Case: Jain Jari Stores, Madras Vs. State of Madras

sale did not fall within the proviso. The High Court observed that even though the agent of a non-resident seller who negotiated the sale and delivered the documents of title may be a dealer within the meaning of section 14-A(i) "the representative character of the agent with which he is clothed under section 14-A of the Act cannot be read into the first proviso to section 3(2) of the Act to enable" the assessee "to contend that the sale in his favour was the first sale from another dealer in the State." The High Court however assumed that the sale by the non-resident seller took place within the State of Madras and also assumed that the goods had been sold to the assessee after they were imported into the State of Madras. 6. There is no dispute that the goods in respect of which exemption was claimed were imported goods. But to qualify himself for exemption from liability the assessee had to prove that the goods were sold to him in the State of Madras, that they were sold by a dealer who was residing in the State of Madras, and that the sale to him was after the goods were imported. It was not disputed that the agent of the non-resident owner of the goods was residing within the State of Madras, but it is not clear on the record whether the goods were sold after they were imported into the State of Madras, nor that the sale had taken place in the State of Madras. Nor is it clear on the record whether the agent of the non-resident could be regarded as a dealer within the meaning of section 2(b) of the Act. The Sales Tax Appellate Tribunal and the High Court have not recorded any findings on those questions. The mere fact that the owner of the goods purchased by the assessee was a non-resident is by itself not sufficient to dispose of the claim made by the assessee. If the non-resident sold the goods within the State of Madras through commission agent, broker, del credere agent, auctioneer, or any other mercantile agent, who carries on such business, the sale would be by a dealer within the State. If, therefore, the goods were sold within the State of Madras by an agent of the kind mentioned in section 2(b) explanation of the non-resident owner, the agent being resident of the State of Madras, the sale would be deemed to be the first sale, provided the condition about the sale after import of the goods into the State of Madras was fulfilled. Unfortunately no investigation of facts has been made either by the Tribunal or by the High Court on these important questions about the authority of the agent negotiated the sale transactions. They have also not determined whether the property in the goods passed within the State of Madras so as to constitute a sale effected in the State of Madras, nor has it been found whether the goods were sold after they had been imported within the State.It may be observed that a resident agent of a non-resident carrying on the business of buying and selling goods within the State of Madras may, for the purposes of the Act, be deemed by virtue of section 14-A(i) to be "the dealer", and liable to pay tax. But the fiction created by section 14-A(i) making an agent of a non-resident a dealer, for imposing upon him the liability of a dealer, does not make every agent a dealer for all the purposes of the Act within the meaning of section 3(2). To claim exemption under section 3(2) on the plea that he was not the first dealer, the assessee had therefore to prove that the agent of the non-resident who negotiated the sale of goods to him was an agent of the kind mentioned in section 2(b). On this part of the case, there is no finding. 7. In the absence of clear findings recorded by the taxing authorities and the High Court, we are unable to decide this appeal. The averments made by the assessee in paragraph 5 of the affidavit which we have already set out are also vague and indefinite, and in paragraph 6 only a proposition of law is asserted on certain assumptions. 8. The judgment of this Court in M/s. Gilda Textile Agency, Vijayawada v. The State of Andhra Pradesh and Another ([1962] 13 S.T.C. 738.), on which counsel for the assessee relied, does not assist him. In that case M/s. Gilda Textile Agency, who were indenting agents in Andhra Pradesh for cloth merchants residing outside Andhra Pradesh, booked orders, forwarded them to the principals, and received commission on sale of goods despatched to Andhra Pradesh. This Court, agreeing with the High Court, held that the non-resident principals were carrying on the business of selling goods in Andhra Pradesh and that the appellants as their agents were liable to be assessed to tax under section 14-A of the Act. But there is nothing in the present case to show that the non-resident owners of goods were carrying on business of selling goods in the State of Madras through their agents.We are of the view, having regard to the circumstances, that the case should be remanded to the High Court to determine the questions whether the agent of the non-resident supplier was the agent covered by the explanation to the definition of the word "dealer" in section 2(b), whether the property in the goods purchased by the assessee passed within the State of Madras, whether the sale was effected by a dealer resident within the State of Madras, and whether such sale took place after the goods were imported within the State of Madras. The High Court after determining those questions will proceed to dispose of the claim made by the assessee according to law. The High Court may, if it is necessary, call for a finding from the taxing authorities on those questions.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. There is no dispute that the goods in respect of which exemption was claimed were imported goods. But to qualify himself for exemption from liability the assessee had to prove that the goods were sold to him in the State of Madras, that they were sold by a dealer who was residing in the State of Madras, and that the sale to him was after the goods were imported. It was not disputed that the agent of the non-resident owner of the goods was residing within the State of Madras, but it is not clear on the record whether the goods were sold after they were imported into the State of Madras, nor that the sale had taken place in the State of Madras. Nor is it clear on the record whether the agent of the non-resident could be regarded as a dealer within the meaning of section 2(b) of the Act. The Sales Tax Appellate Tribunal and the High Court have not recorded any findings on those questions. The mere fact that the owner of the goods purchased by the assessee was a non-resident is by itself not sufficient to dispose of the claim made by the assessee. If the non-resident sold the goods within the State of Madras through commission agent, broker, del credere agent, auctioneer, or any other mercantile agent, who carries on such business, the sale would be by a dealer within the State. If, therefore, the goods were sold within the State of Madras by an agent of the kind mentioned in section 2(b) explanation of the non-resident owner, the agent being resident of the State of Madras, the sale would be deemed to be the first sale, provided the condition about the sale after import of the goods into the State of Madras was fulfilled. Unfortunately no investigation of facts has been made either by the Tribunal or by the High Court on these important questions about the authority of the agent negotiated the sale transactions. They have also not determined whether the property in the goods passed within the State of Madras so as to constitute a sale effected in the State of Madras, nor has it been found whether the goods were sold after they had been imported within the State.It may be observed that a resident agent of a non-resident carrying on the business of buying and selling goods within the State of Madras may, for the purposes of the Act, be deemed by virtue of section 14-A(i) to be "the dealer", and liable to pay tax. But the fiction created by section 14-A(i) making an agent of a non-resident a dealer, for imposing upon him the liability of a dealer, does not make every agent a dealer for all the purposes of the Act within the meaning of section 3(2). To claim exemption under section 3(2) on the plea that he was not the first dealer, the assessee had therefore to prove that the agent of the non-resident who negotiated the sale of goods to him was an agent of the kind mentioned in section 2(b). On this part of the case, there is no finding7. In the absence of clear findings recorded by the taxing authorities and the High Court, we are unable to decide this appeal. The averments made by the assessee in paragraph 5 of the affidavit which we have already set out are also vague and indefinite, and in paragraph 6 only a proposition of law is asserted on certain assumptions8. The judgment of this Court in M/s. Gilda Textile Agency, Vijayawada v. The State of Andhra Pradesh and Another ([1962] 13 S.T.C. 738.), on which counsel for the assessee relied, does not assist him. In that case M/s. Gilda Textile Agency, who were indenting agents in Andhra Pradesh for cloth merchants residing outside Andhra Pradesh, booked orders, forwarded them to the principals, and received commission on sale of goods despatched to Andhra Pradesh. This Court, agreeing with the High Court, held that the non-resident principals were carrying on the business of selling goods in Andhra Pradesh and that the appellants as their agents were liable to be assessed to tax under section 14-A of the Act. But there is nothing in the present case to show that the non-resident owners of goods were carrying on business of selling goods in the State of Madras through their agents.We are of the view, having regard to the circumstances, that the case should be remanded to the High Court to determine the questions whether the agent of the non-resident supplier was the agent covered by the explanation to the definition of the word "dealer" in section 2(b), whether the property in the goods purchased by the assessee passed within the State of Madras, whether the sale was effected by a dealer resident within the State of Madras, and whether such sale took place after the goods were imported within the State of Madras. The High Court after determining those questions will proceed to dispose of the claim made by the assessee according to law. The High Court may, if it is necessary, call for a finding from the taxing authorities on those questions.