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TMI Blog1970 (12) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to this turnover. The contention of the petitioner is that the transactions relating to this turnover cannot be said to be sales and therefore they are not exigible to any sales tax. Though in the writ petition the liability of the petitioner to pay additional tax of one-fourth per cent. on the entire turnover as provided under section 5-A of the Andhra Pradesh General Sales Tax Act was questioned that contention was not pressed before us by the learned counsel appearing, for the petitioner at the time of arguments. Therefore, nothing need be considered about it in this judgment. The only point that was argued before us is with regard to the liability of the petitioner to pay sales tax on the turnover of Rs. 4,82,986.12 as mentioned above. The transactions in question relating to the said turnover of Rs. 4,82,986.12 have taken place as a result of the requisitioning under the Requisition Order referred to above. In that Requisition Order the expression "stockholder" is described as meaning every person who has in his possession or control forty quintals or more of paddy or twenty-five quintals or more of rice. It is provided under clause 3 of the Requisition Order that every st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. (2) The wheat required to be sold to the State Government under subclause (1) shall be delivered by the licensed dealer to the Controller or to such other person as may be authorised by the Controller to take delivery on his behalf." The above clause in the U.P. Wheat Procurement (Levy) Order and clause 4 of the Requisition Order with which we are now concerned are in similar terms so far as the liability of the dealers is concerned to supply the requisitioned stocks at controlled prices. The question that arose in that case before the Supreme Court was whether the assessees, who were dealers in foodgrains, were liable to sales tax under the U.P. Sales Tax Act, 1948, on the value of the quantities of wheat supplied by them to the Regional Food Controller in compliance with the Order. The Supreme Court held that the Order ignored the volition of the dealer, and the source of the obligation to deliver the specified quantities of wheat and to pay for them was not in any contract but in the statutory Order. The Supreme Court said that assuming that the Controller might designate the place of delivery and place of payment of price at the controlled rate, and the licensed dealer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are elements of a bargain or contract of sale, the payment or promise of payment of price, the delivery of goods and the actual passing of title. Each of the above elements is essential to a transaction of sale. The Supreme Court in its judgment referred to above has also considered the cases, Indian Steel & Wire Products Ltd. v. State of Madras[1968] 21 S.T.C. 138 (S.C.). and Andhra Sugars Ltd. v. State of Andhra Pradesh[1968] 21 S.T.C. 212 (S.C.). about which reference was made in the order of the Assistant Commissioner of Commercial Taxes. In Indian Steel and Wire Products Ltd. v. State of Madras[1968] 21 S.T.C. 138 (S.C.)., the taxpayer supplied certain steel products to various persons in the State of Madras pursuant to the directions given by the State Controller exercising powers under the Iron and Steel (Control of Production and Distribution) Order, 1941. The authorities of the State of Madras assessed the turnover of the taxpayer resulting from these transactions to sales tax under the Madras Sales Tax Act. The taxpayer contended that the transactions of supply did not result in sales and were on that account not exposed to sales tax, because steel products were supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax, U.P.[1970] 26 S.T.C. 344 (S.C.). In this connection the learned Government Pleader has brought to our notice a Bench decision of this court dated 31st March, 1970, rendered in M/s. Kotha Narasimham Amburi Kotaiah and Others v. State of Andhra Pradesh and Others (W.P. Nos. 1981 of 1966 etc. batch dated 31st March, 1970)[1971] 27 S.T.C. 191. There also the learned Judges were considering supplies made as a result of the Andhra Pradesh Paddy and Rice (Declaration and Requisition of Stocks) Order, 1964. On the facts and the circumstances obtaining in those transactions, the learned Judges came to the conclusion that the rice millers (the assessees) and the retail dealers to whom the supplies were made were entitled to mutually agree amongst themselves in respect of the supplies, time and the manner of transport and the delivery of the goods and the prices payable under the contract and, therefore, though the agreements to purchase rice by the retailers and the sale by the rice millers were superimposed by the Control Order, the transactions must none the less be held to be sales as they were entered into by the parties according to law but not vitiated by any fraud, misrepr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into between the assessee and the dealers to whom the deliveries were made with regard to any of the essentials of "sale". When the supplies were made to the Government under the provisions of the Requisition Order in question there is no element of contract because they were made compulsorily and at prices controlled without any option on the part of the assessee either with regard to the quantities or the prices at which they have to be supplied. That means there is no volition or choice on the part of the assessee with regard to the fundamentals of a sale transaction. If that is so, from the discussion of the Supreme Court decisions, particularly the decision in Chittar Mal Narain Das v. Commissioner of Sales Tax[1970] 26 S.T.C. 344 (S.C.)., it is clear that the transactions relating to the turnover in question did not become sales exigible to any sales tax. Accordingly we hold that the petitioner is not liable to pay sales tax on the turnover of Rs. 4,82,986.12. In the result, the writ petition is allowed and the order of the assessing authority as confirmed by the Assistant Commissioner of Commercial Taxes to the extent indicated above is quashed. The respondents will pay t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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