9911796707
TMI Blog1966 (12) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods were imported within the State of Madras. - Civil Appeal No. 483 of 1965 - - - Dated:- 7-12-1966 - SUBBA RAO K., SHAH J.C., SIKRI S.M., RAMASWAMI V. AND VAIDIALINGAM C.A. JJ. P. Ram Reddy, Senior Advocate (A.V. Rangam, with him), for the respondent. A.K. Sen, Senior Advocate (R. Gopalakrishnan, with him), for the appellant. K. Srinivasan and R. Gopalakrishnan, for the intervener. ------------------------------------------------ The judgment of the Court was delivered by SHAH, J.- The appellant-hereinafter referred to as "the assessee"-is a registered dealer under the Madras General Sales Tax Act, 1939, and carries on the business of buying and selling cloth in the town of Madras. For the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any firm, which, or a commission agent, broker, del credere agent, auctioneer or any other mercantile agent, by whatever name called, who, carries on such business, is a dealer within the meaning of this clause;" Section 3(2) of the Act at the material time provided "On the first sale of any of the goods mentioned below by a dealer who is not exempt from taxation under the next succeeding sub-section, the dealer shall pay a tax at the rate specified as applicable thereto; and the tax shall be paid by the dealer on his turnover in each year relating to such goods and shall be in addition to the tax to which he is liable under sub-section (1) on his total turnover for the year: Provided that, in the case of goods imported into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent's goods for sale to the appellant-firm. After the price was settled, the agent or branch, as the case may be, would communicate the order to the non-resident seller, who would then despatch the goods. The sale price was never paid In advance. The goods were never inspected by the appellant-firm until actual delivery was taken by them in Madras State. The railway receipts were taken out by the non-resident showing himself as consignor as well as consignee. The receipts would bear blank endorsement and would be handed over to the appellant-firm by the agents or branches of the non-resident sellers. In many cases, the railway receipt is sent to the non-resident's bank and payment would be made at or subsequent to the time when the railway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee were, by the express words of the statute, not within the net of taxation. The High Court rejected the claim of the assessee on the ground that the sale of goods to the assessee was by a non-resident dealer and therefore the sale did not fall within the proviso. The High Court observed that even though the agent of a non-resident seller who negotiated the sale and delivered the documents of title may be a dealer within the meaning of section 14-A(i) "the representative character of the agent with which he is clothed under section 14-A of the Act cannot be read into the first proviso to section 3(2) of the Act to enable" the assessee "to contend that the sale in his favour was the first sale from another dealer in the State". The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er within the State. If, therefore, the goods were sold within the State of Madras by an agent of the kind mentioned in section 2(b) explanation of the non-resident owner, the agent being resident of the State of Madras, the sale would be deemed to be the first sale, provided the condition about the sale after import of the goods into the State of Madras was fulfilled. Unfortunately no investigation of facts has been made either by the Tribunal or by the High Court on these important questions about the authority of the agent who negotiated the sale transactions. They have also not determined whether the property in the goods passed within the State of Madras so as to constitute a sale effected in the State of Madras, nor has it been found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts residing outside Andhra Pradesh, booked orders, forwarded them to the principals, and received commission on sale of goods despatched to Andhra Pradesh. This Court, agreeing with the High Court, held that the non-resident principals were carrying on the business of selling goods in Andhra Pradesh and that the appellants as their agents were liable to be assessed to tax under section 14-A of the Act. But there is nothing in the present case to show that the non-resident owners of goods were carrying on business of selling goods in the State of Madras through their agents. We are of the view, having regard to the circumstances, that the case should be remanded to the High Court to determine the questions whether the agent of the non-res ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
