section (3) of s~ction 7 of the Act, deter- mining the taxable turnover of purchases effected by the assessee as a kutcha arhafiya at Rs. 5.3 lacs and taxed it. On appeal the Assistant Commissioner (Judicial), Sales Tax reduced the taxable turnover of purchase by Rs. 1.5 lacs. Cross-revisions by the appellant as well as by the respondent were allowed by the Additional Judge (Revisions), Sales Tax who by his order negalived the plea of the assessee that he was not a dealer but held from the material on record that the iaxable turnover of the assessee could not reasonably be deter- mined at Rs. 3.8 lacs. The orders of the Assistant Commissioner (Judicial) and Sales Tax Officer were set aside and a fresh best judgment assessment was directed to be made. + .. ". + i ' :;~:.. ',. CST V. :BISHAMBHER SINGH 549 The High Court .~P~n reference, as to the liability of the '.lssessee to tax -On th~ .transactions .effested .1'y· it as kutclza arhatiya held, that tl:e assessee c'YlJ.S not a dealer. It further. held .t~at .a person can be liable to tax as a eeale~ .only if he acts as an agent having the authority to pass title in the goo.ds sold, and that a kutcha ariw,tiy~ mereiy brought together the seller and the purchaser and helped in settling the price and weighment of the goods etc. In the appeal to tnis .C.ourt it was contended, on. behalf of. the appellant, >that the High Court was wrong in holding that the assessee was not a dealer within section 2(c) of the Act and that the High Court had completely over- looked ,the .. Explanation to ,section 2(c) which was inse.rted by .t.he U .. P .... Sales ·Tax (Amendment) Act, 1959 particularly the words "through whom the g.oods '-....are sold or purchased", and that the Sales Tax Officer was not justified ia •making an assessment to the best of his judgment under section 7(3). '· Allowing the appeal ,>.- HELD: l(i) The finding arrived at by the High Court that the assessee as a _.kutcha arhatiya me\ely. broµght together the seller and the buyer charging ·an additional sum by way of commissicin and,_ therefore, coul.d not be.regarded •as a dealer i.e. a person engaged in the business .of buying and selling goods, ~s contrary to the admitted facts of the case. [551 HJ " "' , . • • • • ~ I [ (ii) Explanation to s. 2(c) brought within the definition of 'dealer' not only ·a commissio
Excerpt shown. Read the full judgment & AI analysis in Lexace.