- (1.)IT is proposed to dispose of the above two revision petitions by this common order as they hinge on the same point which relates to the expenses alleged to have been incurred by the opposite party in procuring the wagons and in the delivery of goods. The learned Dy. Commissioner Excise & Taxation has held that these expenses could be taken to be overhead or incidental charges which was necessary expenditure to be incurred and that the purchaser had knowledge of it and had agreed to pay them separately as such. Accordingly these charges could not be part of the sale price and were not subject to tax.
(2.)IN coming to this conclusion, the learned Dy. Commissioner has relied on Rajkumar Biswas vs. Gopalganj INdustrial Bank Ltd. (A. I. R. 1937 Cal. 415) and Nabhi Brother vs. Commissioner of Sales Tax Officer (1960 S. T. C. 605 ).
The contention of the learned Government Advocate is that this expenditure was incurred before the delivery of the goods and falls within the phrase "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 the freight or delivery or the cost of installation in case where such cost is separately charged. " It is his contention that this sum is alleged to have been paid in a clandestine manner to the railway officials for procuring the wagons etc. and as it was paid before the delivery of goods and is other than the cost of freight or delivery, this sum should be included in the sale price.

In support of his contention, he has drawn my attention to the Anakapalli Cooperative Marketing Society, Anakapalli vs. The State of Andhara Pradesh (1966 STC vol. XVIII 329 ). In this case, the assessee, a cooperative marketing society registered under the Cooperative Societies Act held a licence as commission agent under sec. 18 of the Madras General Sales Tax Act, 1939. The members of the Society, who produced jaggery from the sugarcane grown by them in their own lands or in their leasehold lands, effected sales of jaggery through the society, which charged a commission on the sale price. Though the price of jaggery was fixed under the Gur Control Order, the Society used to sell jaggery in open auction at prices higher than those fixed and charge commission from the members on the higher prices. The society maintained two sets of accounts, one a regular account and the other of clandestine account. It was taxed on the basis of the actual turnover computed on the basis of higher prices at which Gur Was sold. The society objected to the assessment inter alia on the ground that it was not liable to tax on illegal transactions. It was held on the facts of the case that the transactions were "sales" within the meaning of the Act and the tax was not confined to lawful business only.

I do not find any relevance of this case in the present dispute. The point for determination before me is whether or not the sums charged by the assessee from its buyers on account of miscellaneous expenditure incurred in connection with the procurement of wagons and delivery of goods can be included in the sale price. It is not questioned that these miscellaneous amounts were charged on account of procurement and loading of wagons and delivery of goods and in the nature of incidental expenses.

In this connection it would be relevant to make a reference to the case of Nabhi Brothers relied upon by the learned Dy. Commissioner in his impugned order. In this case, a dealer in motor cars and spare parts had separately charged in his bills the railway freight and such other charges incurred in effecting delivery of the goods to his customers. It was held by the Orissa High Court that he was entitled to deduct them from the sale price of the goods under Sec. 2 (h) of the Orissa Sales Tax Act, 1947.

Taking into consideration the plain reading of the Section, the learned Judges held that the clear intention of the Legislature was that the cost of freight or delivery or cost of installation when separately charged is to be excluded from the sale price. It was observed by the learned Judges that no authority had been cited before them to show that inspite of the express words used in the section the freight and the other things would be inclusive of the sale price when they are separately charged. Admittedly the petitioner had charged separately the railway freight on the vehicles as also the forwarding charges and incidental charges. The learned Judges therefore, came to the conclusion that the "sale price" does not include the cost of freight or delivery or the cost of installation when such cost is separately charged.

For facility of comparison, it would be desirable to reproduce Clause (a) of Sec, 2 (h) of the Orissa Sales Tax Act and Sec. 2 (p) of the Rajasthan Sales Tax Act : - Orissa Sales Tax Act "sales price" means the amount payable to a dealer as valuable consideration for the sale or supply of any goods, less any sum allowed as cash discount according to ordinary trade practice but including any sum charged for anything done by the dealer in respect of the goods at the time of, or before delivery thereof, other than the cost of freight or delivery or the cost of installation when such cost is separately charged. Raj. Sales Tax Act "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 of the cost of installation in case where such cost is separately charged. It will be seen that substantially the definitions in both the Acts are the same, but for minor verbal changes.

The transaction under examination in the two cases are also exactly similar. The amounts under question were incurred on behalf of the purchasers by the assessee and are no doubt in the nature of incidental expenses incurred for effecting delivery of goods to his customers. They are not included in the sale price, but were incurred on behalf of the purchaser. The intendment of the Legislature is clear from a plain reading of this section that the cost of freight or delivery or cost of installation when separately charged is to be excluded from the "sale price". The assessee is a public Ltd. Co. and its accounts are audited by chartered accountants. There is no allegation of keeping double accounts. It is also not denied that the purchasers have paid these amounts apart from the sale price on account of miscellaneous expenditure duly notified to them as such. The obvious conclusion, therefore, would be that these amounts cannot be included in the sale-price as defined in the Rajasthan Sales Tax Act and are not taxable as such.

In the result, I see no force in these revision petitions which are hereby rejected. .