1988 (5) TMI 329 - SC - VAT and Sales Tax

Whether there is a sale or not? Whether there is transfer of property? Held that - Appeal dismissed. It is not necessary to consider this submission, because, according to us, in view of the said agreement, considered in the light of the surrounding circumstances, the assessee as distributor was not an agent of the said company in respect of the transactions in question, but was the purchaser and hence the transactions were liable to be included in the turn- over of the assessee.

Summary

Issues Involved:
1. Nature of the relationship between the assessee-firm and the company.
2. Whether the transactions in question constituted sales by the said company to the assessee.
3. Whether the transactions should be included in the taxable turnover of the assessee.

Detailed Analysis:

1. Nature of the relationship between the assessee-firm and the company:
The primary issue was to determine whether the assessee-firm was acting as an agent of the company or as a purchaser of the goods. The agreement dated 11th February, 1967, appointed the assessee-firm as the exclusive distributor of sodium hydrosulphite in Kerala. The High Court emphasized that the test to determine whether there was a sale or not is to find out whether there is a transfer of property. The Court noted that the term "distributor" and not "agent" was used in the agreement, and the rebate given to the distributor was not termed as "commission." The Court concluded that the assessee-firm was not an agent but a purchaser of the goods.

2. Whether the transactions in question constituted sales by the said company to the assessee:
The Court examined the agreement's clauses, particularly clause 2(a), which allowed the company to make bulk supplies directly to consumers on the distributor's advice, provided the distributor arranged for payment and bore the risks. Clause 8 detailed the payment arrangements, indicating that the distributor had to ensure payment either in cash, by demand draft, or by irrevocable letter of credit. The Court found that these arrangements and the fact that the goods were insured at the distributor's cost indicated a transfer of property to the distributor. Thus, the transactions constituted sales by the company to the assessee.

3. Whether the transactions should be included in the taxable turnover of the assessee:
The Court noted that the invoices were prepared in the names of the consumers, and the goods were consigned through public carriers booked "self," with transport bills endorsed and handed over to the assessee. The High Court had previously held that the delivery to the distributor or his nominee (the consumer) indicated a transfer of property. The Court agreed with this view, stating that the property in the goods passed to the distributor upon endorsement and handing over of the bills. Consequently, the transactions were liable to be included in the taxable turnover of the assessee.

In conclusion, the Court dismissed the appeal, affirming that the assessee-firm was a purchaser of the goods and not an agent, and the transactions were rightly included in the taxable turnover of the assessee. The appeal was dismissed with costs.