TIRUMALA VENKATESWARA TIMBER AND BAMBOO FIRM v. COMMERCIAL TAX OFFICER, RAJAHMUNDRY November 28. 1967 (J. C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.] Andhra Pradesh General Sales Tax Act 6 of 1957, Explanation III to s. 2(1) (n)-Whetlzer ultra vires-Whether enlarges scope of 'safe' to in- clude transactions which are not sales-Whether discriminato_r;y. The appellant firm carried on business in Andhra Pradesh and was registerecl as a dealer under the Andhra Pradesh General Sales Tax Act 1957.
In its return for the assessment year 1962-63 the firm claimed exemption of certain turnover on the ground that it had sent the goods to its commission agents and under the contract of agency the commission agents were empowered to pay sales-tax and had paid the same directly to the Sales Tax Department. When the Commercial Tax Officer sought to assess the appellant firm on the aforesaid turnover the appellant filed a writ petition in the High Court which was dismissed.
In appeal before this Court by certificate it was contended : (i) that Expianation III to s. 2( 1 )(n) of the Act enlarged the scope of the word 'sale' by treating mere entrustment to an agent as a sale ancl therefore the Explanation was ultra vires; (ii) that the commission agents to whom the appellant had sent the goods for sale had already paid the tax and the appellant could not be taxed again on the same transaction as there was only one sale; (iii) that the Explanation was violative of Art. 14 of the Constitution as it made an arbitrary classification.
HELD : (i) The real effect of the third Explanation is to impose the tax only when there was a transfer of title to the goods and not where there is a mere contract of agency. The Explanation says in effect that
when there is in reality a transfer of property by the principal to the agent and by the agent in his turn to the buyer there are two transactions of sale. The phrase "when the goods are transferred'' in els. (I) and (2) of Explanation III on a proper construction means "when title to the goods is transferred" and so construecl it is impossible to say that the Explana- tion enlarges the scope of the main section. Explanation III is not. there- fore ultra vires. [480 B-E]
State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. 9 S.T.C. 353, referred to. (ii) As a matter of law there is a distinction between a contract of sale and a contract of agency by w1hich the agent is authorised to sell or buy on behalf of the principal and make over either the sale proceeds or the goods to the principal. The essence of a contract of sale is the trans- c
fer of title to the goods for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor for the price to' be paid and not as agent for the proceed• of the sale.
The essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own propertv but as the property of the principal who continues to be the owner of the goods. and will therefore be liable to account for the sale proceeds.
The true relationship of the parties in c VENKATESWARA FIRM I'. C.T.O. (IWmaswami, J.) each case has to be gathered from the nature of the contract, its terms and conoitions, and the terminology used by the parties is not <ieoisive of the legal relationship. [ 480 G–481 Bl
Whether the transactions in the present case were sales or contracts of agency 'Was a mixed question of law and fact and must be investigated with reference to the material which lhe appellant might be able to place before the appropriate authority.
The question was not one· which could be properlv determined in an application under Art. 226 of the Constitu- tion. [482 BJ . W.T. Lamb and Sons v. GorinR Brick Company, Limited (1932] K.B. 7i0, and Hutton v. Lippert [1883] 8 A.C. 309, referred to. (iii) The classification contemplated by the Explanation bet\Veen sales through commission agents who account fully for all coJlections made and -;ales through commission agents \\·ho do- not account for coJlections is based upon an in·elJigible differentia and it has a rational relationship with the object sought to be achieved by the statute. It did not therefore, violate Art. 14. [482 C-D]
C1v1L APPELLATE JuRISDICTIO}I : Civil Appeal No. 2176 of 1966. Appeal from the judgment and order dated April 16, 1964 of lhe Andhra Pradesh High Court in Writ Petition No. 1404 of 1963.
P. Parameswara Rao for R. V. Pillai, for the appellant. P. Ram Reddy and A. V. V. Nair, for the respondent. The Judgment of the.Court was delivered by Ramaswa,mi, J. The appellant is a partnership firm carrying
business in bamboos, timber and firewood at Gokavaram in the State of Andhra Pradesh. The firm ha<.I been registered as a dealer under the Andhra Pradesh General Sales Tax Ace (No. VI of 1957), hereinafter referred to as the 'Act'.
For the assess- ment year 1962-63, the anoellant submitted a return showing a gross tu·nover of Rs. 13,89,130.70 P and claimed exemption on a turnover of Rs. 13,68,174.39 P which according to the appel- lant represented the amount of sales effected 1zy its commission agents and sa!es of firewood.
By a notice dated November 28, 1963, the Commercial Tax Officer, Rajahmundry called upon the appellant to show cause as to why it should not be assessed for the year 1962-63 on a turnover of Rs. 13,89,130.70 Pat 2 per cent.
Eleven items were comprised in the notice. Item No I,- relating to a turnover of Rs. 96,527.HrP was unde.r the firewood account. It was alleged by the appellant that it paid the s'ngle
p.oint tax at 2 per cent to the Forest Department on the amounts for which the forest goods we·e taken in auctio~. As regards items 2 to 11 the a"1Jellant claimed exemotion on the ground that its agents, Messrs. Kusuma Arjayya ·and Batlanki Veera Venkayya, Rajahmundry, paid the tax. ·- The case of the appellant was that LI Sup. C.T./68-l{)
SUPR~ME CO<:.::RT REPORTS [1%8] 2 S.C.R. it sent goods for sale to its commission agents and under the con- trnct of agency the commission agents were empowered to pay ~ales-tax and had paid the same directly to the Sales Tax Depart- ment.
In accordance with the usual commercial practice the commission agents collected Dharmam on the sa'es conducted by them and appropriated those collections for charitable purpose;. The commission agents furnished accounts to the appellant but in these accciunts the amounts collected 10w:1rds sales-tax and Dha- rmam were not specilically shown as it was understood between the ;iarties that the amounts collected towards sales tax
would be remitted to the Sales Tax Department and the amounts co:lected towards Dharmam would be credited to the charity account of th~ cominission agents and suitably utilised by
them. Aggrieved by the assessment notice of the respondent disallowing its claim for exemption the :ippellant-firm filed a writ petition No. 1404 of 1963 dated December 7. 1963 before the High Court:of Andhra Pradesh under Art. 226 of the Constitution p'raying fo• the grant of a writ in the nature of certiorari calling for the records. relatin~ to sales-tax asse,sments of the appellant for the year 1962-63 :m8 quashing the notice dated November 28. 1963 issued by the res- pondent.
By its judgmerlt dated Apcil 16. 1964 the High Court dismi'5cd !be writ petition. This ~ppcal is hrou)!ht by a certifi- :ate ~ra:lled by the High Court. On behalf of 1he appellant it was contended. in the fifat place. that Explanation Ill to s. 2( I) (n) of the Act enlarged the scope of .1he word "sale" and by means of a fiction converted what arc not sales in law into taxable sales for the purpose of the Act and. therefore, the Explanation was ultra vires of the powers
nf the State Legislature which had no ·1cgislative competence to impose a tax under Entry 48 in List IT of Sch Vil of the Con,titution. Section 2 (I) ( n) of the Act defines "sale" as follows :
" ·sale' with all its grammatical variations and cog- nate expressions means every transfer of the property in goods by one person to another in the course of trade or business. for cash, or for deferred payment, or for
any other valuable consideration. (and includes any transfer of materials for money consideration in the execution of a works contract provided that the contract for the transfer of such materials can be separated from
the contract for the services and the W[lrk done, although the two contracts are embodied in a single document) or in the. supply or distribution of goods by a society (including a co-operative sC>Qiety), club, ftrut or asso-
ciations to its members, but does not include a mortgage hypothecation or pledge of, or a charge on !loods; Non :-By Amendment Act 26, 1961, the brac- keted words were substituted for the words 'and includes
c ,r- HNKAHSWARA FIR~! 1', C.T.O. ( Ramaswami, J.) a transfer of property in goods involved in the execution of a works contract. Expla11a1ion Ill :-Notwith;tanding anything con- tained in this Act or in the Indian Sale of Goods Act,
1930 (Central Act IH of 1930), two independent sales or purchases shalL for the purposes of this Act, be Jccmed to have taken place- ( I) when the goods are transferred from a principal
to his selling agent and from the selling agent to the purchaser. or when the QOods are transferred from the seller to a buying agent and fron1 the buying agent to his principiil, if the agei1t is found in eitl1er of
the cases aforesaid-. (i) to have sold the goods at one rate and to have passed on the sale proceeds to his prin- cipal at another rate; or (ii) to have purchased the goods at one rate and
to have passed them on to his principal at another rate; or (iii) not to have accounted to· his principal for the entire collections or deductions made by him. in the sales or purchases effected by
him on behalf of his principal; or (iv) to have acted for a fictitious or non-exi,tcnt principal;" -I 7 9 In our opinion the real object of the Explanation is to prevent the misuse by the assessee of the relationship of principal and agent for the purpose of evading tax. The first situation contemplated by the legislature is that covered by cl. .2(i) of Explanation III where the agent has sold the goods at one rate· and passed on the sale proceeds to its principal, at another rate.
The second situa- lion Is where the agent has purchased the goods at one rate and has passed them on to the principal at another rate. The third situation is where the agent has not accounted to his principal for the entire collections or deductions made by him in the sales or· purchases effected by him on behalf of his principal, and the fourth is where. it appears that.the agent has acted for a fictitious . or non-existent principal. ·It was contended on behalf of the appellant that the State legislature was not competent to convert .. by a legal fiction a mere entrustment' of goods for sale into a sale and to' impose a tax thereon. Jn our opinion, there is no warrant for this argument. . The real effect <;>f the third Explana- I 1968] 2 S.C.R.
tion is to impose the tax only when there was a transfer of title to the goods and not where there is a mere contract of agency. The Explanation says in effect that where there is
in reality a transfer of property by the principal to the agent and by the agen: in his turn to the buyer, there are two transactions of sale. In our opinion, the phrase "when the goods
are transferred" in els. (I) and (2) of Explanation III on a proper construction means "when title to the goods Is transferred" and so construed it is impossible to say that the Explanation enlarges the scope of the main section.
It was pointed out by this Court in The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.(') that the expression "sale of goods" in Entry 48 in List II of Sch. VII of the Government of India Act, 1935, cannot be construed in its popular sense but must be interpreted in its legal sense and should be given the same meaning which it has in the Sale of Goods Act, 1930.
It is a nomen juris, its essential ingredient' being an agreement to sell movables for a price and property passing therein pursuant to that agreement. In other words, it is necessary for constituting a sale that there should be an agree- ment between the parties for the purpose of transferrin~ title in the goods, that the agreement must be supported by money consi- deration and that as a result of the tran~action the title to th~ property must actually pass in the goods.
As we have already pointed out, the third Explanation to s. 2( 1 )( n) of the Act must be interpreted to mean that where there is in reality a transfer of property in the goods hy the principal to the agent ,and by the agent in his turn to the buyer, there are two t·ansactions of sa'e. It is therefore impossible to accept the contention put forward on behalf of the appellant that the Explanation has converted what. in fact, is not a sale into a sale for the purpose of assessment to sales-tax.
It was contended on behalf of the appel'ant that in a"y event items Nos. 2 to 11 of the notice related to goods which the appel- lant had sent for sale to the commission a~ents and as the latter had already paid the sales-tax the appellant was not liable to b~ assessed to tax again on the same transaction as the•e was only one sale.
As a matter of Jaw the•e is a distinction between a contract of sale and a contract of agency by which the ae:ent is au•horised to sell or buy on behalf. of the principal and make
over either the sale proceeds or the 2oods to the orinc;ioal. The essence of a contract of sale is the transfer of title to the goods for a price paid or p•omiscd to be paid. The transfe•ee in such
a case is liable to the transferor as. a debtor for the orice •o be paid and not as agent for the proceeds of the sale. The essence of aeencv to sell is the delivery of the goods to a oerrnn who is to sell them, not as his own property but as the propeny of the (I) 9 S.TC. 351.
c JI c VENKATESWARA FIRM v. C.T.O. (Ramaswami, J.) principal who continues to be the owner of the goods and will £heretore be liable to account for the sale proceeds. The true relationship of the parties in each case has to be gathered from the nature of the contract, its terms and conditions, and the termi- nology used by the parties is not decisive of the legal relation- ship.
For instance, in W. T. Lamb and .Sons v. Goring Brick Company Limited( 1 ) there was an agreement in writing by which certain manufacturers of bricks and other building materials ap- pointed a firm of builders' merchants "sole° selling agents of all bricks and other materials manufactured at their works".
The agreement was expressed to be for three years and afterwards continuous subject to twelve months' notice by either party. While the agreement was in force the t1lanufacturers infonned the mer- chants that they intended in the future to sell their goods them- selves without the intervention of any aj!;ent, and the-reafter they effected sales to customers directly.
It was held by the Court of Appeal that the agreement was one of vendor and purchaser and not one of principal and agent. The same principle is enunciated in Hutton v. Lippert( 2 ), in· which there was a contract between the defendant and E, which in its terms purported to be one of guarantee or agency; that is to say, the defendant guaranteed the sale of E's property in whole or by Jots at a fixed pri"~· E giving the defendant a. power of attorney to deal with the property as he thought fit, and agreeing that he should receive any surplus over and above the fixed price as his commission on and recom- pense for the said guarantee.
It was held by the Judicial Com- mittee, upon a construction of the agreement, that the transaction was really a sale and that the defendant was liable to pay duty on his purchase-money under Act 11 of 1863.
At page 313 of the Report, Sir Robert P. Collier, who delivered the opinion of the Board, stated as follows : "Under these circumstar.~es it appears to their Lord- ships that the Chief Justice was justified in saying that
the effect of the transaction was to give Ekstein every right' whiclr a vendor could legally claim, and to confer upon the defendant every right which a purchaser could legally demand.
Does it make any difference that the parties have called this transaction by the ·name of a guarantee ? It appears to their Lordships that because the parties have used this term 'guarantee' in a sense
which is unusual and not applicable to this case,-for Lippert really guaranteed nothing,-the nature of the transaction is not thereby changed; and because they have said that Lippert was to be entitled to whatever
surplus or balance shall remain on the resale of portions of the property, if any were resold, 'as commission and ———– (!) 119'.!2] K.B. 710. \2) [1883] 8 A.C. 309. LI Sup. Cl '68–17 C;
SUPREMB C-OURT REPORTS [1968) 2 SC.R rec om pcnse for the said guarantee,' this expression docs not convert him from a purchaser into an agent." It is manifest that the question as to whether the transaction; in the present case are sales or contracts of agency is a mixed question of fact and law and must be investigated with reference to the material which the appellant might be able to place before the appropriate authority.
The question is not one which can properly be determined in an application for a writ under Art. 226 of the Constitution. It was also submitted on behalf of the appellant that the third Explanation to s. 2(1) (n) of the Act violated the guarantee under Art. 14 of the Constitution since the classification contemplated, i.e., sales through commission agents who account fully for all collection made and sales through commission agenls who do not account for collections, was not made on any intelligible differen- tia and had no rational relationship to the purpose of the statute. Jn cur opinion, there is no substance in this argument as the classi- fication is based upon an int~:tigible differentia
and it has a rational relationship with the object sought to be achieved by the statute. Counsel for the appellant is therefore unable to make ~ood his submission on this aspect of the case.
For the reasons expressed we hold that the judgment of the High Court of Andhra Pradesh is right and this appeal must be dismissed. In the circumstances of the case we do not propose
to make any order as to costs. Appeal dismissed. c