JUDGMENT [ENTITY], J.
1. On an application filed by the department under [SECTION] of the [ACT] (hereinafter referred to as "the Act"), the Board of Revenue has referred the following question of law for the opinion of this Court:
Whether, under the facts and circumstances of the case, 'other charges' collected by the assessee for rendering unspecified services can be treated as commission and whether such commission will not form part of sale price as defined in [SECTION] of [ACT].
2. The facts of the case in brief are that M/s. [ENTITY] (hereinafter referred to as "the assessee") was assessed to tax under [SECTION] of the Act for the period March 24, 1966 to April 11, 1967 (1966-67) by the Commercial Taxes Officer, Circle 'A', Jaipur City by order dated November 5, 1969. By this order an amount of Rs. 24,302.50 shown as, "other charges" was also subjected to tax. The Commercial Taxes Officer in this regard held that the definition of "sale price" was very wide and the assessee was not entitled to take shelter of ignorance. The assessee aggrieved against the order of the Commercial Taxes Officer, filed an appeal before the Deputy Commissioner (Appeals-I), Commercial Taxes, Jaipur. The Deputy Commissioner vide order dated June 13, 1972 dismissed the appeal so far as the above amount is concerned. An argument was raised on behalf of the assessee before the Deputy Commissioner that the aforesaid amount was different from the amount of commission charges. It was submitted that this amount was received on account of services rendered by the assessee to his principals. It was also submitted that the amount of adhat is treated to be a part of the sale price and tax is payable on such amount, but the amount which the assessee has received by way of "other charges" has been shown separately and not as a part of the sale price and as such no tax liability can arise on such amount. The Deputy Commissioner held that the assessee failed to show as to for what services the assessee had received this amount. The assessee has received this amount by way of adhat for the services rendered by him as commission agent. Apart from this, the assessee failed to show as to for what other services the aforefaid amount was received by the assessee. It was thus held that the assessee has tried to evade tax by showing this amount separately and as such the decision given by the Commercial Taxes Officer was upheld.
3. The assessee then aggrieved against the order of the Deputy Commissioner, filed a revision before the Board of Revenue. Before the Board of Revenue it was argued on behalf of the assessee that a commission agent when he agrees to work for his principal as the latter's agent and to obtain for his principal the goods, he undertakes a duty to discharge by purchasing these goods and supplies them to his principal. Such a contract between the principal and the commission agent is not one of sales, but of agency and the transfer of property in the goods is not a "sale" within the meaning of the [ACT]. Learned counsel for the assessee placed reliance on [PRECEDENT]). The Government Advocate on the other hand, had argued before the Board of Revenue that according to the definition of "sale price", commission is included in sale price. He further argued that commission paid to the agent was not a discount within the meaning of the said definition. The learned Chairman of the Board of Revenue held as under :
As for the commission, the decision of the Andhra Pradesh High Court in [PRECEDENT] does not apply to the facts and circumstances of the present case. On the other hand, the decision under the [ACT] cited by the applicant applies to the present case with full force. Commission therefore, does not come under the definition of 'sale price'.
4. The revision was, therefore, accepted and the orders of the Deputy Commissioner (Appeals) as also of the Commercial Taxes Officer were set aside vide order dated May 8, 1975.
5. Aggrieved by this order, the department filed a special appeal under [SECTION] of the Act, which was heard by Division Bench of the Board of Revenue. The learned Division Bench by order dated March 1, 1977 dismissed the special appeal. The learned Division Bench did not consider the contention of the department regarding liability to tax on the turnover of Rs. 24,302.50 shown as "other charges".
6. The department then filed an application under [SECTION] of the Act for referring three questions for the opinion of this Court. The Board of Revenue by order dated January 9, 1978 referred the only question mentioned above for the opinion of this Court and we are called upon to decide the above question only.
7. It was contended by Mr. [ENTITY], learned counsel for the department, that the assessee was wrongly paying tax on purchase price of coke, but should have paid on the sale price. Besides that, the assessee had been charging some amount as "other charges" which during the relevant period amounted to Rs. 24,302.50. The assessee had not included the aforesaid amount in the gross turnover and taxable turnover. The assessee then filed four returns for the period under assessment and also filed revised consolidated return, but the same was not furnished in time according to Rules. The assessee had concealed this amount of Rs. 24,302.50 apart from other transactions also in his turnover and had thus evaded the payment of tax. It was submitted by the authorised representative of the assessee before the Commercial Taxes Officer that it was due to ignorance that tax was paid on purchase price, but as soon as it came to knowledge, he voluntarily filed the revised return and deposited the amount of tax, As regards the above mentioned "other charges" amounting to Rs. 24,302.50 with which we are concerned, it was submitted on behalf of the assessee before the Commercial Taxes Officer that these were charges realised on commission account for the services rendered to his constituents and hence the same should not be included in taxable turnover and no penalty be imposed. It was submitted by Mr. [ENTITY] that the definition of "sale price" as given in [SECTION] of the Act is wide enough to cover the "other charges" also which have been recovered by the assessee from the purchasers, even though it might have been shown separately as commission charges.
8. On the other hand, it was submitted by Mr. [ENTITY], learned counsel for the assessee that the above mentioned "other charges" have been realised by the assessee as commission charges from his principal for agreeing to work for his principal as the latter's agent and for discharging a duty of purchasing the goods and supplying the same to his principal. It was submitted that a contract between the principal and the commission agent is not one of sales but of agency and the transfer of property in the goods is not a sale within the meaning of [ACT]. It was submitted that on the above facts found proved by the Board of Revenue, it has been rightly decided that the amount of "other charges" was not realised but was charged from the principal and as such there was no question of any liability of tax on such amount. It was also submitted by Mr. [ENTITY] that this Court should decide the question of law on the basis of facts found proved by the Board of Revenue and this Court cannot assume or consider other facts which are not contained in the order of the Board of Revenue. Reliance in this regard was placed on [PRECEDENT] [PRECEDENT], [PRECEDENT] and [PRECEDENT].
9. Mr. [ENTITY], learned counsel for the Department, on the other hand, Submitted that the amount of Rs. 24,302.50 shown as "other charges" was realised by the assessee from the purchasers and the Board of Revenue has totally misunderstood the nature of the transaction. There was no question of referring the question of law before this Court in case the amount of "other charges" in question was realised by the assessee from his principal. It was submitted by Mr. [ENTITY] that the nature of the transaction is clearly made out from the order of the Commercial Taxes Officer and the Deputy Commissioner (Appeals) and in any case if this Honourable Court is unable to decide the question of law on the facts stated by the Board of Revenue, then a further direction can be given by this Court under [SECTION] of the Act to send an additional statement of the case setting out the facts in a correct manner. Reliance in this regard is placed on [PRECEDENT] and [PRECEDENT].
10. We have given our thoughtful consideration to the arguments advanced by learned counsel for both the parties and have thoroughly perused the record. A perusal of the order of the Commercial Taxes Officer shows that the assessee was paying tax on purchase price of coke and not on sale price and the account books of the assessee were seized by Shri [ENTITY], the detecting officer. This amount of Rs. 24,302.50 was shown as "other charges" in the purchase price of coke and on this account it was not included in the sale price. The case of the assessee was, as clearly mentioned in the order of the Commercial Taxes Officer as well as before the Deputy Commissioner (Appeals), that the "other charges" were received not by way of adhat, but for rendering other services to his principal. There was thus no dispute that the amount in question was received by the assessee from the purchasers, but he only wanted to contend that it was not amount of commission charges or adhat, but it was for rendering other services to his principal. The assessee in this regard totally failed to show as to what were those other services rendered by the assessee to his principal for which he was charging this amount under the style of "other charges" from the purchasers. Learned Single Member of the Board of Revenue, no doubt, has mentioned the argument of learned counsel for the assessee to show that commission agent when he agrees to work for his principal as the latter's agent and to obtain for his principal the goods and supplies them to his principal, such a contract between the principal and the commission agent is not one of sales, but of agency and the transfer of property in the goods is not a sale within the meaning of [ACT]. The Board of Revenue, however, did not give any finding as to the real nature of the transaction. The facts, therefore, can only be ascertained from the orders of the Deputy Commissioner (Appeals) and the Commercial Taxes Officer. Apart from that, the Board of Revenue in the order dated January 9, 1978 by which reference has been made to this Court has observed as under in para 11 :
In regard to question No. 1, it has been observed by the learned Deputy Commissioner (Appeals) in his order dated 13-6-72 that the assessee was unable to specify the services for which he was collecting 'other charges' from the parties to whom he was supplying goods. In the absence of any clarification from the assessee, the learned Deputy Commissioner held that the amount was being shown as 'other charges' to avoid payment of tax. Whether these 'other charges' would be tantamount to a commission allowed to an agent and whether such commission should or should not form part of the sale price is, we feel, a question of law which should be referred to the Honourable High Court for authoritative pronouncement thereon. Accordingly we agree to make the following reference to the Honourable High Court:
Whether, under the facts and circumstances of the case, "other charges" collected by the assessee for rendering unspecified services can be treated as commission and whether such commission will not form part of sale price as defined in [SECTION] of [ACT].
11. The above observation also shows that the Board of Revenue has referred to the order of Deputy Commissioner (Appeals) in which it was clearly pointed out that the assessee was unable to specify the services for which he was collecting "other charges" from the parties to whom he was supplying goods. There was no question of making any reference at all by the Board of Revenue to this Court if the amount of Rs. 24,302.50 shown as "other charges" was the amount charged by the assessee from his principal and not from the purchasers. In this view of the matter, we do not think it necessary to direct the Board of Revenue to send an additional statement of the case. The facts as found proved from the record are clear that the assessee has collected this amount from the parties to whom he had supplied these goods. It will not make any difference if he was acting as an agent and supplied these goods on behalf of his principal. The question to be determined is whether these "other charges" collected by the assessee for rendering unspecified services can be treated as commission and whether such commission will form part of sale price or not as defined in [SECTION] of the Act. The definition of "sale price" as given in [SECTION] of the Act reads as under :
2. (p) 'sale price' means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged and the expression 'purchase price' shall be construed accordingly :
Provided that when a hire-purchase agreement fructifies into a sale, the market price of the goods on the date on which the goods were transferred under the hire-purchase agreement shall be deemed to be the sale price of the goods so sold.
12. The above definition only allows cash discount as the permissible deduction from the sale price and that also should be according to the practice normally prevailing in the trade. Cash discount is different from trade discount and is allowed when a purchaser makes payment promptly or within the period of credit allowed in consideration of expeditious payment of the sale price. Apart from that, "sale price" means the amount payable to a dealer as consideration for the sale of any goods and also includes any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged. The above definition is thus wide enough to cover the "other charges" which are received by the assessee whether by way of commission or adhat in respect of the goods sold on behalf of the principal acting as his agent. The assessee has failed to explain as mentioned by the Deputy Commissioner (Appeals) that this amount was charged for any kind of services rendered to the principal other than by way of commission or adhat. The Board of Revenue in its judgment, either given by the learned Single Member or by the Division Bench, have not controverted these facts found proved by the Deputy Commissioner (Appeals) and allowed the revision merely by holding that it was an amount of commission charged by the assessee, which had nothing to do with the sale of goods.
13. In view of these circumstances, we hold that under the facts and circumstances of the case, "other charges" collected by the assessee for rendering unspecified services can only be treated as commission and nothing else and such commission will form part of "sale price" as defined in [SECTION] of the Act.
14. The reference is thus answered in the manner indicated above. The parties are left to bear their own costs.