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TMI Blog1970 (3) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ears involved are 1962-63 and 1963-64. The assessee was an auctioneer. He conducted auctions of trees, fruit crops, unserviceable materials and household goods of certain Government departments. He was assessed on his turnover relating to the auction of trees and unserviceable materials and household properties. The assessee filed an appeal and urged that since, in view of the contract between him and the Government departments, he had no authority to sell, he was not a "dealer" as defined by the U.P. Sales Tax Act and was hence not liable to sales tax. The Judge (Appeals) accepted this contention and annulled the assessment. The Commissioner of Sales Tax felt aggrieved and filed a revision. The Judge (Revisions) held that after the amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spot. The departmental technical staff was to guide the assessee on the point whether the articles should be auctioned in lots or individually. The assessee has nothing to do with the acceptance or rejection of the bids. The agreement also provided that the money received as 25 per cent. security deposit would be directly received in the Government account and the assessee will have nothing to do with it. The assessee was to be paid a commission of 0.50 p. per cent. of the amount fetched by the articles auctioned and only after the total sale proceeds are credited to Government. It is clear that the auctions were conducted by the assessee in accordance with these terms of the contract. Under it he had no authority to accept the bids made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reject them. Such an auctioneer would not, in our opinion, come within the purview of the explanation so as to be termed as a "dealer". In Zackria Sons Private Limited v. State of Madras[1965] 16 S.T.C. 136., the Madras High Court was faced with a similar situation. It was held that the question whether an auctioneer is a dealer has to be determined not solely by reference to the fact that he described himself as an auctioneer, but has to be considered in the light of the particular contract between him and the purchaser and the surrounding circumstances. The liability to tax is attracted only to a person who carried on the business of buying and selling, supplying or distributing the goods and this condition has to pre-exist before any o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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