MARIKAR AND CO LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) THE assessee on the file of the Sales Tax Officer, Munnar, has brought before us the order of the Kerala Sales Tax Appellate Tribunal, Additional Bench, Kottayam, with reference to the following six questions which are urged to be questions of law or otherwise rendering the decision erroneous. We do not think so : " 1. Was the Appellate Tribunal justified in holding that factually separate sale between the petitioner and the customers can be inferred ? 2 Was the Appellate Tribunal justified in holding that the dealership agreement is proved with the letter dated July 9, 1991 ? 3 Was the Appellate Tribunal justified in holding that the petitioner is liable to pay sales tax on the turnover of Rs. 2,51,489. 96 representing the value of 5 tempo vans by virtue of Explanation 5 to sub-section (xxi) of section 2 of the Kerala General Sales Tax Act, 1963 ? Is not the aforesaid finding illegal and perverse ? 4 Was the Appellate Tribunal justified in applying the ratio of the decision in Alwaye Agencies case [1988] 70 STC 107 (SC) to the facts of the case and to hold that the petitioner liable in respect of the transactions ? Is not the aforesaid decision inapplicable or at any rate distinguishable ? 5 Whether on the materials available in the case, it can be concluded that these sales by the petitioner to the five purchasers which are exigible to tax under the Kerala General Sales Tax Act. Do not the materials on records point to the contra - they are direct inter-State by Bajaj Tempo Ltd. , Poona in favour of individual customers ? 6 Is not the petitioner entitled to exclude the turnover relating to the sale of 5 tempo vans in the assessment for 1976-77 ?" THE assessee has headquarters at Munnar and branch office at Trivandrum. It is a dealer in automobile parts and spares. THE year in question is 1976-77 and assessment in regard thereto was completed on May 28, 1979 wherein total and taxable turnover was fixed at Rs. 15,00,328. 83 and Rs. 9,92,990 respectively.

(2.) THE Deputy Commissioner, Ernakulam, scrutinised because certain turnover relating to the sale of Bajaj tempo vehicles dealt with by the assessee remained out of the process of original assessment. Acting under section 35 of the Act, by the order dated May 4, 1983 the Deputy Commissioner cancelled the original assessment and ordered reassessment to be done by the Sales Tax Officer, Munnar.

(3.) LEARNED Government Pleader urged and he too reinforced submissions made before the lower authorities, to contend that the material on record presents crystal clear situation that the petitioner-assessee is regularly appointed as an authorised dealer of Messrs. Bajaj Tempo Limited, Poona for Matador four wheelers in the district of Trivandrum, Alleppey, Quilon and Kottayam. Reliance in support is placed in the order dated July 9, 1971 which is the communication from Messrs. Bajaj Tempo Limited, Poona, in favour of the assessee, Messrs. Marikar Engineers Limited, Trivandrum. LEARNED Government Pleader submitted further that for all practical purposes the material on record shows that there are two separate and distinct transactions in point of time, the first one between Messrs. Bajaj Tempo Limited, Poona, with the petitioner-assessee Messrs. Marikar and Company Limited and thereafter on the arrival of the vehicles within the State of Kerala between the petitioner-assessee, Messrs. Marikar and Company Limited and the individual customers which is evidenced from the very letter of appointment dated July 9, 1972 which is itself termed as agreement in proceedings and letter dated January 6, 1976 of the petitioner-assessee Messrs. Marikar and Company Limited addressed to one of the customers together with the agreement dated January 15, 1977 between the petitioner-assessee - Messrs. Marikar and Company Limited and the individual purchasers. LEARNED counsel sought support through the decision of the Supreme Court in Alwaye Agencies v. Deputy Commissioner of Agricultural Income-tax and Sales-tax [1988] 70 STC 107 dealing with the similar situation in the case of Alwaye Agencies acting as the "distributor" of certain chemicals under the agreement of a similar character and on the basis thereof the Supreme Court treating the situation that the assessee would be the purchaser of goods and not a mere agent.