RAMGOPAL BAPULAL Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THIS is an application submitted by the assessee under Section 44 (2) (b) of the M. P. General Sales Tax Act for a direction to the Board of Revenue to make a reference to answer the questions of law which according to the applicant arise out of the order of the Tribunal.

(2.) THE facts necessary for disposal of this application are that the assessee had effected sales of poppy seeds of the value of Rs. 1,59,802 through adatiyas (agents) M/s. N. A. Trading Company, Neemuch, holding a valid registration certificate. It is alleged that in accordance with the instructions issued by the Sales Tax Commissioner a practice was prevalent that the principal is exempted from payment of tax if the agent's certificate of undertaking the responsibility for payment of tax is produced. According to the assessee, he had furnished such a statement of account, called in local commercial language as adat pana or adat patta from the agent M/s. N. A. Trading Company, Neemuch, in respect of sales of poppy seeds of the value of Rs. 1,59,802 together with certificate of undertaking to account for all such sales and sales tax liability. The assessee had furnished such claims in respect of other sales pertaining to different agents also and similar statement of accounts with declarations. It is contended that so far as the sales effected through M/s. N. A. Trading Company, Neemuch, who are also registered dealers, the assessing authority did not grant exemption and ultimately the Tribunal in its order held that as the appellant has not established that in all these transactions the N. A. Trading Company has been assessed to tax, therefore, the assessee cannot claim exemption. On these facts it is contended that the question of law that arises is as to whether the department was bound to follow the practice which was being followed in all cases on the basis of instructions issued by the Commissioner and as in the case of the assessee also in cases of transactions of other agents exemption was granted. Under these circumstances, it is contended that the questions that arise are :

(3.) LEARNED Government Advocate, on the other hand, contended that the Tribunal had disposed of the matter on the ground that the assessee had not produced any material to show that the commission agent has been assessed to tax in respect of these transactions. According to the learned Government Advocate, it is no doubt true that the agent or the principal both could not be taxed for the same transaction and therefore if the assessee wanted exemption, it was necessary for him to produce evidence to the effect that the agent had already been assessed to tax in respect of these transactions. Learned Government Advocate, however, did not dispute that instructions were issued by the Commissioner on the basis of which a practice prevailed in the department but it was contended that this case has been disposed of merely on the ground that there was no evidence to show that the agent was taxed in respect of these transactions although the learned Government Advocate frankly conceded that a prayer was made by the assessee to that effect which was rejected.