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TMI Blog1969 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... om the respective owners, the assessee issues a receipt stating that the goods are for sale by outright public auction or private sale. It also notifies that it would be charging a commission of 12 per cent. besides deducting the usual charges. The goods are kept at the risk of the owner and the assessee does not take any responsibility for its loss, damage or breakage when in its custody. Thereafter, the owner is intimated about the date of auction and it is common ground that in most cases the owners are not present, though in some rare cases some of them are. One of the conditions of sale of which the owner has notice, is that the purchaser should pay the sales tax as an extra item. Thus, the assessee, on every occasion of sale of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner that they could not be characterised as dealers as defined under the Act as they cannot be deemed to be carrying on business in a commercial sense. It appears that a vague contention was hesitantly made before the assessing authorities, that the transactions in question were on behalf of dealers and non-dealers and therefore the relief ought to be given at least in cases where the goods transmitted by the assessee to the respective buyers belong to private parties who were not dealers or to those whose turnover did not come within the exigible limits as prescribed. In that connection, the Appellate Assistant Commissioner observed as follows: "It may be stated at once that the Advocate does not specifically separate the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain commission, but they were persons who were to be treated as dealers not only under the common law but also under the provisions of the Madras General Sales Tax Act. As against the order of the Tribunal in the above three appeals, the present tax cases have been filed. Again before us, the legal contention is that an auctioneer who is popularly understood to deal with others' goods, cannot be said to be a dealer by the mere fact that he effects a sale in his show-room and that it should be established that the owner whose goods were being dealt with and sold by the assessee is a dealer himself in the eye of law, for the assessee to suffer the sales tax or to collect the same from the buyer. Mr. V.K. Thiruvenkatachari the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct were only pressed into service and they were rightly not accepted by the Tribunal. In fact, section 2(g) of the Madras General Sales Tax Act, 1959, which defines a dealer, includes an auctioneer who carries on the business of buying, selling or distributing goods on behalf of any principal. The word "any" has a special signification. But, it is unnecessary for us to consider the same in the instant case. Suffice it to say that an auctioneer who acts on behalf of his principal and who has the requisite authority to transfer the property in the goods entrusted to him for sale, is certainly within the mischief of the definition of a dealer. As already stated, the liability of an agent is no doubt co-extensive with the principal. It would, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of the assessing authority, who, by then, issued a notice to the auctioneer therein proposing to assess him as a dealer. The learned Judges after exhaustively referring to the law relating to auctioneers and the transactions indulged in by them, ultimately came to the conclusion that the auctioneer therein should be given an opportunity to raise the several pleas before the court and to adduce material or evidence in support of his several contentions, and when raised, the same be determined in accordance with the principles set out by them in their judgment. We may incidentally observe that though the proceedings were initiated with a request for the issue of a writ of prohibition, ultimately a writ of certiorari was sought as in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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