UDAILAL LALCHAND Vs. STATE

JUDGEMENT

(1.) THIS is a revision against the order of the Dy. Commissioner (Appeals) Excise & Taxation Jodhpur dt. 3. 5. 60. We have heard the learned counsel for the parties and examined the record as well. The only point urged in this revision is that wool sold by the applicant through a commission agent could not be treated to be a turn over by the applicant for the alternative that if it was so treated no further sales tax could be charged from the applicant, the same having been charged from the commission agent, because of the commodity being taxable only at a single point. So far as the changeability of the wool only at a single point is concerned learned counsel for the Government agrees; and rightly too, that the tax can be charged only at one place. But the contends that the commission agent had not obtained his exemption certificate and was liable to pay the sales tax and the applicant was also similarly liable because of his having transferred by sale the disputed quantity of wool to the so called commission agent.

(2.) WE have perused order under revision passed by Shri H. G. Mehra Dy. Commissioner Excise & Taxation Jodhpur. He mentions that there was no dispute about the facts of the case. But from the very arguments advanced by the learned counsel for the parties before us there appears to be a dispute about the facts of the case themselves. The applicant alleges that wool had been transferred by him to a commission agent and the learned counsel for the State Shri Bapna denies it. There is nothing on the record by which we can find out as to how the transfer had been made by the applicant. The learned Dy. Commissioner had after narrating the arguments of the learned counsel appearing before him has observed ; "the argument (that at the time of transaction the applicant had not been registered as a dealer and therefore no liability rests upon ) is futile because it is also conceded by the A/r for the appellants (applicant before us) that on an application by him he had been issued a R. C. for the period covered by the transaction itself, clearly, when this commodity is taxable at first point liabity for payment of tax rests on him. As for the argument that the assessing authority has treated sale of such wool as being of the dealer to whom good's were sent for sale it being conceded on behalf of the appellant (applicant) that that dealer was not a commission agent I am inclined to think that the sale by the subsequent dealer was a second sale, and the position of the law being that such goods are taxable at the first point appellant cannot escape liability. I, therefore, decline to interfere". This does not disclose as to what was the point to be decided before the learned Dy. Commissioner and on what grounds what decision had been given by him. Whether he has taken the sale by the applicant to be a sale from a dealer to a commission agent is not also quite clear from his judgment. Whether the sale by the commission agent has been taken by him to be separate sale from a sale on behalf of the applicant himself is also not clear from this judgment. If the commodity was a single point taxable one, as has been conceded by both the learned counsel appearing before us this thing will have to be very clearly found out and established. For the purpose can a certificate of exemption from payment of sales tax for the period during which this transaction was carried out by the commission agent or the applicant as the case may be will have to be brought on record. Similary it will also have to be recorded as to how much quantity has been sold by the applicant to whom and on what terms for that alone would determine his liability to pay tax to the State Government. For purposes of taxing him it will also have to be decided as to how the transaction sought to be taxed comes under the definition of term "sale" given in sec. 2 (e) of the Act stating it very clearly whether the transfer had been for cash or for deferred payment or in what manner. So it will have to be decided in accordance with sec. 2 (f) of the Act how the applicant was a dealer and whether he had supplied the quantity of wool sought to be taxed on commission or for remuneration or otherwise. WE do not find any material of the type in the judgment of the lower court, nor have the learned counsel for the parties been able to point out any such material on the record received from the lower courts. Even the copy of the order of the Sales Tax Officer has not been available on the record.