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TMI Blog1976 (5) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... order of A.C. (J.)?" The assessee, a firm, carried on business in timber and firewood, etc., as a commission agent. No return was filed nor any tax was deposited. Sri Achal Singh, one of the partners of the firm, appeared before the Sales Tax Officer on 18th March, 1976. His statement was recorded on oath wherein he stated that the firm worked as selling agent in which capacity they sold timber and firewood, etc., of their constituents and charged their commission, etc. By means of an application it was admitted that it sold timber of their ex-U.P. principals. The assessee regarded himself as a commission agent as is apparent from form No. 14 and never disputed his capacity as a commission agent even at the time of survey and inquiry. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,646.04 was on a question of law and, as such, it was not binding. According to him, the question whether the assessee was a dealer liable to sales tax or not was a question, which was to be determined on the facts of each case and the mere admission of the assessee that he was liable to pay sales tax will not make him a dealer and the appellate court in dismissing his appeal committed an error of law. He has relied on a decision reported in Banarsi Das v. Kanshi Ram A.I.R. 1963 S.C. 1165. The principle that admission on a question of law does not opearate as estoppel needs no discussion. The question however in every case is whether the admission is such as would constitute an admission on a question of law or on a question of fact. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate court had a discretion to permit the assessee to add the grounds of appeal and after considering the facts of the case it might refuse to exercise its discretion in favour of the assessee. Mr. V.D. Singh, appearing on behalf of the Commissioner, Sales Tax, had placed reliance on a decision reported in Kanpur Vanaspati Stores v. Commissioner of Sales Tax[1973] 32 S.T.C. 655 (S.C.). It has been observed by their Lordships of the Supreme Court: "What is urged by the learned counsel is that whatever might be the facts admitted in the return and whatever might be the admissions made before the assessing authority it was open to the assessee to take a different stand in its memorandum of appeal and what is relevant for the purpose of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have become payable under rule 41(2), it means that the admission that has got to be taken into consideration is that made before the assessing authority and not before the appellate authority. That apart, we do not think that the stand taken by the appellant before the appellate authority can be considered as a bona fide stand. We are of the opinion that the contention taken by the appellant before the appellate authority that it cannot be brought within the scope of section 3-A of the Act was an afterthought. No such contention was taken before the assessing authority. If the assessee believed that contention to be true it would not have collected from its purchasers the tax at the rate of one anna per rupee." This decision settl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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