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TMI Blog1970 (7) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the petitioner, it collects amounts by way of tax in addition to the price of the liquor and the total amount collected by way of tax during the relevant period amounted to Rs. 42,839.75. Section 5 of the Act levies tax on the taxable turnover of every dealer. Rule 6(4) of the Mysore Sales Tax Rules, 1957, hereinafter called the "Rules" provides for determination of the taxable turnover of a dealer. Sub-rule (4) of the said rule provides that in determining the taxable turnover, the amount specified in clauses (a) to (k) shall, subject to the conditions specified therein, be deducted from the total turnover as determined under clauses (a) and (b) of sub-rule (1). Clause (h) provides for the deduction of all amounts collected by way of tax under the Act by a dealer. One of the prerequisite conditions for entitling a dealer to collect any amount by way of tax is that he should be a registered dealer. That the petitioner satisfies the said condition is not disputed. The Commercial Tax Officer who is the assessing authority held, on enquiry, that in respect of retail sales of liquor, no sales tax was charged in the bills issued by the petitioner; but later on, the amount of sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned earlier, the petitioner had quoted and collected an all inclusive price. For the purpose of finding out what packing charges he had to incur, we have to wholly depend on his return. So far as tax collected is concerned, as mentioned earlier, it was not collected by way of tax. In these circumstances, the Tribunals have opined that the amount realised by the petitioner is a price realised by him in respect of the goods sold by him and therefore the same is liable to be included in his turnover. This conclusion appears to us to be correct." It is clear from a reading of the above decision that it was found as a fact that the dealer in the said case had quoted and collected an all inclusive price and therefore it was held, in our opinion rightly, that the dealer was not entitled to deduction of any amounts under rule 6(5)(a) as it then stood which corresponds to rule 6(4)(h) as it now stands. In Mysore Auto Parts v. State of Mysore S.T.A. No. 6 of 1964 decided on 27th January, 1966., the order of this court quoted in full the order of the Commissioner of Commercial Taxes against which the appeal had been preferred. The order of the Commissioner stated that "if a dealer doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sales tax and as such can claim deduction of the amount so collected provided that fact is established by (a) the contract of sale, (b) the invoice of sale, or (c) the cash memo. It will not be sufficient if the dealer in his account books bifurcates the sales tax from the sale price and enters the amounts separately where the bill or the contracts do not show that there . is a stipulation for payment of sales tax in addition to the price of the goods. Sri K. Srinivasan, learned counsel who was allowed to intervene on behalf of International Cotton Corporation (P.) Ltd., submitted that unless the dealer charges the purchaser sales tax separately, he cannot be said to have collected any amount by way of tax and that the purchaser should have notice of the price of the goods charged exclusive of sales tax. According to his submission the tax portion of the consideration of the price should be particularised as such and collected. Sri T. Subba Rao who intervened on behalf of Messrs Lipton (India) Ltd., submitted that it is not necessary that the tax portion should be shown in the bills separately and it is sufficient if the dealer were to establish from the evidence that the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y condition in order to entitle the dealer to claim deduction of all amounts collected by way of tax under the Act. Section 26 provides for the manner of maintenance of accounts by the dealers. Section 27 provides that every dealer whose turnover exceeds Rs. 20,000 in any year shall, in respect of all goods sold by him issue a bill or a cash memorandum to the purchaser and shall keep the counterfoil of the bill or cash memorandum. Rule 27-A prescribes the particulars to be shown in the bill or cash memorandum. It provides that the bill shall contain the following particulars: (1) Full name and address of the selling dealer with his registration certificate number, (2) Serial number of the bill or cash memorandum and date, (3) Name and address of the buyer, if he is a dealer, and (4) Description, quantity and value of the goods. If the intention of the rule is that in order to claim deduction of the amount collected by way of tax by a dealer the sales tax amount should be separately shown in the bill or cash memorandum, then rule 27-A would have made a specific provision to that effect. In the absence of any condition specified in sub-rule (4) of rule 6 and rule 27-A, we are unable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. It appears to us that the true effect of section 8-B and the Turnover and Assessment Rules is that (a) a registered dealer is enabled to pass on the tax, (b) an unregistered dealer cannot do so, and (c) the amount collected by way of tax is to be shown separately, for it has to be paid over to Government." Interpreting the expression "collected by him by way of tax", the learned Judge stated that it is merely descriptive of the amounts so collected. In Corpus Juris Secundum, Volume 12, pages 870-871, the expression "by way of" has been been explained thus: "By way of: It has been said that in a certain connection the phrase is idiomatic and difficult of rendition into exact phraseology, but that it may be taken to mean 'as for the purpose of', 'in character of', 'as being' which are characterised as synonymous phrases;......................" The clause "all amounts collected by way of tax under the Act by a dealer" in rule 6(4)(h) and section 18, in our opinion, means all amounts collected in the character of or as being tax, under the Act. The evidence concerning the transaction must show that the buyer had agreed to pay sales tax in addition to the price and the seller's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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