ASSOCIATED AGENCY Vs. STATE OF KERALA

JUDGEMENT

(1.) These writ petitions been connected, because some common legal issues arise in all the four. In addition, another issue is shared by two out of the aforesaid petitions. The turnover in O. P. 164/57 is Rs. 2,01,459-8-11, on which Rs. 3,147-12-11 had been assessed as the sales tax, because the petitioner had during 1953-54, sold rubber to Messrs. Dunlops Rubber Co., which commodity been delivered at the purchaser's godown in Fort Cochin. As the Port, during the period formed part of Madras State, the assessment against the writ petitioner had been made under the Madras General Sales Tax Act, 1939, though the order had been made on March 28, 1957, i. e., after the reorganisation of the States. One of the grounds taken against the assessment is that the petitioner had only sold what belonged to Glenrock Estate and Velimalai Estate, and should not be made personally liable because the ownership or custody of the commodity sold had at no time been with the petitioner. The averment of facts, on which the legal grounds had been raised, can be very briefly stated. The purchaser had the purchasing department at Kottayam, which was in the erstwhile Travancore - Cochin State ; and the Officer in charge was empowered to buy rubber from the local dealers. That Officer had placed orders for the supply at the godown of Messrs. Dunlops & Co., in Fort Cochin of specified quantities and grades of rubber at specified prices, which orders were accepted by the writ petitioner, who directed the principal to supply from the estates the rubber directly to the Dunlop's godown, and the officer directed the godown keeper to receive the specified quantity of rubber from the Estates in anticipation of the delivery. The next stage in the bargain was that on receipt of the goods, the godown keeper issued weighment receipts, which were handed, along with invoices for payment by Messrs. Dunlop's officer at Kottayam. The payments were then made, and the officer issued forms of contract in duplicate, showing the concerned seller-estate. The forms also contained a condition that the goods should not be deemed to have been accepted unless and until they have been examined; and, if upon examination, they be found not in conformity with the contract, the company reserved the right to reject all or any of them. On the aforesaid averments the following four legal grounds have been taken.

(2.) Only three out of the four grounds stated above have been raised in the next two writ petitions, because there the petitioners, who are sellers, are not agents. The writ petitioner in O. P. 165 of 1957 states that sales of rubber to Messrs. Dunlops Co., on their own and on behalf of the Firestone Tyre and Rubber Co., had been for consumption in the factories in Calcutta and Bombay and therefore they are outside and inter State. The turnover in this writ petition is Rs. 1,29,108-0-2, on which the tax assessed is Rs. 2,017-5-0, and the period is (he assessment year 1953-54. The petitioner avers that the officer in charge of the purchasing department at Kottayam placed orders with the local dealers for the supply at Dunlop's godown in Fort Cochin of specified quantities and grades of rubber at specified prices for onward despatch, in pursuance of such oral agreement, rubbers were despatched and delivered at Dunlop's godown in Fort Cochin, in anticipation of the delivery, the officer advised the godown keeper to receive the specified quantities of rubber from the concerned dealer, on the goods having been received at the godown, the keeper issued weighment receipts, which were handed over along with the invoice to the officer at Kottayam, payments for the goods been made then and forms of contract issued, containing conditions similar to the one already stated. The remaining ground taken in this writ petition for vacating the assessment is that under the States Reorganisation Act, the Kerala State is not authorised to recover, or to levy the tax, because such levies would not be in arrears due to no demands having been earlier made. Similar grounds have been taken in O. P. 171 of 1957, where the writ petitioner had sold rubber stored in the petitioner's godown at Kottayam to Messrs. Dunlop in 1953-54, both for purchaser's consumption at the factory in Calcutta and as agent for Firestone Tyre and Rubber Co. The turnover is Rs. 1.22,356-10-2 and the tax amount is Rs. 1,911-13-2. The averment of facts in this petition are similar to those in O. P. 165 of 1957

(3.) Lastly the petitioner in O. P. 196 of 1957, claims that he was doing business as a commission agent for various estate owners in the Travancore - Cochin State, on March 27, 1957, been assessed on turnover of Rs. 2,78,863-4-0 to pay a tax of Rs. 4,357-3-10 for the assessment year 1953-54. He claims that Rs. 47,275-3-0 out of the aforesaid turnover represent the value of the rubber sold on his own account to Messrs. Dunlops Rubber Co., and Rs. 2,31,588-1-0 to be sales by him as commission agent on behalf of several estate owners. The averments of facts in this petition about how the orders were placed, how the goods were despatched, how the payments were made, and how formal contracts were executed, are similar to those in the other petitions, and the grounds taken against the assessment are also identical to those taken in O. P. 164 of 1957.