RAMCHANDRA RAMPAL Vs. STATE

JUDGEMENT

(1.) THE facts are simple. The applicant received gum worth Rs. 8,200 from a firm of Gondia - Narayandas Gourishankar. The latter's instructions were that he should sell it at Amravati - his place of business - at a price of Rs. 60 to Rs. 65 (per ?). If he could not do so, he was to despatch the goods to Narsi Mulji and Company of Bombay. A hundi for the full price was to be drawn on the Bombay firm and the railway receipt was also to be sent to them. The goods could not be sold at Amravati and were in due course, therefore, sent to Narsi Mulji and Company, from whom the full price was also realised.

(2.) THE applicant's contention is that, in effecting the despatches to Bombay, he acted only as an agent of the Gondia firm. It has not been denied that he received his commission for the agency business he transacted. The facts of the case clearly bring him within the definition of "dealer" contained in Section 2(c) of our Sales Tax Act. "Dealer", as defined here, includes also an agent carrying on the business of selling or supplying goods, whether for commission, remuneration or otherwise. It has been contended that the applicant was not the owner of the goods, that he acted merely as the agent of the Gondia firm and that the sale price was also actually received by that firm. It is precisely for that reason that he is an agent - working on a commission basis - and not the principal in the transaction; but the fact of his being a commission agent does not give him immunity from the taxing provisions of our Act.

(3.) THE decision of the Madras High Court referred to above and the definition of "dealer" contained in our Act were borne in mind, when I decided the case Dinanath Mahadeo Dalal v. The State (Appeal No. 47/XXXIII - 7 of 1950; Since reported at page 107 supra). How that case differs from the present one will be clear from the following extracts from my order in the former :- "If the expression 'commission agent' is to be confined to a person just described [as per definition contained in Section 2(c)], it should be clear that it cannot apply to a person like the appellant if we are to go by such facts about him as can be elicited from the record. For, he does not carry on any business of selling or supplying goods; he is hardly more than an intermediary between the seller or supplier on the one hand and the buyer on the other. For the services he renders as such intermediary, he recovers his remuneration either from one or both of the parties. To distinguish him from the 'commission agent' included in the definition in Section 2(c), he could perhaps be simply called as a broker and his remuneration as brokerage." The distinction essentially would be in the fact that a commission agent has dominion over and possession of the goods in which he deals, while the broker, as defined in Dinanath Mahadeo Dalal's case (Reported at page 107 supra), acquires at no time either dominion over or possession of the goods, the exchange of which for valuable consideration he brings about between seller and buyer, generally, in his immediate presence. That ownership in the goods is not essential, but that dominion over and possession of the goods is adequate in a case like the one we are dealing with is a principle that we could accept from the decision of the Calcutta High Court in Staynor and Co. v. Commercial Tax Officer ([1951] 2 S.T.C. 111), because of the very comprehensive definition of "dealer" contained in our Act.