9911796707
TMI Blog1955 (9) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... losed Exhibits A, A1, A2 and A3. The assessee then moved the Assistant Commissioner of Commercial Taxes, Chota Nagpur Division, by 4 appeal petitions filed on 23rd March, 1949, enclosed Exhibits B, B1, B2 and B3. The learned Assistant Commissioner by his order dated 15th March, 1950, rejected the appeals and confirmed the assessment. His order dated 15th March, 1950, is enclosed Exhibit C. The assessee then moved the Commissioner of Sales Tax, Chota Nagpur Division, in revision. The four revision petitions filed on 5th July, I950, before the Commissioner are enclosed Exhibits D, D1, D2 and D3. The learned Commissioner by his order dated 12th May, 1951, dis- missed the petitions. His order of 12th May, 1951, is enclosed Exhibit E. The assessee then came up in second revision before the Board of Revenue, Bihar, by 4 petitions filed on 26th July, 1951, enclosed as Exhibits F, F1, F2 and F3. The Board by its order dated 13th August, 1951, rejected the petitions summarily for default. But the petitions were subsequently restored and parties heard on merits and rejected the petition by its orders dated 13th May, 1952, with the observation that the amounts doubly paid should be excluded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if he was dissatisfied with the orders of the Sales Tax Officer demanding filing of returns. It being held that the assessee was a dealer within the meaning of section 2(C) of the Bihar Sales Tax Act, the learned Sales Tax Officer was satisfied about the liability of the petitioner to pay sales tax on his transactions, viz., sale of coal, on the ground that all his transactions were sales as contemplated under the provisions of the Act. As desired by the Court, the Board refers the following questions of law for an authoritative decision "(1) Whether the petitioner M/s. Karamchand Thapar and Brothers is a 'dealer' within the meaning of section 2(c) of the Bihar Sales Tax Act, and (2) whether the transactions in question are ' sales ' within the meaning of section 2(g) of the Act, and (3) whether the petitioner is liable to be taxed on these transactions." Rajeshwari Prasad and Jagat Narain Prasad Sinha, for the petitioners. The Government Pleader, for the State of Bihar. JUDGMENT KANHAIYA SINGH, J.-Messrs. Karamchand Thapar & Bros. (Coal Sales) Ltd., the assessee, have their head office in Calcutta and a branch office at Ranchi. They were assessed to sales tax by the Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that no question of law was involved and rejected the application. Then they filed petitions before the High Court for a direction to the Board to state a case under section 25(3) of the Bihar Sales Tax Act, 1947. The High Court directed the Board of Revenue to state a case on the following question of law: "Whether the petitioner, Messrs. Karamchand Thapar & Bros., is a 'dealer' within the meaning of section 2(c) of the Bihar Sales Tax Act, and whether the transactions in question are ' sales ' within the meaning of section 2(g) of the Act and whether the petitioner is liable to be taxed on these transactions." The assessee 'has reiterated the grounds which they urged before the Sales Tax Authorities. Their main contention is that they did not deal in coal and that they were simply middlemen and arranged for despatch of coal from the collieries to the intending buyers. There was no investigation by the Sales Tax Authorities as to the nature and character of the business carried on by the assessee. They held, how- ever, that since the assessee was a registered dealer and the registration was in operation, the assessee was liable to pay tax on its sales of coal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on sales. In other words, if a transaction does not constitute sale, there can be no valid imposition of sales tax, apart altogether from the fact whether one is a dealer. A person may be a dealer and still he may not be liable to sales tax if the transactions done by him were not sales. The question is what is "sale." As defined by section 2(g) of the Act, "'sale' means, with all its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge or pledge." In order, therefore, to constitute sale, there must be a transfer of property in goods. It is now well-settled that "sale'' in the Bihar Sales Tax Act has not been used in the popular sense, as laid down by this Court in the case of State of Bihar v. The Bengal Chemical and Pharmaceutical Works Ltd.(1), and "sale" according to the definition in the Bihar Sales Tax Act, 1944, means in effect the transfer of property in goods. The definition of "sale" in the Bihar Sales Tax Act, 1947, is practically the same as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to double taxation, since the collieries supplying the coal had already paid the tax and will, therefore, be illegal by virtue of the provisions of section 8 of the Bihar Sales Tax Act, which prohibits double taxation in the same series of transactions. This is purely a question of fact, and it has been found unanimously by the Sales Tax Officer, the appellate authority and the Board of Revenue that there was no evidence at all to prove payment of the tax by the collieries. When there are no sufficient materials on the record to establish the payment of the tax by the collieries, there is no question at all of double taxation, and the argument of the learned advocate must be overruled. In these circumstances, I would answer the question referred to the Court as follows: The assessee is not a dealer within the meaning of section 2(C) of the Bihar Sales Tax Act, and the transactions in question do not constitute sales within the meaning of section 2(g) of the Act, and, therefore, the petitioners are not liable to be taxed on these trans- actions. The petitioners will be entitled to costs: hearing fee Rs. 200.
DAS, C. J.-I agree.
Reference answered accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
|
