Case ID: 1092

Judgment:
Appeals Nos. 223 and 224 of 1960. Appeals from the order dated November 23	 1956	 of the Andhra Pradesh High Court	 Hyderabad	 in Tax Revision Cases Nos. 17 and 18 of 1956. 268 C. K. Daphtary	 Solicitor General of India and T. V. B. Tatachari	 for the appellants. K. N. Rajagopal Sastri and D. Gupta	 for the respondent. December 14. The Judgment of the Court was delivered by HIDAYATULLAH	 J. These are two appeals on certificates granted by the High Court of Andhra Pradesh against a common judgment in a sales tax revision filed by the appellants in the High Court. The facts are as follows: In the year 1952 53	 for which the assessment of sales tax was in question	 the appellants dealt in gunnies	 and purchased them from two Mills in Vishakapatnam District and in respect of which they issued delivery orders to third parties	 with whom they had entered into separate transactions. The procedure followed by the appellants was this: They first entered into contracts with the Mills agreeing to purchase gunnies at a certain rate for future delivery. Exhibit A 1 is a specimen of such contracts. The appellants also entered into agreements with the Mills	 by which the Mills agreed to deliver the goods to third parties if requested by the appellants. The Mills	 however	 did not accept the third parties as contracting parties but only as agents of the appellants. Exhibits A 2 and A 2(a) are specimen agreements of this kind. Before the date of delivery	 the appellants entered into agreements with third parties	 by which they charged something extra from the third parties and handed over to them the delivery orders	 which were known as kutcha delivery orders. Exhibits A 3 and A 4 are specimens of the agreement and the delivery orders respectively. The Mills used to deliver the goods against the kutcha delivery orders along with an invoice and a bill	 of which Exs. A 6 and A 7 are specimens respectively	 and collected the sales tax from the third parties. The tax authorities	 however	 treated the transaction between the appellants and third parties as a fresh sale	 and sought to levy sales tax on it 269 again	 which	 the appellants	 contended	 was not demandable	 as there was no second sale. The appellants failed in their contentions before the Deputy Commercial Tax Officer	 Guntur	 and their appeals to the Deputy Commissioner of Commercial Taxes	 Guntur and the Andhra Sales Tax Appellate Tribunal	 Guntur	 were unsuccessful. The appellants then went up in revision to the High Court under the Madras General Sales Tax Act	 1939 (as amended by Madras Act No. 6 of 1951)	 but were again unsuccessful. The High Court	 however	 granted certificates	 on which these appeals have been filed. The contentions of the appellants are that the agreement and the delivery of the kutcha delivery order did not amount to a sale of goods	 but was only an assignment of a right to obtain delivery of the gunnies	 which were not in existence at the time of the transaction with third parties	 and were not appropriated to the contract	 or	 in the alternative	 that this was only an assignment of a forward contract. They seem to have relied in the High Court upon the deci sions of this Court reported in The Sales Tax Officer	 Pilibhit vs Messrs. Budh Prakash Jai Prakash(1) and Poppatlal Shah vs The State of Madras (2) to show that these transactions were not sales. These cases were not relied upon by the appellants before us	 presumably because the High Court has adequately shown their inapplicability to the facts here. The learned Solicitor General appearing for the appellants rested his case entirely upon the first contention	 namely	 that there was only an assignment of a right to obtain delivery of the gunnies and not a sale. He contended that there was only one transaction of sale between the Mills and the third parties	 who	 on the strength of the assignment of the right to take delivery	 had received the goods from the Mills. in our opinion	 this does not represent the true nature of the transactions	 either in fact	 or in law. To begin with	 the Mills had made clear in their agreements that they were not recognising the third parties as contracting parties having privity with (1) ; (2) ; 270 them	 and that delivery would be given against the kutcha delivery orders to the third parties as agents of the appellants. The Mills	 therefore	 recognised only the appellants as contracting parties	 and there was thus a sale to the appellants from the Mills	 on which 	;sales tax was correctly demanded and was paid. In so far as the third parties were concerned	 they had purchased the goods by payment of an extra price	 and the transaction must	 in law and in fact	 be considered a fresh transaction of sale between the appellants and the third parties. A delivery order is a document of title to goods (vide section 2(4) of the Sale of Goods Act)	 and the possessor of such a document has the right not only to receive the goods but also to transfer it to another by endorsement or delivery. At the moment of delivery by the Mills to the third parties	 there were	 in effect	 two deliveries	 one by the Mills to the Appellants	 represented	 in so far as the Mills were concerned	 by the appellants ' agents	 the third parties	 and the other	 by the appellants to the third parties as buyers from the appellants. These two deliveries might synchronise in point of time	 but were separate	 in point of fact and in the eye of law. If a dispute arose as to the goods delivered under the kutcha delivery order to the third parties against the Mills	 action could lie at the instance of the appellants. The third parties could proceed on breach of contract only against the appellants and not against the Mills. In our opinion	 there being two separate transactions of sale	 tax was payable at both the points	 as has been correctly pointed out by the tax authorities and the High Court. The appellants relied upon a decision of the Andhra Pradesh High Court in The State of Andhra vs Kolla Sreeramamurty (3)	 but there	 the facts were different	 and the Division Bench itself in dealing with the case	 distinguished the judgment under appeal	 observing that there was no scope for the application of the principles laid down in the judgment under appeal	 because in the cited case	 "the property in the goods did not pass from the mills to the assessee and (3) Second Appeals Nos. 194 & 195 of 1954 decided on June 27	 1957. 271 there was no agreement of sale of goods to be obtained in future between the assessee and the third party". In the result	 the appeals tail	 and are dismissed with costs. One hearing fee. Appeals dismissed.

Summary:
The respondents dealt in gunnies. They first entered into contracts with two Mills agreeing to purchase gunnies at a certain rate for future delivery	 and also entered into agreement with third parties	 by which they charged something extra from those third parties and handed over the delivery order known as kutcha delivery order. The Mills however did not accept the third parties as contracting parties	 but only as the agents of the appellants and delivered the goods against the kutcha delivery orders	 and collected the Sales Tax from the third parties. The tax authorities treated these transactions between the appellant and the third parties as fresh sales and sought to levy sales tax again	 which the appellants contended	 was not demandable as there were no second sales; the delivery of a kutcha delivery order did not amount to a sale of goods	 but was only an assignment of a right to obtain delivery of gunnies which were not in existence and not appropriated to the contract; this was only an assignment of a forward contract. Held	 that the agreements between the parties showed that third parties were not recognised by the sellers. A delivery order being a document of title to goods	 the possession of such a document not only gave the right to recover the goods but also to transfer them to another by endorsement or delivery. There being two separate transactions of sale	 one between the Mills and the original purchasers and the other between the original purchasers and third parties	 tax was payable at both the points. The Sales Tax officer	 Pilibhit vs M/s. Budh Prakash jai Prakash; 	 	 Poppatlal Shah vs The State of Madras	 ; 	 and The State of Andhra vs Kolla Sreeramamurthy	 decided on June 27	 1957	 referred to.