Sen, J. - (1.) O. P. Lodha and others (hereinafter described as the firm) carry on business under the trade name M/s. Prakash Trading Corporation. Its place of business is at No. 161/1. M. G. Road, Calcutta. The business of the firm is to sell goods on its own behalf and also on behalf of 24 other principals on commission agency basis. The Commercial Tax Officer. Colootola Charge assessed the firm to sales tax under Section 6B of the Bengal Finance (Sales Tax) Act, 1941 on total turnover of the firm comprising of sales made by the firm on its own behalf as well as on behalf o 24 principals for whom the firm acted as commission agent. The firm preferred an appeal to the Assistant Commissioner of Commercial Taxes who agreed with the Commercial Tax Officer. The West Bengal Commercial Taxes Tribunal on further appeal, also took the same view.
(2.) On further appeal, the West Bengal Taxation Tribunal came to the conclusion that the assessment of the firm by including in its turnover sales made by it as commission agent of 24 other principals was erroneous in law. It was of the view that the liability of the firm and others for sales tax was confined to the sales effected by it on its own behalf. The sales effected on behalf of 24 other disclosed principals as commission agents had to be assessed separately.
(3.) The contention made on behalf of the firm which found favour with the Taxation Tribunal was that the definition of dealer provided by the Bengal Finance (Sales Tax) Act, 1941 did not permit the Commercial tax Officer to tax a dealer in respect of sales effected on behalf of the principals. The attention of the Tribunal was drawn to the definition of turnover in sales tax laws of some other States where goods sold by an agent on his own account as well as on account of somebody else have been brought within the mischief of the Act by specific words. Reference was made to the case of Ramaswamy Gounder and Sons v. State of Madras, (1973) 32 STC 350 (Mad). There, in the definition of turnover provided by the Tamil Nadu General Sales tax Act, turnover included sales effected by a dealer directly or through another "on his on account or on account of others." These words, according to the Tribunal were crucial for determination of the liability of a dealer in cases where sales were effected on behalf of a disclosed principal. It was contended that unless there were specific words to the contrary, the liability of the dealer would be the same as that of the principal. The agent could not be made liable for any amount of tax for which the principal was not liable. Aggregation of sales effected by a dealer on behalf of as many as 24 principals led to imposition of a higher rate of duty. If the principals were separately assessed, they would have paid a much lower rate of duty. The liability of the agent was co-extensive with that of the principal. If a dealer sells any goods on behalf of the disclosed principal, the Sales Tax Officer has an option to tax the principal or levy tax on the dealer on behalf of the principal. The liability of the dealer, however, will be the same as that of the principal. There is nothing in the Act which permits the Sales Tax Officer to add together the sales made on behalf of as many as 24 principals so that the turnover becomes larger and the rate of tax becomes higher. There was no way the dealer could recover this larger tax from its principals.;