9911796707
TMI Blog1976 (1) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Laik retired from the said business with effect from 1st April, 1968, and respondent No.1 by his order dated 29th April, 1968, accepted petitioner No.1 and the deceased, Narayan Chandra Laik, as owners liable under the Act. It is the case of the petitioners that by a memorandum of agreement dated 31st October, 1967, petitioner No.1 and the deceased, Narayan Chandra Laik along with the aforesaid Ajit Kumar Laik and Sujit Kumar Laik transferred their said business in Bhagran Colliery with effect from 16th October. The first contention of the petitioners relates to the claim arising out of the agreement dated 31st October, 1967. It was contended before the Commercial Tax Officer that in view of the said agreement respondents Nos. 3 and 4 were the transferees of the business and, as such, liable to be proceeded against under the provisions of the Bengal Finance (Sales Tax) Act, 1941. The impugned order dated 4th May, 1968, negatived that contention. The petitioners challenge the propriety of that order. Section 17 of the Bengal Finance (Sales Tax) Act, 1941, provides that where the ownership of the business of a registered dealer is transferred absolutely by sale, gift, bequest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, 1968. Counsel for the revenue further contended that, in any event, even if there was a transfer, the transferor would still remain liable and he relied on the decision of this court in the case of Kshitish Chandra Sarbajna v. State of West Bengal'. In the view that I have taken on the question whether there was a transfer in terms of section 17 of the Act it is not necessary for me to examine the question from this aspect any more. The next ground of challenge relates to the notice dated 17th June, 1969, asking the petitioners to appear at the assessment with relevant evidence. The petitioners contend that in view of the provisions of the Colliery Control Order, 1945, there was no contract of sale between the parties. Therefore, section 2(g) of the Bengal Finance (Sales Tax) Act, 1941, could not be attracted in respect of the transactions that the petitioners had during the relevant period and, as such, the petitioners were not liable to be taxed. The petitioners contend that in respect of all the transactions involved in the notice, the transactions were done in pursuance of the direction of the Coal Commissioner. In this connection my attention was drawn to clause 12E of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax) Act, 1941, in respect of supply of coal. The Supreme Court held that the sale, if any, in this case, was by virtue of section 5(2)(a)(v), and, as such, exempt from liability to sales tax as it was a sale in the course of export. Whether in fact there was a sale in view of the provisions of clause 12E of the Colliery Control Order, 1945, was not raised or canvassed before the Supreme Court. In the case of New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar[1963] 14 S.T.C. 316 (S,C.); A.I.R. 1963 S.C. 1207. , the Supreme Court had to consider certain transactions entered into pursuant to the directions issued by the Sugar Controller of India in exercise of authority under the Sugar and Sugar Products Control Order, 1946, despatching sugar to Madras Province. The Supreme Court held that the transactions of despatches of sugar by the assessee pursuant to the directions of the Controller were not the result of any contract of sale. In calling upon the manufacturing units to supply sugar, the Controller did not act as an agent of the Province to purchase goods. He acted In exercise of his statutory authority. There was manifestly no offer to purchase sugar by the Provin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vinces had to Intimate to the Sugar Controller of India from time to time their requirement who was kept informed by the mills about the supply available. The price was controlled and the Controller directed the supply of a certain quantity from a particular mill to an intending Province. After giving his permit and sending a copy of this permit to each party, the Controller passed out of the picture and the mill supplying and the Province receiving the supply arranged the rest of the affair including the issue of despatch instructions. In that case, the Supreme Court found that such supply did not amount to a sale as to come within the purview of the Bihar Sales Tax Act. In the case of Chittar Mal Narain Das v. Commissioner of Sales Tax[1970] 26 S.T.C. 344 (S.C.); A.I.R. 1970 S.C. 2000., the Supreme Court was dealing with sales under the U. P. Sales Tax Act and the question was whether sales made to the Regional Food Controller under the U. P. Wheat Procurement (Levy) Order, 1959, were sales within the meaning of "sale" under section 2(h) of the U. P. Sales Tax Act. The Supreme Court observed that a sale predicated a contract of sale of goods between persons competent to contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills Ltd. v. State of Mysore[1972] 29 S.T.C. 246 (S.C.). There the Supreme Court was concerned with the Sugarcane Control Orders and other statutory orders under which a minimum price of sugarcane was fixed and reserved specific areas for the factories. The Supreme Court considered whether there was mutuality present in the transactions and whether there was sale of sugarcane in that case. The Supreme Court held that the orders regulating supply and distribution of goods under Control Orders in a State did not absolutely impinge on the freedom to enter into contract. Delimiting areas for transactions or parties or denoting prices for transactions were all within the area of individual freedom of contract with limited choice. In the case before the Supreme Court the parties were certain and defined; the property in the goods was transferred from the grower to the factory and there was consideration for the transfer. The statutory orders required the parties to enter into agreements and the agreements contained Intrinsic evidence that the growers agreed to sell and the factories agreed to buy. There was offer, inspection and appropriation of goods to the contract. The mutual consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as a general rule be express. It may be implied from their language or from their conduct; may be signified by a nod or a gesture, or may even be inferred from silence in certain cases; as if a customer takes up wares off a tradesman's counter and carried them away and nothing is said on other side; the law presumes an agreement of sale for the reasonable worth of the goods. But the assent must in order to constitute a valid contract, be mutual and intended to bind both sides. It must also co-exist on the same moment of time.' The assent must be mutual and bind both sides. The proposal by one man must be accepted by another and this acceptance must be unconditional. The assent must be communicated to the other party or some act must be done which the other party has expressly or impliedly offered to treat as a communication. Judged by these standards in the forefront exists the agreement between the parties in the present case. The statutory orders required parties to enter into agreements. The parties did in fact enter into agreements. The agreement contains intrinsic evidence that the growers agreed to sell and the factory agreed to buy goods." In the case of Khas Dharmaban ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
