9911796707
TMI Blog1954 (1) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... , sell the fruits, vegetables and flowers received by them in lots as consigned by each principal. The business is usually conducted between 4 A.M. and 7 A.M. in comparative darkness with the aid of kerosene lamps in small stalls. The very nature of the articles dealt with by these people necessitates speedy disposal of all the goods within the short period of three hours, because people who purchase from these agents have to take these articles for vending to distant parts of the city. It should be obvious that unless these goods are distributed in the main market before 6 or 7 A.M. the retail sellers would not be able to satisfy the demands of the consumers who normally need these articles for their consumption as early as possible in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department contended that two of the con- ditions of the licence had been violated, viz., (1) a stock book had not been maintained by the commission agents, and (2) cash bills for the sales effected by the commission agents had not been issued. We have exa- mined the provisions of the licence issued to one of the dealers as typical of the licences issued to such commission agents. There was no require- ment in the conditions of the licence, as they stood in 1947-48 or as they were modified subsequently insisting upon the maintenance of a stock book as such. All that condition 7(b)(i) required was that the dealer or commission agent should specify in his accounts the date on which he received the goods from the principal for sale for ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion agents could not be verified. But then, it was not necessary at all to know the names of the purchasers of these goods in determining the assessment to tax liability under the Act. Under the Act, either the principal or the commission agent would have to pay the tax on the turnover, and it was admitted that the turn- over of the principal could be gathered from the accounts maintained by the commission agents. Nor was it in dispute that the liability of the principal was enforced in these cases, wherever he was liable to pay the sales tax on the turnover of the sales effected on his behalf, by the com- mission agent. All the same the position was that cash bills were not issued to the purchasers. With reference to the issue of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider it impossible enough to comply with the condition of the issue of sales bills. We are satisfied that the nature of the trade is such that it is not reasonably possible to make out sale bills in the rush hours of business to so many customers amidst a good deal of competition. Even if cash bills are insisted upon in this line of business, it would in effect drive the dealers to prepare faked up bills only to satisfy the technical condition of the licence." The learned Government Pleader urged that these findings did not really amount to a positive finding that the condition of the licence was impossible of performance in the case of these petitioners and traders engaged in similar business. We are unable to accept that contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that failure to issue cash bills, thereby contravening clause 8 of the conditions of licence, in no way affected the right of the commis- sion agents to claim the exemption secured to them by Section 8 of the Act. The learned Government Pleader urged that, since the commission agent was claiming the exemption, it was for the commission agent to satisfy every requirement of Section 8 and the requirements of each of the conditions of the licence granted to the commission agent under Section 8 of the Act. The last proviso to Section 8 specifically provides for the burden of proof in such cases. It may not really be necessary to discuss at length the various arguments put forward by the learned Government Pleader regarding the canons of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact, that there has been a substan- tial compliance with such of the conditions of the licence as could be fulfilled. In view of this, it is not necessary to embark upon a discussion whe- ther clause 8 of the licence amounts to a mandatory direction or is merely a directive in its scope. As has been rightly pointed, no universal test can be possible for finding out, which is mandatory and which is directory. But, should a decision on this point be necessary, we are inclined to agree with the Tribunal that condition 8, necessitating the issue of cash bills, is only directory in its scope and not mandatory, and non-observance of such a directory clause in no way vitiates the exemption claimed by the commission agents. Each of these pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
