Decided on November 16,1960



Sinha, J. - (1.) The facts in this case are briefly as follows: The petitioner is a company incorporated under the Indian Companies Act and carries on business as an auctioneer. It is stated in the petition that the business of the petitioner is that of auctioning third party's goods and bringing the seller and buyer together for effecting the sale against a certain rate or percentage of remuneration. The petitioner company is registered as a "dealer" under the provisions of the Bengal Finance Sales Tax Act, 1941 (hereinafter referred to as the "Act"). The petitioner submitted returns for the four quarters ending, last day of March 1950 and for the four quarters ending the last day of March, 1951. It was contended by the petitioner that it was not liable to assessment to sales tax in respect of all its business, as an auctioneer, because as such it was not a "dealer" within the meaning of the said Act. The Commercial Tax Officer by his orders dated 28-10-1954 and 19-11-1954, rejected the contention of the petitioner that it was not liable to sales tax as an auctioneer and assessed the petitioner to sales tax at Rs. 30892/1/- for the four quarters ending March, 1950 and Rs. 7920/11/- for the four quarters ending, last day of, March, 1951. Against the said orders of assessment, the petitioner preferred appeals before the Assistant Commissioner of Commercial Tax,. South Circle, Calcutta, which are still pending. The Commercial Tax Officer, however, without waiting, for the decision of the said appeals, sent a requisition to the certificate officer, Alipore, under Section 5 of the Public Demands Recovery Act, 1930. Certificates were thereupon issued and served on the petitioner. The petitioner preferred objection, contending inter alia that the petitioner was not a "dealer" within the meaning of the said Act, and that the major portion of the assessment related to a period when the Amending Act XLVIII of 1950 had not come into force, which Act had no retrospective operation. On 28-6-1955 the Certificate Officer rejected the contention of the petitioner and relied on a decision of this High Court, of Bose J., Staynor and Co. v. Commercial Tax Officer, 55 Cal WN 583, in which the learned Judge held that an auctioneer 06 goods is a "dealer" within the meaning of Section 2(c)(i) of the said Act. Against the said decision, the petitioner preferred two appeals numbered as 93 and 94 of 1955, before the Additional Collector, 24 Parganas. The Additional Collector by his order dated 24-8-1955 rejected the appeals, also relying on the said decision of Bose, J. In the meanwhile, there had been a sales tax reference to the High Court under Section 21(1) of the said Act, being the Sales Tax Reference Case No. 218 of 1951, Chowringhee Sales Bureau Ltd. v. Member, Board of Revenue, which reference is still pending. It was urged in the appeal that until the reference was heard and decided the matter should be kept pending, but the Additional Collector did not accept this prayer. The appeals were accordingly dismissed. Against the said decision of the Additional Collector, the petitioner took out two revisional applications before the Commissioner Presidency Division. 'On 14-12-1954 the said applications were dismissed. On 10-1-1956 this rule was issued by Bose J. upon the opposite party, to show cause why a writ in the nature of mandamus, should not issue commanding them to rescind, recall and/or forbear from giving effect to the certificates of demands as contained in annexure "A'' to the petition, and/or why a writ in the nature of certiorari should not issue quashing and/or setting aside the proceedings and/or why such further and other orders should not be made as to this Court may seem fit and proper. The learned Judge passed an order for the issue of an interim injunction restraining the opposite parties from realising the demands which were the subject matter of the certificate case mentioned above, until the disposal of the rule. The matter came up for hearing before me on 12-1-1959 when it was adjourned for the purpose of enabling the petitioner to make an amendment by adding certain parties as respondents. In the original application, the respondents Nos. 5 to 8 were not parties and the State of West Bengal was made a party, as represented by the Sales Tax Department of 1C and 1B, Hare Street, Calcutta, which of course, was incompetent, as the State of West Bengal could not be so represented. Thereafter, the State of West Bengal was again made a party, being the respondent No. 9. Thereafter, the amendment has been effected and the matter has again come up before me for hearing. Upon the facts there is very little dispute. It is not disputed that the petitioner company carries on business as an auctioneer in the city of Calcutta and holds periodical auctions of specified goods and chattels belonging to third parties, at their place of business, in the usual way. People come and bid at these periodical auctions and it is not disputed that every one is aware that the goods do not belong to the auctioneer, but have been collected together by them for the purpose of receiving bids and selling them on behalf of the owners, upon payment of a commission, as remuneration. The point, for determination is as to whether upon these facts, an auctioneer can be made liable for sales tax upon sales which are the subject matter of these auctions. As has already been mentioned, the authorities below have all relied on a decision of Bose J. 55 Cal WN 583. That decision is dated 7-2-1951, but the subject matter of the application (Matter No. 80 of 1950) related to a point of time earlier than 6-11-1950 which is the date of the amendment in the said Act, of the definition of the word, "dealer" whereby in explanation 2 the word, "dealer," was expressly stated to include an auctioneer. The position is as follows: The Act, which is an Act of 1941, came into operation on 1-7-1941. In the original Act, the word "dealer" was defined in Section 2(c)(i) and meant any person, firm or Hindu Joint family, engaged in the business of selling or supplying goods in West Bengal, including a co-operative society or a club or association which sells or supplies goods to its members. This definition was amended on or about the 31st March, 1949 with retrospective effect, and inter alia included the Government within the definition. Neither in the original definition nor in this amendment was any mention made of an auctioneer. Thereafter, there was a further amendment which came into operation from 6-11-1950 by Act XLVIII of 1950. This definition is as follows: "Dealer" means any person who carries on the business of selling goods in West Bengal and includes the Government. Explanation 1. A cooperative society or a club or any association which sells goods to its members is a "dealer". Explanation 2. A factor, a broker, a commission agent, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of selling goods and who has, in the customary course of business authority to sell goods belonging to principals is a "dealer". Explanation 3. The manager or an agent in West Bengal of a dealer who resides outside West Bengal and carries on the business of selling goods in West Bengal shall, in respect of such business, be deemed to be a dealer".
(2.) It appears that by a further amendment dated 24-7-1954 the third explanation has been dropped, but it is not relevant for our purpose. It is now possible to understand one of the points made by the petitioner, namely, that the term, "dealer" as used in the original Act did not include an auctioneer, and that it was only introduced into the definition, as and from 6-11-1950 by Act XLVIII of 1950, which Act is not retrospective in operation. It is argued that a major part of the assessment related to a period prior to coming into force of the Amending Act, and therefore, the Commercial Tax Officer was wrong in reading the word, "auctioneer" into the definition of "dealer", prior to the amendment of the definition itself. Ordinarily, there would seem to be no answer to this argument. It is, however, pointed out on behalf of the respondents that the decision of Bose, J., was given at a point of time when the Amending Act had already come into operation and the learned Judge did not deal with this question, but independently of the amendment came to the conclusion that an auctioneer was a "dealer" as originally defined. As against this, it is pointed out that although the learned Judge did not deal with the amendment, he did so advisedly, because although the application was heard and judgment delivered after the amendment had come into operation, the period to be considered and the application itself, was before the amendment. In any event, it is true that in the reported judgment there is no mention of the amendment of the term "dealer" by the Amending Act XLVIII of 1950. It must, therefore, be presumed that in the opinion of the learned Judge the original definition of the word "dealer" Included an auctioneer. Before Bose J. it was contended that an auctioneer was not a "dealer" within the meaning of Section 2(c) of the said Act, and it was argued by a specific reference to the Act and the rules made thereunder, that unless a person selling goods is the owner of the goods he cannot be considered to be a 'dealer' within the meaning of the said Act. The learned Judge very briefly dealt with this question as follows; "It is submitted that this idea pervades the entire scheme of the Act. An auctioneer is not the owner but he simply auctions other people's goods. I cannot accept this contention. An auctioneer has dominion and possession of the goods. It is the stroke of his hammer that completes the sale and transfers property or ownership in the goods to the bidder who purchases the goods. He is the person who is actually engaged in the business of selling the goods. The sales tax is on the transaction of sale and not on the goods. It is because of the sale that the tax is imposed. It is therefore immaterial whether the auctioneer is the owner of the goods or not. I have no hesitation in coming" to the conclusion that the petitioners are dealers within the meaning of Section 2(c)(i) of the Act".
(3.) Mr. Das, appearing on behalf of the petitioner has argued that the learned Judge was wrong in each of the conclusions arrived at by him. He has argued that an auctioneer does not sell goods and is not even a party to the sale He points out that an auctioneer has no dominion over the goods and that the sale can be withdrawn at any moment at the option of the owner of the goods. Whether the strike of his hammer would conclude a sale depends upon the conditions of sale, and the owner might lay down different conditions.;

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