1955 (9) TMI 50 - HC - VAT and Sales Tax

Issues Involved:
1. Whether the sales are effected through and by the assessee as a commission agent acting as a dealer under section 2(c) of the Act.
2. Whether there is any privity of contract established at any stage between the Bepari and the weaver.
3. Whether the assessee acquired possession and control either actual or constructive over the goods at any stage.
4. Whether the non-applicant is a "dealer" within the meaning of section 2(c) of the C.P. and Berar Sales Tax Act, 1947, or is a broker not falling within the said section.
5. If the assessee's function as a "broker" is within the mischief of the Sales Tax Act, are the provisions so making it intra vires.
6. Are the relevant provisions of the Sales Tax Act within the legislative competence of the Provincial Legislature functioning under Entry No. 48 of the Seventh Schedule to the Government of India Act.

Detailed Analysis:

1. Whether the sales are effected through and by the assessee as a commission agent acting as a dealer under section 2(c) of the Act:
The court examined the nature of the transactions and concluded that the assessee acts as a broker and not as a commission agent. The assessee facilitates the negotiation between the weaver and the Bepari but does not sell the goods on his own. The court noted that the transaction is concluded when a chit is placed in the saree, and the weaver is not involved thereafter. The court emphasized that the assessee does not acquire dominion over the goods, which remain the property of the weaver until the transaction is complete. Therefore, the assessee is not included in the definition of a "dealer" under section 2(c) of the Act.

2. Whether there is any privity of contract established at any stage between the Bepari and the weaver:
The court affirmed that there is a privity of contract between the weaver and the Bepari. The assessee acts merely as an intermediary facilitating the transaction. The weaver and the Bepari negotiate the price directly, and the transaction is closed when the chit is placed in the saree. Thus, the contract is directly between the weaver and the Bepari.

3. Whether the assessee acquired possession and control either actual or constructive over the goods at any stage:
The court found that the assessee does not acquire possession and control over the goods at any stage. The goods remain with the weaver, who can take them away if the transaction does not go through. The assessee merely facilitates the transaction and does not take ownership or control of the goods. Therefore, the assessee does not acquire possession and control over the goods.

4. Whether the non-applicant is a "dealer" within the meaning of section 2(c) of the C.P. and Berar Sales Tax Act, 1947, or is a broker not falling within the said section:
The court concluded that the non-applicant is a broker and not a dealer within the meaning of section 2(c) of the Act. The assessee acts as an intermediary between the weaver and the Bepari, facilitating the transaction without acquiring dominion over the goods. The court emphasized that the assessee does not carry on the business of selling goods either as a principal or as an agent. Therefore, the assessee is not a dealer under the Act.

5. If the assessee's function as a "broker" is within the mischief of the Sales Tax Act, are the provisions so making it intra vires:
The court did not find it necessary to answer this question as the definition of a "dealer" does not include a broker. Since the assessee is not a dealer, the question of the provisions being intra vires does not arise.

6. Are the relevant provisions of the Sales Tax Act within the legislative competence of the Provincial Legislature functioning under Entry No. 48 of the Seventh Schedule to the Government of India Act:
The court did not find it necessary to answer this question in view of its opinion on the previous questions. The court concluded that the assessee is not a dealer, and therefore, the question of legislative competence does not arise.

Conclusion:
The court answered the reference by concluding that the assessee acts as a broker and is not included in the definition of a "dealer" under section 2(c) of the Act. The contract is between the weaver and the Bepari, with the assessee acting as an intermediary. The assessee does not acquire possession and control over the goods at any stage. The court agreed with the Board of Revenue's conclusion that the assessee is a broker and not a dealer. Consequently, the questions regarding the intra vires nature of the provisions and legislative competence were not addressed. The reference was answered accordingly, with no order as to costs.

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